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1 PACHOWICZ|GOLDENRING
A PROFESSIONAL LAW CORPORATION
2 PETER A. GOLDENRING (Bar No. 79387)
peter@gopro-law.com
3 6050 Seahawk Street
Ventura, California 93003
4 Telephone: 805.642.6702
Facsimile: 805.642.3145
5
DOWNEY BRAND LLP
6 KEVIN M. O’BRIEN (Bar No. 122713)
kobrien@downeybrand.com
7 MEREDITH E. NIKKEL (Bar No. 254818)
mnikkel@downeybrand.com
8 BRIAN E. HAMILTON (Bar No. 295994)
bhamilton@downeybrand.com
9 HOLLY E. TOKAR (Bar No. 334288)
htokar@downeybrand.com
10 621 Capitol Mall, 18th Floor
Sacramento, California 95814
11 Telephone: 916.444.1000
Facsimile: 916.444.2100
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DOWNEY BRAND LLP
Attorneys for Petitioner and Plaintiff LAS
13 POSAS BASIN WATER RIGHTS COALITION
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF SANTA BARBARA
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17 LAS POSAS BASIN WATER RIGHTS Case No. 21CV03714
COALITION, an unincorporated association,
18 Related Case Nos. VENCI0050970;
Petitioner and Plaintiff, 20CV02036
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v. PLAINTIFF’S MEMORANDUM OF
20 POINTS AND AUTHORITIES IN
FOX CANYON GROUNDWATER SUPPORT OF MOTION TO STRIKE OR
21 MANAGEMENT AGENCY, a public entity, TAX COSTS
22 Respondent and Defendant. Date: September 21, 2022
Time: 10:00 a.m.
23 Dept: 3
DOES 1-100, Judge: Honorable Thomas P. Anderle
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Real Parties in Interest. Assigned for all purposes to the Honorable
25 Thomas P. Anderle, Dept. 3
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 I. INTRODUCTION
2 Plaintiff and Petitioner LAS POSAS BASIN WATER RIGHTS COALITION
3 (“Petitioner”) by and through its counsel, move to tax Defendant and Respondent FOX CANYON
4 GROUNDWATER MANAGEMENT AGENCY’s (“Fox Canyon”) costs. Fox Canyon filed a
5 memorandum of litigation costs under Code of Civil Procedure section 1032. (See Memorandum
6 of Costs (“MOC”) (June 23, 2022).). Fox Canyon asserts that it is entitled to costs under Public
7 Resources Code section 21167.6. (Id. at p. 5.) The Court should strike or significantly tax Fox
8 Canyon’s requested costs for the following reasons: (1) Fox Canyon is not entitled to fees and
9 costs for assembling documents required for the record of decision where Petitioner elected to
10 prepare the record of decision; and (2) alternatively, the costs Fox Canyon seeks far exceed “the
11 reasonable cost in light of the scope of the record.” (Pub. Resources Code, § 21167.6, subd. (f).)
12 II. RELEVANT PROCEDURAL HISTORY
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13 Petitioner filed a Petition for Writ of Mandamus and Complaint (the “Petition”) in the
14 above-captioned on September 17, 2021. 1 The Petition challenged the adoption by Fox Canyon of
15 “An Ordinance to Establish an Extraction Allocation System for the Las Posas Groundwater
16 Basin” (the “Allocation Ordinance”) on December 14, 2020. As part of the adoption of the
17 Allocation Ordinance, Fox Canyon adopted a Notice of Exemption upon a finding that the
18 California Environmental Protection Act (“CEQA”) did not apply. (Petition ¶ 27.) The
19 Allocation Ordinance purports to limit the amount of water individual well owners may extract
20 from the Las Posas Basin. The Allocation Ordinance became operative on October 1, 2021.
21 (Petition ¶ 20.)
22 On December 7, 2021, the parties filed a stipulation to continue the deadline for
23 certification of the administrative record until February 11, 2022. (Stipulation and Proposed Order
24 re Administrative Record (Dec. 7, 2021), at 2.) On the same day, Petitioner filed a Request for
25 Hearing pursuant to Public Resources Code section 21167.4, requesting that the Court defer
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Petitioners respectfully request that the Court take judicial notice of the Petition and all other
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records in this action cited herein. (Code Civ. Proc., § 452, subd. (d); People v. Preslie (1977)
28 70 Cal.App.3d 487, 493.)
1815643v4 2
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 setting a hearing until after the parties have had a chance to meet and confer regarding the status of
2 the administrative record and appropriate briefing and hearing schedule. (Request for Hearing
3 (Dec. 7, 2021), at 2.) The parties entered into two additional stipulations to extend the deadline
4 for certification of the administrative record, first to February 11, 2022 and second to April 12,
5 2022. (Third Stipulation and Proposed Order re Administrative Record (Apr. 12, 2022), at 2-3.)
6 In April 2022, counsel for Petitioner corresponded via email with counsel for Fox Canyon
7 about case management issues. (Declaration of Brian E. Hamilton (“Hamilton Decl.”) Ex. A.)
8 Petitioner sought to defer the preparation of the record of decision until the conclusion of the
9 Phase 2 trial in the related comprehensive adjudication, and Fox Canyon sought to go forward
10 with preparation of the record and resolution of the writ on the merits. (Id. [Apr. 5, 2022 email
11 from M. Nikkel].) In the course of that communication, counsel for Fox Canyon cited the case
12 Landwatch San Luis Obispo County v. Cambria Community Services District (2018)
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13 25 Cal.App.5th 638 in support of the assertion that Petitioner would be required to bear the costs
14 of Fox Canyon to prepare the record if Petitioner did not do so in a timely manner.
15 (Hamilton Decl. Ex. A [Apr. 6, 2022 email from T. Taylor].) Counsel for Petitioner responded
16 that Landwatch did not apply because no hearing date had been set and a genuine dispute
17 remained between the parties regarding the sequencing of the above-captioned matter with the
18 related comprehensive adjudication. (Id. [Apr. 7, 2022 email from M. Nikkel].)
19 Petitioner sought an additional extension of the deadline for certification of the
20 administrative record, which Fox Canyon opposed. (Petitioner’s Complex Case Management
21 Statement (“CCMS”) (Apr. 22, 2022); Fox Canyon CCMS (Apr. 21, 2022).) Fox Canyon
22 requested that the preparation of the administrative record by Petitioners go forward, stating:
23 “[Fox Canyon] also advised Petitioner that [Fox Canyon] expects that Petitioner will proceed
24 without further delay to prepare the record.” (Fox Canyon CCMS, 2:14-16.) Fox Canyon gave no
25 indication to the Court either in its Complex Case Management Statement or at the May 6, 2022
26 Complex Case Management Conference that it believed that Petitioners could not meet the
27 deadline it sought, June 13, 2022. (Hamilton Decl. ¶ 3.) On May 6, 2022, the Court ordered
28 Petitioner to prepare the administrative record by June 13, 2022, the date requested by Fox
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 Canyon. (Complex Case Management Order (May 6, 2022), at p. 8.) The Court further ordered
2 that Fox Canyon would have until June 22, 2022 to certify the administrative record. (Ibid.)
3 On May 6, 2022, the same day as the Complex Case Management Conference and
4 consistent with its election to prepare the administrative record, Petitioner sent a request to Fox
5 Canyon for all documents constituting the administrative record pursuant to the California Public
6 Records Act (the “PRA Request”). (Hamilton Decl. Ex. B.) On May 10, 2022, Petitioner sent an
7 email to counsel for Fox Canyon stating that Petitioner would assemble the administrative record
8 pursuant to Petitioner’s election under Public Resources Code section 21167.6. (Hamilton Decl.
9 Ex. C [May 10, 2022 email from B. Hamilton].) Counsel for Petitioner further advised counsel for
10 Fox Canyon that Fox Canyon should not undertake any additional work or incur additional
11 expense to collect and review documents and prepare the administrative record other than its
12 obligations to comply with the Court’s order, the PRA Request, and Public Resources Code
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13 section 21167.6. (Ibid.) Counsel for Fox Canyon responded that it was entitled to cost for “staff
14 and related time to assemble the documents” pursuant to St. Vincent’s School for Boys, Catholic
15 Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989. (Hamilton Decl. Ex. C [May 10
16 email from T. Taylor].) Counsel for Petitioner distinguished this case and advised Fox Canyon
17 that it should not incur costs to assemble a record. (Id. [May 10, 2022 email from B. Hamilton])
18 On May 31, 2022, Petitioner dismissed the Petition without prejudice. On June 23, 2022,
19 Fox Canyon filed a Memorandum of Costs against Petitioner. Fox Canyon requested a total of
20 $28,657.18 for “other” costs. (MOC at p. 1.) Petitioner timely filed this motion to tax costs.
21 III. LEGAL ARGUMENT
22 A. Fox Canyon Is Not Entitled to Costs to Prepare the Record of Decision
Because Petitioner Elected to Prepare the Record of Decision.
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The only statutory basis that Fox Canyon cites for fees is Public Resources Code section
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21167.6. Public Resources Code section 21167.6, subdivision (b)(1) provides that where the
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public agency prepares the record of decision, “[t]he parties shall pay any reasonable costs or fees
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imposed for the preparation of the record of proceedings in conformance with any law or rules of
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court.” Public Resources Code section 21167.6, subdivision (b)(2), however, provides that the
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 Petitioner may alternatively elect to prepare the record of proceedings. There is no statutory
2 provision requiring a petitioner to pay fees and costs to the public agency where the petitioner
3 elects to prepare the record of decision itself.
4 In correspondence with Petitioner’s counsel following Petitioner’s PRA Request, Fox
5 Canyon asserted that it was entitled to its reasonable fees and costs despite Petitioner’s election to
6 prepare the record. (Hamilton Decl. Exhs. A & C.) In support of its position, Fox Canyon cited to
7 St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161
8 Cal.App.4th 989 (“St. Vincent’s School for Boys”) and Landwatch San Luis Obispo County v.
9 Cambria Community Services District (2018) 25 Cal.App.5th 638 (Landwatch). (Hamilton Decl.
10 Ex. B & C.) In St. Vincent’s School for Boys, the court determined that the respondent agency was
11 allowed to seek record preparation costs under Public Resources Code section 21167.6,
12 subdivision (b)(1), despite the petitioner’s election to prepare the record only after making a
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13 finding that the petitioner had abandoned its statutory duty to control costs imposed on the
14 respondent agency and made overly broad, non-essential discovery demands that caused the
15 respondent agency to incur significant unreasonable costs. (St. Vincent’s School for Boys, supra,
16 161 Cal.App.4th at p. 1019.) The respondent agency was entitled to fees despite an election by the
17 petitioner to prepare the record only after the respondent was required to prepare the record itself
18 as a result of delays by the petitioner. In Landwatch, the respondent agency only prepared the
19 record six weeks before the hearing date on the writ petition, and after sending a letter to the
20 petitioner informing the petitioner that it had five days to prepare the record itself before the
21 agency would do so. (Id. at 643.)
22 Here, no hearing date had been set, and until the May 6, 2022 Complex Case Management
23 Conference, there was a genuine dispute between the parties regarding the sequencing of the writ
24 petition with respect to the conclusion of the related comprehensive groundwater adjudication.
25 This is not a case of Petitioner ignoring its obligation to prepare the record as in Landwatch.
26 (Hamilton Decl. ¶ 2, Ex. A.) Nor are there any facts to support a claim here that Fox Canyon was
27 required to prepare the record itself such that it is entitled to recover fees as in St. Vincent’s School
28 for Boys. There was no unwarranted delay, and Petitioner did not fail to take any steps to collect
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 the documents for preparation of the record of decision. Petitioner submitted the PRA Request
2 immediately after the Court ordered that no stay would be granted, and there was no reason to
3 expect that the Fox Canyon could not timely provide the requested documents or that Petitioner
4 would be unable to timely prepare the record. (Hamilton Decl. Ex. B.) Fox Canyon made no
5 mention at the hearing that the deadline was too soon or that it had any inability to timely produce
6 the documents or any prejudice caused by the timing of the deadlines. (Hamilton Decl. ¶ 3.) Even
7 Fox Canyon acknowledged that Petitioner would prepare the record, stating: “[Fox Canyon] also
8 advised Petitioner that [Fox Canyon] expects that Petitioner will proceed without further delay to
9 prepare the record.” (Fox Canyon CCMS, 2:14-16.)
10 Allowing Fox Canyon to nevertheless recover its costs in these circumstances “would
11 defeat the Legislature’s aim of providing for lower-cost record preparation alternatives.”
12 (Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th
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13 1043, 1059.) Because Petitioner elected to prepare the record of decision and took the necessary
14 steps to do so, Fox Canyon is not entitled to recover the costs it seeks.
15 B. Fox Canyon’s Cost Memorandum Is Insufficient to Establish that Its Claimed
Costs Were Reasonable and Necessary.
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As argued above, Fox Canyon is not entitled to any costs for preparing the record where
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Petitioners elected to prepare the record and proceeded to do so. In the alternative, Fox Canyon’s
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claimed costs should be stricken or taxed as unreasonable. Where the public agency prepares the
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record of proceeding in a CEQA matter, the respondent party must only pay “reasonable costs or
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fees imposed for the preparation of the record.” (Pub. Resources Code, § 21167.6, subd. (b)(1).)
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“In preparing the record of proceedings, the party preparing the record shall strive to do so at
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reasonable cost in light of the scope of the record.” (Id., § 21167.6, subd. (f).) The “cost-
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containment policy embodied in section 21167.6” is a “solemn statutory obligation,” not a mere
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suggestion. (St. Vincent’s School for Boys, supra, 161 Cal.App.4th at p. 1019.) Section 21167.6,
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subdivision (b), is intended to “advance[] the legislative purpose of enabling the petitioner to
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minimize the cost of record preparation.” (St. Vincent’s School for Boys, supra, 161 Cal.App.4th
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at p. 1019.) The party preparing the record “is bound by the statutory mandate to minimize costs,
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 which the trial court enforces by taxing unreasonable costs.” (Ibid.)
2 Here, Petitioner sought to challenge the decision by Fox Canyon that the adoption of a
3 local ordinance regulating groundwater was exempt from CEQA. (Petition ¶ 27.) This was a case
4 about Fox Canyon’s decision to do nothing. This was not, for example, a case about a wide-
5 ranging environmental impact report for a complex project. The record of decision thus should
6 have been quite simple to prepare. But Fox Canyon seeks costs of $28,657.18 for 124.20 hours of
7 time, including review by Fox Canyon’s groundwater manager, board clerk, paralegal, legal
8 assistant, and IT department. In addition, Fox Canyon seeks to recover the cost of the time spent
9 by two additional paralegals at Fox Canyon’s law firm. Fox Canyon provides no context to
10 explain why seven different individuals, including three separate paralegals, were required to
11 spend 124.20 hours to prepare the record.
12 Courts closely scrutinize any attorney or paralegal fees claimed as record preparation costs
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13 to ensure that such time does not “‘[go] beyond that [time] merely related to preparation [of the
14 record],’ such as preparing the [party’s] own case.” Attorney and paralegal time spent related to
15 the review and analysis of the documents produced are the type of costs the court rejected in
16 Coalition as it is far more than mere “labor” necessary to physically assemble a record. (Coalition
17 for Adequate Review v. City and County of San Francisco, supra, 229 Cal.App.4th 1043, 1059.)
18 The reasonableness of Fox Canyon’s costs is further colored by Fox Canyon’s insistence
19 on incurring significant costs despite Petitioner’s election to prepare the record of decision,
20 Petitioner’s diligence in preparing the record, and Petitioner’s affirmative requests to Fox Canyon
21 that Fox Canyon should not prepare the record. Allowing Fox Canyon to collect such
22 unreasonable costs would contradict the legislative purpose of allowing the petitioner to control
23 costs in a CEQA action by electing to prepare the record of decision. (See St. Vincent’s School for
24 Boys, supra, 161 Cal.App.4th at p. 1019.) Instead, granting costs would not only reward Fox
25 Canyon for ignoring Petitioner’s election, but for undertaking absurd costs that have no
26 relationship to the record being prepared. Permitting such tactics will only serve to squelch
27 legitimate citizen participation in CEQA decisions by allowing agencies to financially punish
28 those citizens for daring to scrutinize the agency.
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 Therefore, the court should strike or tax all of Fox Canyon’s claimed costs as
2 unreasonable.
3 IV. CONCLUSION
4 For these reasons, the Court should strike Fox Canyon’s claimed costs.
5
6 DATED: July 12, 2022 DOWNEY BRAND LLP
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By:
9 BRIAN E. HAMILTON
Attorneys for Petitioner and Plaintiff LAS POSAS
10 BASIN WATER RIGHTS COALITION
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 PROOF OF SERVICE
2 Las Posas Basin Water Rights Coalition v. Fox Canyon Groundwater Management Agency
Case No. 21CV03714
3
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
4
At the time of service, I was over 18 years of age and not a party to this action. I am
5 employed in the County of Sacramento, State of California. My business address is 621 Capitol
Mall, 18th Floor, Sacramento, CA 95814.
6
On July 12, 2022, I served true copies of the following document(s) described as
7 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO STRIKE OR TAX COSTS on the interested parties in this action as follows:
8
SEE ATTACHED SERVICE LIST
9
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
10 persons at the addresses listed in the Service List and placed the envelope for collection and
mailing, following our ordinary business practices. I am readily familiar with the practice of
11 Downey Brand LLP for collecting and processing correspondence for mailing. On the same day
that correspondence is placed for collection and mailing, it is deposited in the ordinary course of
12 business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I
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am a resident or employed in the county where the mailing occurred. The envelope was placed in
13 the mail at Sacramento, California.
14 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
document(s) to be sent from e-mail address hmills@downeybrand.com to the persons at the e-mail
15 addresses listed in the Service List. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was unsuccessful.
16
I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct.
18 Executed on July 12, 2022, at Sacramento, California.
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Holly Mills
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
1 SERVICE LIST
Las Posas Basin Water Rights Coalition v. Fox Canyon Groundwater Management Agency
2 Case No. 21CV03714
3 Elizabeth P. Ewens
Timothy Taylor
4 Janeele S.H. Krattiger
Heraclio Pimentel
5 STOEL RIVES LLP
500 Capitol Mall, Suite 1600
6 Sacramento, CA 95814
elizabeth.ewens@stoel.com
7 tim.taylor@stoel.com
janelle.krattiger@stoel.com
8 heraclio.pimentel@stoel.com
9 Attorneys for Respondent/Defendant Fox
Canyon Groundwater Management Agency
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11 Peter A. Goldenring
Mark R. Pachowicz
12 PACHOWICZ GOLDENRING, PLC
DOWNEY BRAND LLP
6050 Seahawk St.
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Ventura, CA 93003-6622
14 805-642-6702
peter@gopro-law.com
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Attorneys for Petitioner and Plaintiff
16 Las Posas Basin Water Rights Coalition
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS
Preview
1 PACHOWICZ|GOLDENRING A PROFESSIONAL LAW CORPORATION 2 PETER A. GOLDENRING (Bar No. 79387) peter@gopro-law.com 3 6050 Seahawk Street Ventura, California 93003 4 Telephone: 805.642.6702 Facsimile: 805.642.3145 5 DOWNEY BRAND LLP 6 KEVIN M. O’BRIEN (Bar No. 122713) kobrien@downeybrand.com 7 MEREDITH E. NIKKEL (Bar No. 254818) mnikkel@downeybrand.com 8 BRIAN E. HAMILTON (Bar No. 295994) bhamilton@downeybrand.com 9 HOLLY E. TOKAR (Bar No. 334288) htokar@downeybrand.com 10 621 Capitol Mall, 18th Floor Sacramento, California 95814 11 Telephone: 916.444.1000 Facsimile: 916.444.2100 12 DOWNEY BRAND LLP Attorneys for Petitioner and Plaintiff LAS 13 POSAS BASIN WATER RIGHTS COALITION 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF SANTA BARBARA 16 17 LAS POSAS BASIN WATER RIGHTS Case No. 21CV03714 COALITION, an unincorporated association, 18 Related Case Nos. VENCI0050970; Petitioner and Plaintiff, 20CV02036 19 v. PLAINTIFF’S MEMORANDUM OF 20 POINTS AND AUTHORITIES IN FOX CANYON GROUNDWATER SUPPORT OF MOTION TO STRIKE OR 21 MANAGEMENT AGENCY, a public entity, TAX COSTS 22 Respondent and Defendant. Date: September 21, 2022 Time: 10:00 a.m. 23 Dept: 3 DOES 1-100, Judge: Honorable Thomas P. Anderle 24 Real Parties in Interest. Assigned for all purposes to the Honorable 25 Thomas P. Anderle, Dept. 3 26 27 28 1815643v4 1 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 I. INTRODUCTION 2 Plaintiff and Petitioner LAS POSAS BASIN WATER RIGHTS COALITION 3 (“Petitioner”) by and through its counsel, move to tax Defendant and Respondent FOX CANYON 4 GROUNDWATER MANAGEMENT AGENCY’s (“Fox Canyon”) costs. Fox Canyon filed a 5 memorandum of litigation costs under Code of Civil Procedure section 1032. (See Memorandum 6 of Costs (“MOC”) (June 23, 2022).). Fox Canyon asserts that it is entitled to costs under Public 7 Resources Code section 21167.6. (Id. at p. 5.) The Court should strike or significantly tax Fox 8 Canyon’s requested costs for the following reasons: (1) Fox Canyon is not entitled to fees and 9 costs for assembling documents required for the record of decision where Petitioner elected to 10 prepare the record of decision; and (2) alternatively, the costs Fox Canyon seeks far exceed “the 11 reasonable cost in light of the scope of the record.” (Pub. Resources Code, § 21167.6, subd. (f).) 12 II. RELEVANT PROCEDURAL HISTORY DOWNEY BRAND LLP 13 Petitioner filed a Petition for Writ of Mandamus and Complaint (the “Petition”) in the 14 above-captioned on September 17, 2021. 1 The Petition challenged the adoption by Fox Canyon of 15 “An Ordinance to Establish an Extraction Allocation System for the Las Posas Groundwater 16 Basin” (the “Allocation Ordinance”) on December 14, 2020. As part of the adoption of the 17 Allocation Ordinance, Fox Canyon adopted a Notice of Exemption upon a finding that the 18 California Environmental Protection Act (“CEQA”) did not apply. (Petition ¶ 27.) The 19 Allocation Ordinance purports to limit the amount of water individual well owners may extract 20 from the Las Posas Basin. The Allocation Ordinance became operative on October 1, 2021. 21 (Petition ¶ 20.) 22 On December 7, 2021, the parties filed a stipulation to continue the deadline for 23 certification of the administrative record until February 11, 2022. (Stipulation and Proposed Order 24 re Administrative Record (Dec. 7, 2021), at 2.) On the same day, Petitioner filed a Request for 25 Hearing pursuant to Public Resources Code section 21167.4, requesting that the Court defer 26 1 Petitioners respectfully request that the Court take judicial notice of the Petition and all other 27 records in this action cited herein. (Code Civ. Proc., § 452, subd. (d); People v. Preslie (1977) 28 70 Cal.App.3d 487, 493.) 1815643v4 2 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 setting a hearing until after the parties have had a chance to meet and confer regarding the status of 2 the administrative record and appropriate briefing and hearing schedule. (Request for Hearing 3 (Dec. 7, 2021), at 2.) The parties entered into two additional stipulations to extend the deadline 4 for certification of the administrative record, first to February 11, 2022 and second to April 12, 5 2022. (Third Stipulation and Proposed Order re Administrative Record (Apr. 12, 2022), at 2-3.) 6 In April 2022, counsel for Petitioner corresponded via email with counsel for Fox Canyon 7 about case management issues. (Declaration of Brian E. Hamilton (“Hamilton Decl.”) Ex. A.) 8 Petitioner sought to defer the preparation of the record of decision until the conclusion of the 9 Phase 2 trial in the related comprehensive adjudication, and Fox Canyon sought to go forward 10 with preparation of the record and resolution of the writ on the merits. (Id. [Apr. 5, 2022 email 11 from M. Nikkel].) In the course of that communication, counsel for Fox Canyon cited the case 12 Landwatch San Luis Obispo County v. Cambria Community Services District (2018) DOWNEY BRAND LLP 13 25 Cal.App.5th 638 in support of the assertion that Petitioner would be required to bear the costs 14 of Fox Canyon to prepare the record if Petitioner did not do so in a timely manner. 15 (Hamilton Decl. Ex. A [Apr. 6, 2022 email from T. Taylor].) Counsel for Petitioner responded 16 that Landwatch did not apply because no hearing date had been set and a genuine dispute 17 remained between the parties regarding the sequencing of the above-captioned matter with the 18 related comprehensive adjudication. (Id. [Apr. 7, 2022 email from M. Nikkel].) 19 Petitioner sought an additional extension of the deadline for certification of the 20 administrative record, which Fox Canyon opposed. (Petitioner’s Complex Case Management 21 Statement (“CCMS”) (Apr. 22, 2022); Fox Canyon CCMS (Apr. 21, 2022).) Fox Canyon 22 requested that the preparation of the administrative record by Petitioners go forward, stating: 23 “[Fox Canyon] also advised Petitioner that [Fox Canyon] expects that Petitioner will proceed 24 without further delay to prepare the record.” (Fox Canyon CCMS, 2:14-16.) Fox Canyon gave no 25 indication to the Court either in its Complex Case Management Statement or at the May 6, 2022 26 Complex Case Management Conference that it believed that Petitioners could not meet the 27 deadline it sought, June 13, 2022. (Hamilton Decl. ¶ 3.) On May 6, 2022, the Court ordered 28 Petitioner to prepare the administrative record by June 13, 2022, the date requested by Fox 1815643v4 3 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 Canyon. (Complex Case Management Order (May 6, 2022), at p. 8.) The Court further ordered 2 that Fox Canyon would have until June 22, 2022 to certify the administrative record. (Ibid.) 3 On May 6, 2022, the same day as the Complex Case Management Conference and 4 consistent with its election to prepare the administrative record, Petitioner sent a request to Fox 5 Canyon for all documents constituting the administrative record pursuant to the California Public 6 Records Act (the “PRA Request”). (Hamilton Decl. Ex. B.) On May 10, 2022, Petitioner sent an 7 email to counsel for Fox Canyon stating that Petitioner would assemble the administrative record 8 pursuant to Petitioner’s election under Public Resources Code section 21167.6. (Hamilton Decl. 9 Ex. C [May 10, 2022 email from B. Hamilton].) Counsel for Petitioner further advised counsel for 10 Fox Canyon that Fox Canyon should not undertake any additional work or incur additional 11 expense to collect and review documents and prepare the administrative record other than its 12 obligations to comply with the Court’s order, the PRA Request, and Public Resources Code DOWNEY BRAND LLP 13 section 21167.6. (Ibid.) Counsel for Fox Canyon responded that it was entitled to cost for “staff 14 and related time to assemble the documents” pursuant to St. Vincent’s School for Boys, Catholic 15 Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989. (Hamilton Decl. Ex. C [May 10 16 email from T. Taylor].) Counsel for Petitioner distinguished this case and advised Fox Canyon 17 that it should not incur costs to assemble a record. (Id. [May 10, 2022 email from B. Hamilton]) 18 On May 31, 2022, Petitioner dismissed the Petition without prejudice. On June 23, 2022, 19 Fox Canyon filed a Memorandum of Costs against Petitioner. Fox Canyon requested a total of 20 $28,657.18 for “other” costs. (MOC at p. 1.) Petitioner timely filed this motion to tax costs. 21 III. LEGAL ARGUMENT 22 A. Fox Canyon Is Not Entitled to Costs to Prepare the Record of Decision Because Petitioner Elected to Prepare the Record of Decision. 23 The only statutory basis that Fox Canyon cites for fees is Public Resources Code section 24 21167.6. Public Resources Code section 21167.6, subdivision (b)(1) provides that where the 25 public agency prepares the record of decision, “[t]he parties shall pay any reasonable costs or fees 26 imposed for the preparation of the record of proceedings in conformance with any law or rules of 27 court.” Public Resources Code section 21167.6, subdivision (b)(2), however, provides that the 28 1815643v4 4 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 Petitioner may alternatively elect to prepare the record of proceedings. There is no statutory 2 provision requiring a petitioner to pay fees and costs to the public agency where the petitioner 3 elects to prepare the record of decision itself. 4 In correspondence with Petitioner’s counsel following Petitioner’s PRA Request, Fox 5 Canyon asserted that it was entitled to its reasonable fees and costs despite Petitioner’s election to 6 prepare the record. (Hamilton Decl. Exhs. A & C.) In support of its position, Fox Canyon cited to 7 St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 8 Cal.App.4th 989 (“St. Vincent’s School for Boys”) and Landwatch San Luis Obispo County v. 9 Cambria Community Services District (2018) 25 Cal.App.5th 638 (Landwatch). (Hamilton Decl. 10 Ex. B & C.) In St. Vincent’s School for Boys, the court determined that the respondent agency was 11 allowed to seek record preparation costs under Public Resources Code section 21167.6, 12 subdivision (b)(1), despite the petitioner’s election to prepare the record only after making a DOWNEY BRAND LLP 13 finding that the petitioner had abandoned its statutory duty to control costs imposed on the 14 respondent agency and made overly broad, non-essential discovery demands that caused the 15 respondent agency to incur significant unreasonable costs. (St. Vincent’s School for Boys, supra, 16 161 Cal.App.4th at p. 1019.) The respondent agency was entitled to fees despite an election by the 17 petitioner to prepare the record only after the respondent was required to prepare the record itself 18 as a result of delays by the petitioner. In Landwatch, the respondent agency only prepared the 19 record six weeks before the hearing date on the writ petition, and after sending a letter to the 20 petitioner informing the petitioner that it had five days to prepare the record itself before the 21 agency would do so. (Id. at 643.) 22 Here, no hearing date had been set, and until the May 6, 2022 Complex Case Management 23 Conference, there was a genuine dispute between the parties regarding the sequencing of the writ 24 petition with respect to the conclusion of the related comprehensive groundwater adjudication. 25 This is not a case of Petitioner ignoring its obligation to prepare the record as in Landwatch. 26 (Hamilton Decl. ¶ 2, Ex. A.) Nor are there any facts to support a claim here that Fox Canyon was 27 required to prepare the record itself such that it is entitled to recover fees as in St. Vincent’s School 28 for Boys. There was no unwarranted delay, and Petitioner did not fail to take any steps to collect 1815643v4 5 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 the documents for preparation of the record of decision. Petitioner submitted the PRA Request 2 immediately after the Court ordered that no stay would be granted, and there was no reason to 3 expect that the Fox Canyon could not timely provide the requested documents or that Petitioner 4 would be unable to timely prepare the record. (Hamilton Decl. Ex. B.) Fox Canyon made no 5 mention at the hearing that the deadline was too soon or that it had any inability to timely produce 6 the documents or any prejudice caused by the timing of the deadlines. (Hamilton Decl. ¶ 3.) Even 7 Fox Canyon acknowledged that Petitioner would prepare the record, stating: “[Fox Canyon] also 8 advised Petitioner that [Fox Canyon] expects that Petitioner will proceed without further delay to 9 prepare the record.” (Fox Canyon CCMS, 2:14-16.) 10 Allowing Fox Canyon to nevertheless recover its costs in these circumstances “would 11 defeat the Legislature’s aim of providing for lower-cost record preparation alternatives.” 12 (Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th DOWNEY BRAND LLP 13 1043, 1059.) Because Petitioner elected to prepare the record of decision and took the necessary 14 steps to do so, Fox Canyon is not entitled to recover the costs it seeks. 15 B. Fox Canyon’s Cost Memorandum Is Insufficient to Establish that Its Claimed Costs Were Reasonable and Necessary. 16 As argued above, Fox Canyon is not entitled to any costs for preparing the record where 17 Petitioners elected to prepare the record and proceeded to do so. In the alternative, Fox Canyon’s 18 claimed costs should be stricken or taxed as unreasonable. Where the public agency prepares the 19 record of proceeding in a CEQA matter, the respondent party must only pay “reasonable costs or 20 fees imposed for the preparation of the record.” (Pub. Resources Code, § 21167.6, subd. (b)(1).) 21 “In preparing the record of proceedings, the party preparing the record shall strive to do so at 22 reasonable cost in light of the scope of the record.” (Id., § 21167.6, subd. (f).) The “cost- 23 containment policy embodied in section 21167.6” is a “solemn statutory obligation,” not a mere 24 suggestion. (St. Vincent’s School for Boys, supra, 161 Cal.App.4th at p. 1019.) Section 21167.6, 25 subdivision (b), is intended to “advance[] the legislative purpose of enabling the petitioner to 26 minimize the cost of record preparation.” (St. Vincent’s School for Boys, supra, 161 Cal.App.4th 27 at p. 1019.) The party preparing the record “is bound by the statutory mandate to minimize costs, 28 1815643v4 6 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 which the trial court enforces by taxing unreasonable costs.” (Ibid.) 2 Here, Petitioner sought to challenge the decision by Fox Canyon that the adoption of a 3 local ordinance regulating groundwater was exempt from CEQA. (Petition ¶ 27.) This was a case 4 about Fox Canyon’s decision to do nothing. This was not, for example, a case about a wide- 5 ranging environmental impact report for a complex project. The record of decision thus should 6 have been quite simple to prepare. But Fox Canyon seeks costs of $28,657.18 for 124.20 hours of 7 time, including review by Fox Canyon’s groundwater manager, board clerk, paralegal, legal 8 assistant, and IT department. In addition, Fox Canyon seeks to recover the cost of the time spent 9 by two additional paralegals at Fox Canyon’s law firm. Fox Canyon provides no context to 10 explain why seven different individuals, including three separate paralegals, were required to 11 spend 124.20 hours to prepare the record. 12 Courts closely scrutinize any attorney or paralegal fees claimed as record preparation costs DOWNEY BRAND LLP 13 to ensure that such time does not “‘[go] beyond that [time] merely related to preparation [of the 14 record],’ such as preparing the [party’s] own case.” Attorney and paralegal time spent related to 15 the review and analysis of the documents produced are the type of costs the court rejected in 16 Coalition as it is far more than mere “labor” necessary to physically assemble a record. (Coalition 17 for Adequate Review v. City and County of San Francisco, supra, 229 Cal.App.4th 1043, 1059.) 18 The reasonableness of Fox Canyon’s costs is further colored by Fox Canyon’s insistence 19 on incurring significant costs despite Petitioner’s election to prepare the record of decision, 20 Petitioner’s diligence in preparing the record, and Petitioner’s affirmative requests to Fox Canyon 21 that Fox Canyon should not prepare the record. Allowing Fox Canyon to collect such 22 unreasonable costs would contradict the legislative purpose of allowing the petitioner to control 23 costs in a CEQA action by electing to prepare the record of decision. (See St. Vincent’s School for 24 Boys, supra, 161 Cal.App.4th at p. 1019.) Instead, granting costs would not only reward Fox 25 Canyon for ignoring Petitioner’s election, but for undertaking absurd costs that have no 26 relationship to the record being prepared. Permitting such tactics will only serve to squelch 27 legitimate citizen participation in CEQA decisions by allowing agencies to financially punish 28 those citizens for daring to scrutinize the agency. 1815643v4 7 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 Therefore, the court should strike or tax all of Fox Canyon’s claimed costs as 2 unreasonable. 3 IV. CONCLUSION 4 For these reasons, the Court should strike Fox Canyon’s claimed costs. 5 6 DATED: July 12, 2022 DOWNEY BRAND LLP 7 8 By: 9 BRIAN E. HAMILTON Attorneys for Petitioner and Plaintiff LAS POSAS 10 BASIN WATER RIGHTS COALITION 11 12 DOWNEY BRAND LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1815643v4 8 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 PROOF OF SERVICE 2 Las Posas Basin Water Rights Coalition v. Fox Canyon Groundwater Management Agency Case No. 21CV03714 3 STATE OF CALIFORNIA, COUNTY OF SACRAMENTO 4 At the time of service, I was over 18 years of age and not a party to this action. I am 5 employed in the County of Sacramento, State of California. My business address is 621 Capitol Mall, 18th Floor, Sacramento, CA 95814. 6 On July 12, 2022, I served true copies of the following document(s) described as 7 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS on the interested parties in this action as follows: 8 SEE ATTACHED SERVICE LIST 9 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the 10 persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of 11 Downey Brand LLP for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of 12 business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I DOWNEY BRAND LLP am a resident or employed in the county where the mailing occurred. The envelope was placed in 13 the mail at Sacramento, California. 14 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) to be sent from e-mail address hmills@downeybrand.com to the persons at the e-mail 15 addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct. 18 Executed on July 12, 2022, at Sacramento, California. 19 20 Holly Mills 21 22 23 24 25 26 27 28 1815643v4 9 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS 1 SERVICE LIST Las Posas Basin Water Rights Coalition v. Fox Canyon Groundwater Management Agency 2 Case No. 21CV03714 3 Elizabeth P. Ewens Timothy Taylor 4 Janeele S.H. Krattiger Heraclio Pimentel 5 STOEL RIVES LLP 500 Capitol Mall, Suite 1600 6 Sacramento, CA 95814 elizabeth.ewens@stoel.com 7 tim.taylor@stoel.com janelle.krattiger@stoel.com 8 heraclio.pimentel@stoel.com 9 Attorneys for Respondent/Defendant Fox Canyon Groundwater Management Agency 10 11 Peter A. Goldenring Mark R. Pachowicz 12 PACHOWICZ GOLDENRING, PLC DOWNEY BRAND LLP 6050 Seahawk St. 13 Ventura, CA 93003-6622 14 805-642-6702 peter@gopro-law.com 15 Attorneys for Petitioner and Plaintiff 16 Las Posas Basin Water Rights Coalition 17 18 19 20 21 22 23 24 25 26 27 28 1815643v4 10 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE OR TAX COSTS