In an opinion filed June 28, and later ordered modified and published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s $21,160.46 cost award in favor of a prevailing party public agency for costs associated with preparing the administrative record in a CEQA case, despite petitioner’s election to prepare the record, where the petitioner had unreasonably delayed and the agency acted reasonably.  LandWatch San Luis Obispo County v. Cambria Community Services District (2018) ___ Cal.App.5th _____.

As an intended cost-saving measure, CEQA provides that petitioners may elect at the outset of CEQA litigation to prepare the administrative record, but their statutory right to do so is expressly made “subject to certification of [the record’s] accuracy by the public agency, within the [60-day] time limit specified in this subdivision.”  (Pub. Resources Code, § 21167.6(b)(2).)  Thus, CEQA’s “default” assumption is that petitioners electing to prepare the record will have it assembled and present it along with a proposed index to the public agency sufficiently in advance of the 60-day deadline for the agency to timely review it and certify its completeness and accuracy within the deadline.  Of course, in actual practice this rather tight litigation time limit is subject to “slippage,” especially where, as is often the case, the record is large and/or petitioner does not yet have all the documents needed to prepare it. Accordingly, CEQA provides that it may be extended, either by stipulation of the parties who have been properly served in the action or by court order, and that courts shall liberally grant extensions when the size of the record renders compliance with the time limit infeasible.  (Pub. Resources Code, § 21167.6(c).)

While the 60-day time limit may thus be extended for good cause, it may not be ignored.  Diligence and attentiveness to this, and to CEQA’s other expedited litigation deadlines, are important.  In that vein, it appears that petitioner/appellant LandWatch learned the hard way in this case that when a petitioner who has elected to prepare the record disregards the 60-day time limit (and its related obligations to cooperate with the respondent lead agency or show good cause to the court for extensions), it does so at its own peril.  The agency may at some point decide to seize control of and expedite a stalled record preparation process and, if successful in the action, later recover its resulting record preparation costs from petitioner.

Obviously, in this area of the law the facts of each particular case will drive the result.  The fault for delays may lie with one side, or the other, or be shared.  In this case (at least as presented in the Court of Appeal’s brief opinion), the relevant facts evidenced dilatory record-preparation conduct on the petitioner’s part, in a context where the litigation was holding up the release by County of $4.3 million in project grant funds, thus putting respondent agency Cambria Community Services District (District) in financial distress.

LandWatch had sued the District, challenging its decision to approve a water supply project as exempt from CEQA, and elected to prepare the record.  It filed its action on October 14, 2014, having sent District a Public Records Act (PRA) request four days earlier requesting all public records relating to the project approval and Notice of Exemption (NOE), in anticipation of its need to prepare the record.  District produced all responsive documents in November.  In December 2014, it notified LandWatch it had additional documents it would mail upon receiving $34.80 in costs, but LandWatch did not request these documents until March 2015, at which time District had to re-gather them, and they were produced in April 2015.  (It appears these additional documents were documents post-dating the date on which District contended that project approval occurred, and that District thus took the position in that they were not properly part of the administrative record, although they may have been responsive to LandWatch’s PRA request.)

It was not until another four months had passed – in August 2015 – that LandWatch presented District with a draft record index.  District promptly reviewed the proposed index and wrote LandWatch, on August 19, 2015, that it was under-inclusive in failing to include the January 30, 2014 resolution approving the project, and over-inclusive in including documents created after that project approval date.  The letter thus indicated District had prepared a new index to expedite the process, and it certified what it determined to be the proper administrative record that same day.

LandWatch then moved for an order including post-January 30, 2014 documents in the record.  (While not explicit or clear from the Court’s opinion, it appears a statute of limitations issue was lurking in the background of the parties’ apparent dispute over the project approval date, since the facts in the opinion show the action was filed eight and one-half months after what District contended was the January 30, 2014 project approval date – obviously well beyond CEQA’s maximum 180-day statute of limitations measured from that approval date.)

By December 3, 2015 ruling, the trial court ordered District to certify the supplemental documents and place them in a separate appendix to the certified record, but also ruled that despite LandWatch’s election to prepare to record, and because of the time delays, the District properly “took it upon itself” to complete preparation of and certify the record, which included documents up until January 30, 2014.  After waiting several more weeks for LandWatch to provide it with the “supplemental appendix” documents it wanted certified, and facing a March 23, 2016 trial date, District wrote a February 5, 2016 letter demanding that LandWatch produce the documents by February 10, 2016, or District would prepare the supplemental appendix itself.  When LandWatch ignored its demand, District prepared the supplemental appendix and provided it to its clerk to certify on February 17, 2016.  LandWatch emailed District two days later on February 19, stating it “was working on its own version of the [supplemental] appendix,” but by this time District was unwilling to start the process over.

The trial court denied LandWatch’s subsequent motion to have it reject District’s certified supplemental appendix, and to certify LandWatch’s appendix instead, ruling that District had complied with its prior ruling.  After trial, it also denied LandWatch’s writ petition, finding the project was approved on January 30, 2014, and was also exempt from CEQA.

Prevailing party District then filed a cost bill seeking $38,836.54, which included $4,299.01 for preparation of the certified administrative record (which was only 422 pages) and $26,922.46 for preparation of the record “appendix” (which consisted of 7,683 pages).  LandWatch filed a motion to tax, as a result of which the trial court awarded District a total of $21,160.46 in costs.  The trial court rejected LandWatch’s arguments that its election to prepare the record precluded District’s recovery of any record preparation costs, stating:  “[T]here were delays in completing the record and the court found that the District properly took over the process and produced a certified administrative record.”

On appeal, LandWatch challenged $18,230.35 of the cost award attributable to District’s preparation of the record and appendix.  In affirming the cost order, and further awarding costs on appeal to District, the Court of Appeal made the following significant points and holdings:

• While LandWatch gave timely notice of its election to prepare the record, it ignored the statutory requirement that it do so within 60 days. (Pub. Resources Code, § 21167.6(b)(1).)
• Having served notice of its election on October 14, 2014, LandWatch did not produce a draft administrative record index until August 2015 (about 10 months later), and it failed to timely reply to District’s subsequent February 2016 demand for the documents LandWatch wanted certified.
• LandWatch’s “attempts to shift the blame for the delay onto the District by stating the evidence in a light most favorable to itself” were not cognizable under applicable standard of appellate review. Instead, the Court “look[ed] only to the evidence supporting the prevailing party,” disregarded unfavorable evidence as lacking sufficient veracity to be accepted by the trier of fact, and accepted all the trier of fact’s reasonable inferences from the evidence, noting that the trier of fact was “not required to believe even uncontradicted testimony.”
• Per the Court: “Here the trial court expressly found that the District acted properly in preparing the record. Implicit in that finding is that LandWatch unreasonably delayed.  LandWatch’s right to prepare the record is subject to a 60-day limitation.  Having unreasonably delayed, it forfeited that right.”
• The Court found support for its holding in Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, a case in which petitioner presented an incomplete record for certification, the agency obtained an order allowing supplementation, and the Court of Appeal reversed the trial court’s denial of resulting costs to the agency on the basis of petitioners’ election to prepare the record. The Coalition court held a petitioner’s election “does not ipso facto bar the [agency’s] recovery of record preparation costs” and observed that such an election and the 60-day time limit “are interrelated.”
• The Court rejected LandWatch’s attempt to distinguish Coalition “because there the agency did not prepare the entire record and obtained permission from the trial court before preparing the supplemental record.” It reasoned: “Every case has its unique facts, and the point is that under the appropriate circumstances the trial court has discretion to award the agency costs for preparing the record notwithstanding the petitioner’s election …. [¶] That is what the trial court did here and it was well within its discretion.  The District has the right to a timely record.”
• The Court rejected LandWatch’s argument that it should not be responsible for District’s costs to prepare the separate appendix because the District (ultimately correctly) asserted such post-January 30, 2014 project approval documents were not properly part of the administrative record. The Court noted that LandWatch had erroneously insisted in the trial court, over the District’s proper objection, that those documents were part of the record.  Per the Court: “For LandWatch to now assert that the appendix is not part of the record to escape the costs it created is fanciful, if not perverse.”
• The trial court did not abuse its discretion in determining cost items were reasonably necessary and that the costs awarded were reasonable. It awarded $4,299.01 for preparation of the administrative record (the full amount District requested) and $10,029.58 for preparation of the appendix (half of what District requested), reasoning District’s $20,059.17 request for the latter was “on the high side,” involved efforts that overlapped with record preparation, and that District most likely had some culpability in causing the higher appendix costs.
• Ultimately, the total award for preparation of the 8,105 pages comprising both the record and the appendix amounted to $1.77 per page, which the Court of Appeal found to be “on the low side of reasonable.” Per the Court:  “[G]iven that LandWatch erroneously insisted on the appendix, the trial court would have been well within its discretion to give the District the total amount it claimed.”
• Finally, the Court also rejected LandWatch’s challenges to various individual cost items as legally or factually meritless, noting cost items not specifically allowed or prohibited under CCP § 1033.5 may be allowed in the trial court’s discretion if reasonably necessary to the conduct of the litigation.

While CEQA cases involving disputes over responsibility for record preparation costs resulting from delays in record preparation will ultimately turn on their unique facts, the lessons to be learned from the Court’s opinion here can be simply stated:  (1) don’t ignore or “blow off” the 60-day deadline; (2) be responsible and diligent in preparing the record and in communicating with the opposing party (and, if needed, the trial court) regarding any record preparation delays and needed extensions; and (3) don’t rely on an election to prepare the record to immunize you from cost liability to an agency that takes over the record preparation process after you ignore lessons (1) and (2).