Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
1 PACHOWICZ|GOLDENRING Darrel E. Parker, Executive Officer
A PROFESSIONAL LAW CORPORATION 9/14/2022 11:32 AM
2 PETER A. GOLDENRING (Bar No. 79387) By: Narzralli Baksh, Deputy
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. REPLY IN SUPPORT OF PETITIONER’S
20 MOTION TO STRIKE OR TAX COSTS
FOX CANYON GROUNDWATER
21 MANAGEMENT AGENCY, a public entity, Date: September 21, 2022
Time: 10:00 a.m.
22 Respondent and Defendant. Dept: 3
Judge: Honorable Thomas P. Anderle
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DOES 1-100, Assigned for all purposes to the Honorable
24 Thomas P. Anderle, Dept. 3
Real Parties in Interest.
25 Action Filed: September 17, 2021
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1815774v1 1
REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS
1 I. INTRODUCTION
2 Respondent Fox Canyon Groundwater Management Agency (“Fox Canyon”) paints a
3 misleading picture in its Opposition of the history of the record preparation in this case to support
4 its claim for costs and fees, despite Petitioner Las Posas Basin Water Rights Coalition’s
5 (“Petitioner”) election to prepare the record under Public Resources Code section 21167.6,
6 subdivision (b)(2).1 Fox Canyon mischaracterizes its efforts to comply with a request for
7 documents under the California Public Records Act (“PRA”)—for which fees are not
8 recoverable—as costs associated with preparing the administrative record in a CEQA action
9 pursuant to Public Resources Code section 21167.6, despite the fact that Petitioner elected to
10 prepare the administrative record and made clear to Fox Canyon that it would do so on numerous
11 occasions. Petitioner did not delay in preparing the record, nor was Fox Canyon in danger of
12 being prejudiced by the timing of Petitioner’s record preparation efforts given the staggered
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13 deadlines for Fox Canyon to certify the record and the lack of an actual hearing date. Finally, Fox
14 Canyon’s claimed costs and fees are not reasonable.
15 II. ARGUMENT
16 A. Fees for PRA Compliance Are Not Recoverable Costs Under Section 21167.6.
17 Because Petitioner elected to prepare the record in this action pursuant to Section 21167.6,
18 Fox Canyon is not entitled to the costs and fees of preparing the record pursuant to Section
19 21167.6. As addressed in Petitioner’s Motion to Strike and Tax Costs, the narrow circumstances
20 where a court has allowed an agency to collect costs under Section 21167.6 despite a petitioner’s
21 election to prepare the record do not apply here. Fox Canyon was not asked to prepare the record,
22 and the circumstances did not require Fox Canyon to do so. Fox Canyon was only required to
23 comply with Petitioner’s PRA request. However, Fox Canyon did not seek costs pursuant to the
24 PRA, and the PRA does not entitle Fox Canyon to the costs it seeks here. (See Gov. Code, §
25 6253, subdivision (b) [only providing for the costs of duplicating documents].)
26 Enacted in 1968, the PRA provides that the right of access to public records is “a
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28 All further statutory references are to the Public Resources Code, unless otherwise stated.
1815774v1 2
REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS
1 fundamental and necessary right of every person in this state.” (Gov. Code, § 6250.) The people
2 of the State of California ratified this into a constitutional principle, amending the California
3 Constitution in 2004 to secure a “right of access to information concerning the conduct of the
4 people’s business.” (Cal. Const., art. I, § 3, subd. (b)(1), subd. (b)(1), added by Prop. 59, Gen.
5 Elec. (Nov. 2, 2004); see also National Lawyers Guild, San Francisco Bay Chapter v. City of
6 Hayward (2020) 9 Cal.5th 488, 492 (“Hayward”).) The PRA contemplates that costs will be
7 associated with such public access and “allocates certain costs to the requester, while others must
8 be borne by the agency responding to the requests.” (Hayward, supra, at p. 493.) Courts have
9 rejected the imposition of “costs that unduly burden [a requester’s] right of access to government
10 information.” (Id. at p. 508.)
11 Fox Canyon’s attempt to obtain reimbursement of costs for PRA compliance through
12 Public Resources Code section 21167.6 is an end-run around the PRA’s clear provisions
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13 governing cost allocation. The Court should reject Fox Canyon’s attempt to re-write the PRA and
14 impose a significant financial burden on the public’s right to access public documents.
15 B. Fox Canyon’s “Delay” Argument Fails.
16 Fox Canyon argues that it is entitled to record preparation costs because it was necessary
17 for Fox Canyon to prepare the record due to Petitioner’s unreasonable delay in preparing the
18 record. (Opposition, 8:24-10:23.) This argument mischaracterizes the history of the record
19 preparation that occurred in this case. The parties mutually agreed to a number of extensions of
20 time to prepare the administrative record in this action. (See Third Stipulation and Proposed
21 Order re Administrative Record (Apr. 12, 2022), at 2-3.) By spring 2022, however, Fox Canyon
22 was no longer willing to stipulate to further extensions, while Petitioner reasonably believed that it
23 would be prudent to continue the current action until after the Court resolved the Phase 2 trial in
24 the related Comprehensive Adjudication. (Petitioner’s Complex Case Management Statement
25 (“CCMS”) (Apr. 22, 2022); Fox Canyon CCMS (Apr. 21, 2022).) Fox Canyon requested that the
26 preparation of the administrative record by Petitioner go forward, stating: “[Fox Canyon] also
27 advised Petitioner that [Fox Canyon] expects that Petitioner will proceed without further delay to
28 prepare the record.” (Fox Canyon CCMS, 2:14-16.) Fox Canyon gave no indication to the Court
1815774v1 3
REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS
1 either in its Complex Case Management Statement or at the May 6, 2022 Complex Case
2 Management Conference that it believed that Petitioner could not meet the deadline that Fox
3 Canyon sought, June 13, 2022. (Hamilton Decl. ¶ 3.) At Fox Canyon’s urging, and with no
4 indication from Fox Canyon that the deadline was too soon, the Court imposed a deadline of June
5 13, 2022 for Petitioner to submit the record to Fox Canyon. (Complex Case Management Order
6 (May 6, 2022), at p. 8.) Fox Canyon then had until June 22, 2022 to certify the administrative
7 record. (Ibid.)
8 Fox Canyon attempts to portray Petitioner’s request to stay the preparation of the record as
9 unreasonable delay by Petitioner. (Opposition, 9:8-16; see also id., 13:16-19.) But it was Fox
10 Canyon--not Petitioner--that proposed the final 60-day extension. (Hamilton Ex. A (Email from
11 E. Ewens, Apr. 1, 2022 at 4:59 PM).) The subsequent disagreement about extending the deadline
12 for preparing the administrative record was a genuine, substantive dispute regarding the
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13 sequencing of the above-captioned matter with respect to the related Comprehensive Adjudication.
14 The assertion that Petitioner’s “delay” was in any way unreasonable—much less solely
15 attributable to Petitioner—is simply false.
16 Fox Canyon cites Landwatch San Luis Obispo County v. Cambria Community Services
17 District (2018) 25 Cal.App.5th 638 (“Landwatch”), in support of its claim that it is entitled to fees
18 under Section 21167.6 despite Petitioner’s election. The circumstances here are readily
19 distinguished from the delays in Landwatch. In Landwatch, the respondent agency only prepared
20 the record six weeks before the hearing date on the writ petition, and after sending a letter to the
21 petitioner informing the petitioner that it had five days to prepare the record itself before the
22 agency would do so. (Id. at p. 643.) Here, no hearing date had been set. The only pending
23 deadline was for Petitioner to submit the record to Fox Canyon on June 13, 2022. Fox Canyon
24 does not mention in its moving papers that it would have had until June 22, 2022—more than a
25 week after Petitioner’s June 13 deadline—to review and certify the record. Fox Canyon never
26 states what prejudice, if any, it would have suffered if Petitioner had missed the deadline or did
27 not prepare an adequate record by that deadline. That is because Fox Canyon—unlike the agency
28 in Landwatch—would not suffer any prejudice since it would still have had ample time to review,
1815774v1 4
REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS
1 certify, and (if necessary) augment the record. Accordingly, the delay argument has no merit and
2 fees are not justified on that basis.
3 The fact that Petitioner dismissed the petition on May 31, 2022 is not relevant to whether
4 Fox Canyon is entitled to fees and has no bearing on Fox Canyon’s efforts to prepare the record.
5 A petitioner has an absolute right to dismiss an action “any time before the actual commencement
6 of trial.” (Code Civ. Proc., § 581, subd. (b)(1).) Fox Canyon cites no authority for awarding fees
7 or costs on this basis, and doing so would create disincentives to the voluntary dismissal of actions
8 due to the fear of incurring fees and costs.
9 C. The Scope of Petitioner’s PRA Request Was Proper.
10 Fox Canyon asserts that “Petitioner could have limited the costs incurred by requesting a
11 more limited record . . . .” (Opposition, 10:5-6.) Fox Canyon cites St. Vincent’s School for Boys
12 for the proposition that fees are necessary to contain costs. (Opposition, 8:24-28, citing St.
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13 Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th
14 989, 1019 (“St. Vincent’s”).) In St. Vincent’s, the court awarded costs to the agency only after
15 making a finding that the petitioner had abandoned its statutory duty to control costs imposed on
16 the respondent agency and made overly broad, non-essential discovery demands that caused the
17 respondent agency to incur significant unreasonable costs.
18 Here, Fox Canyon points to no particular item in Petitioner’s PRA request that went
19 beyond the scope of what should properly be included in a record for a CEQA action such as the
20 one here. Nor does Fox Canyon even allege as much. Fox Canyon does not mention that
21 Petitioner’s PRA request mirrored the statutory requirements for a record in a CEQA action under
22 Section 21167.6. (Hamilton Decl., Ex. B.) Tellingly, Fox Canyon points to no evidence that it
23 ever sought to meet and confer with Petitioner to narrow the record. In fact, counsel for Fox
24 Canyon never raised any issues about the scope of the record in its letter to Petitioner confirming
25 that it was complying with Petitioner’s PRA request. (Declaration of E. Ewens in Support of
26 Opposition, Ex. A.) Yet now, Fox Canyon attempts to shift the burden to Petitioner to meet and
27 confer to narrow the scope of the record, without any example of how the request was too broad.
28 (Opposition, 10:5-15.) The Court should reject this argument.
1815774v1 5
REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS
1 D. Fox Canyon’s Efforts to Comply With Petitioner’s PRA Request Were Not
Reasonable.
2
Fox Canyon asserts that it “needed the assistance of outside counsel and paralegal support
3
to conduct relevance and privilege review of more than 6,000 potentially responsive emails and
4
internal communications to meet the Court’s expedited deadline.” (Opposition, 9:23-26, emphasis
5
added.) Fox Canyon goes on to outline some of the specific efforts it undertook to comply with
6
Petitioner’s PRA request. (Opposition, 7:1-10.) But Fox Canyon has not explained the distinction
7
between these efforts and normal PRA document production requirements or why the expedited
8
effort justifies fees under Section 21167.6. In making this argument, Fox Canyon ignores its own
9
efforts to secure the June 13, 2022 deadline for Petitioner to prepare the record (Hamilton Decl. ¶
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3) and the Court’s clear directive that “the parties are ordered to expedite the record.” (Complex
11
Case Management Order (May 6, 2022), at p. 8.) Fox Canyon’s argument is essentially that,
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because it had to comply with a PRA request and the Court’s order to expedite the preparation of
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the record, it is entitled to fees under Section 21167.6. Fox Canyon provides no authority in
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support of this novel argument.
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To the extent Fox Canyon had privilege concerns related to the production of voluminous
16
electronic documents, it never sought a protective order from Petitioner—a standard practice in
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situations where such concerns arise—to address its alleged concerns. Instead, Fox Canyon’s
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request appears to be nothing more than an effort to shoehorn attorney and paralegal fees that
19
would be unrecoverable under the PRA into a claim for fees under Section 21167.6. The Court
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should reject Fox Canyon’s effort in this regard. A contrary result would render meaningless the
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statutory right of a petitioner to elect to prepare the record any time a respondent agency
22
performed typical discovery or PRA document-collection tasks.
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E. Fox Canyon Is Not Entitled to Costs for Opposing the Instant Motion.
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Fox Canyon requests, without any argument or citation to authority, its costs for opposing
25
the instant motion. (Ewens Decl., ¶ 15.) The Court should reject this request as unsupported by
26
legal authority and without merit.
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1815774v1 6
REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS
1 III. CONCLUSION
2 The Court should reject Fox Canyon’s attempt to use Section 21167.6 to collect
3 unrecoverable costs for compliance with a PRA request and the Court’s May 6, 2022 order. Fox
4 Canyon is not entitled to fees because Petitioner elected to prepare the record itself, and the
5 circumstances here do not justify a fee award to Fox Canyon. Moreover, the costs incurred by Fox
6 Canyon, including multiple layers of legal review, are not reasonable. For these reasons and the
7 reasons set forth in Petitioner’s Motion, the Court should strike Fox Canyon’s claimed costs.
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9 DATED: September 14, 2022 DOWNEY BRAND LLP
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By:
12 BRIAN E. HAMILTON
DOWNEY BRAND LLP
Attorneys for Petitioner and Plaintiff LAS POSAS
13 BASIN WATER RIGHTS COALITION
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1815774v1 7
REPLY IN SUPPORT OF PETITIONER’S 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.
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On September 14, 2022, I served true copies of the following document(s) described as REPLY
7 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 FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx
and addressed to the persons at the addresses listed in the Service List. I placed the envelope or
10 package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx
or delivered such document(s) to a courier or driver authorized by FedEx to receive documents.
11
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
12 document(s) to be sent from e-mail address hmills@downeybrand.com to the persons at the e-mail
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addresses listed in the Service List. I did not receive, within a reasonable time after the
13 transmission, any electronic message or other indication that the transmission was unsuccessful.
14 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on September 14, 2022, at Sacramento, California.
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18 Holly Mills
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1815774v1 8
REPLY IN SUPPORT OF PETITIONER’S 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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1815774v1 9
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Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara 1 PACHOWICZ|GOLDENRING Darrel E. Parker, Executive Officer A PROFESSIONAL LAW CORPORATION 9/14/2022 11:32 AM 2 PETER A. GOLDENRING (Bar No. 79387) By: Narzralli Baksh, Deputy 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. REPLY IN SUPPORT OF PETITIONER’S 20 MOTION TO STRIKE OR TAX COSTS FOX CANYON GROUNDWATER 21 MANAGEMENT AGENCY, a public entity, Date: September 21, 2022 Time: 10:00 a.m. 22 Respondent and Defendant. Dept: 3 Judge: Honorable Thomas P. Anderle 23 DOES 1-100, Assigned for all purposes to the Honorable 24 Thomas P. Anderle, Dept. 3 Real Parties in Interest. 25 Action Filed: September 17, 2021 26 27 28 1815774v1 1 REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS 1 I. INTRODUCTION 2 Respondent Fox Canyon Groundwater Management Agency (“Fox Canyon”) paints a 3 misleading picture in its Opposition of the history of the record preparation in this case to support 4 its claim for costs and fees, despite Petitioner Las Posas Basin Water Rights Coalition’s 5 (“Petitioner”) election to prepare the record under Public Resources Code section 21167.6, 6 subdivision (b)(2).1 Fox Canyon mischaracterizes its efforts to comply with a request for 7 documents under the California Public Records Act (“PRA”)—for which fees are not 8 recoverable—as costs associated with preparing the administrative record in a CEQA action 9 pursuant to Public Resources Code section 21167.6, despite the fact that Petitioner elected to 10 prepare the administrative record and made clear to Fox Canyon that it would do so on numerous 11 occasions. Petitioner did not delay in preparing the record, nor was Fox Canyon in danger of 12 being prejudiced by the timing of Petitioner’s record preparation efforts given the staggered DOWNEY BRAND LLP 13 deadlines for Fox Canyon to certify the record and the lack of an actual hearing date. Finally, Fox 14 Canyon’s claimed costs and fees are not reasonable. 15 II. ARGUMENT 16 A. Fees for PRA Compliance Are Not Recoverable Costs Under Section 21167.6. 17 Because Petitioner elected to prepare the record in this action pursuant to Section 21167.6, 18 Fox Canyon is not entitled to the costs and fees of preparing the record pursuant to Section 19 21167.6. As addressed in Petitioner’s Motion to Strike and Tax Costs, the narrow circumstances 20 where a court has allowed an agency to collect costs under Section 21167.6 despite a petitioner’s 21 election to prepare the record do not apply here. Fox Canyon was not asked to prepare the record, 22 and the circumstances did not require Fox Canyon to do so. Fox Canyon was only required to 23 comply with Petitioner’s PRA request. However, Fox Canyon did not seek costs pursuant to the 24 PRA, and the PRA does not entitle Fox Canyon to the costs it seeks here. (See Gov. Code, § 25 6253, subdivision (b) [only providing for the costs of duplicating documents].) 26 Enacted in 1968, the PRA provides that the right of access to public records is “a 27 1 28 All further statutory references are to the Public Resources Code, unless otherwise stated. 1815774v1 2 REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS 1 fundamental and necessary right of every person in this state.” (Gov. Code, § 6250.) The people 2 of the State of California ratified this into a constitutional principle, amending the California 3 Constitution in 2004 to secure a “right of access to information concerning the conduct of the 4 people’s business.” (Cal. Const., art. I, § 3, subd. (b)(1), subd. (b)(1), added by Prop. 59, Gen. 5 Elec. (Nov. 2, 2004); see also National Lawyers Guild, San Francisco Bay Chapter v. City of 6 Hayward (2020) 9 Cal.5th 488, 492 (“Hayward”).) The PRA contemplates that costs will be 7 associated with such public access and “allocates certain costs to the requester, while others must 8 be borne by the agency responding to the requests.” (Hayward, supra, at p. 493.) Courts have 9 rejected the imposition of “costs that unduly burden [a requester’s] right of access to government 10 information.” (Id. at p. 508.) 11 Fox Canyon’s attempt to obtain reimbursement of costs for PRA compliance through 12 Public Resources Code section 21167.6 is an end-run around the PRA’s clear provisions DOWNEY BRAND LLP 13 governing cost allocation. The Court should reject Fox Canyon’s attempt to re-write the PRA and 14 impose a significant financial burden on the public’s right to access public documents. 15 B. Fox Canyon’s “Delay” Argument Fails. 16 Fox Canyon argues that it is entitled to record preparation costs because it was necessary 17 for Fox Canyon to prepare the record due to Petitioner’s unreasonable delay in preparing the 18 record. (Opposition, 8:24-10:23.) This argument mischaracterizes the history of the record 19 preparation that occurred in this case. The parties mutually agreed to a number of extensions of 20 time to prepare the administrative record in this action. (See Third Stipulation and Proposed 21 Order re Administrative Record (Apr. 12, 2022), at 2-3.) By spring 2022, however, Fox Canyon 22 was no longer willing to stipulate to further extensions, while Petitioner reasonably believed that it 23 would be prudent to continue the current action until after the Court resolved the Phase 2 trial in 24 the related Comprehensive Adjudication. (Petitioner’s Complex Case Management Statement 25 (“CCMS”) (Apr. 22, 2022); Fox Canyon CCMS (Apr. 21, 2022).) Fox Canyon requested that the 26 preparation of the administrative record by Petitioner go forward, stating: “[Fox Canyon] also 27 advised Petitioner that [Fox Canyon] expects that Petitioner will proceed without further delay to 28 prepare the record.” (Fox Canyon CCMS, 2:14-16.) Fox Canyon gave no indication to the Court 1815774v1 3 REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS 1 either in its Complex Case Management Statement or at the May 6, 2022 Complex Case 2 Management Conference that it believed that Petitioner could not meet the deadline that Fox 3 Canyon sought, June 13, 2022. (Hamilton Decl. ¶ 3.) At Fox Canyon’s urging, and with no 4 indication from Fox Canyon that the deadline was too soon, the Court imposed a deadline of June 5 13, 2022 for Petitioner to submit the record to Fox Canyon. (Complex Case Management Order 6 (May 6, 2022), at p. 8.) Fox Canyon then had until June 22, 2022 to certify the administrative 7 record. (Ibid.) 8 Fox Canyon attempts to portray Petitioner’s request to stay the preparation of the record as 9 unreasonable delay by Petitioner. (Opposition, 9:8-16; see also id., 13:16-19.) But it was Fox 10 Canyon--not Petitioner--that proposed the final 60-day extension. (Hamilton Ex. A (Email from 11 E. Ewens, Apr. 1, 2022 at 4:59 PM).) The subsequent disagreement about extending the deadline 12 for preparing the administrative record was a genuine, substantive dispute regarding the DOWNEY BRAND LLP 13 sequencing of the above-captioned matter with respect to the related Comprehensive Adjudication. 14 The assertion that Petitioner’s “delay” was in any way unreasonable—much less solely 15 attributable to Petitioner—is simply false. 16 Fox Canyon cites Landwatch San Luis Obispo County v. Cambria Community Services 17 District (2018) 25 Cal.App.5th 638 (“Landwatch”), in support of its claim that it is entitled to fees 18 under Section 21167.6 despite Petitioner’s election. The circumstances here are readily 19 distinguished from the delays in Landwatch. In Landwatch, the respondent agency only prepared 20 the record six weeks before the hearing date on the writ petition, and after sending a letter to the 21 petitioner informing the petitioner that it had five days to prepare the record itself before the 22 agency would do so. (Id. at p. 643.) Here, no hearing date had been set. The only pending 23 deadline was for Petitioner to submit the record to Fox Canyon on June 13, 2022. Fox Canyon 24 does not mention in its moving papers that it would have had until June 22, 2022—more than a 25 week after Petitioner’s June 13 deadline—to review and certify the record. Fox Canyon never 26 states what prejudice, if any, it would have suffered if Petitioner had missed the deadline or did 27 not prepare an adequate record by that deadline. That is because Fox Canyon—unlike the agency 28 in Landwatch—would not suffer any prejudice since it would still have had ample time to review, 1815774v1 4 REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS 1 certify, and (if necessary) augment the record. Accordingly, the delay argument has no merit and 2 fees are not justified on that basis. 3 The fact that Petitioner dismissed the petition on May 31, 2022 is not relevant to whether 4 Fox Canyon is entitled to fees and has no bearing on Fox Canyon’s efforts to prepare the record. 5 A petitioner has an absolute right to dismiss an action “any time before the actual commencement 6 of trial.” (Code Civ. Proc., § 581, subd. (b)(1).) Fox Canyon cites no authority for awarding fees 7 or costs on this basis, and doing so would create disincentives to the voluntary dismissal of actions 8 due to the fear of incurring fees and costs. 9 C. The Scope of Petitioner’s PRA Request Was Proper. 10 Fox Canyon asserts that “Petitioner could have limited the costs incurred by requesting a 11 more limited record . . . .” (Opposition, 10:5-6.) Fox Canyon cites St. Vincent’s School for Boys 12 for the proposition that fees are necessary to contain costs. (Opposition, 8:24-28, citing St. DOWNEY BRAND LLP 13 Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 14 989, 1019 (“St. Vincent’s”).) In St. Vincent’s, the court awarded costs to the agency only after 15 making a finding that the petitioner had abandoned its statutory duty to control costs imposed on 16 the respondent agency and made overly broad, non-essential discovery demands that caused the 17 respondent agency to incur significant unreasonable costs. 18 Here, Fox Canyon points to no particular item in Petitioner’s PRA request that went 19 beyond the scope of what should properly be included in a record for a CEQA action such as the 20 one here. Nor does Fox Canyon even allege as much. Fox Canyon does not mention that 21 Petitioner’s PRA request mirrored the statutory requirements for a record in a CEQA action under 22 Section 21167.6. (Hamilton Decl., Ex. B.) Tellingly, Fox Canyon points to no evidence that it 23 ever sought to meet and confer with Petitioner to narrow the record. In fact, counsel for Fox 24 Canyon never raised any issues about the scope of the record in its letter to Petitioner confirming 25 that it was complying with Petitioner’s PRA request. (Declaration of E. Ewens in Support of 26 Opposition, Ex. A.) Yet now, Fox Canyon attempts to shift the burden to Petitioner to meet and 27 confer to narrow the scope of the record, without any example of how the request was too broad. 28 (Opposition, 10:5-15.) The Court should reject this argument. 1815774v1 5 REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS 1 D. Fox Canyon’s Efforts to Comply With Petitioner’s PRA Request Were Not Reasonable. 2 Fox Canyon asserts that it “needed the assistance of outside counsel and paralegal support 3 to conduct relevance and privilege review of more than 6,000 potentially responsive emails and 4 internal communications to meet the Court’s expedited deadline.” (Opposition, 9:23-26, emphasis 5 added.) Fox Canyon goes on to outline some of the specific efforts it undertook to comply with 6 Petitioner’s PRA request. (Opposition, 7:1-10.) But Fox Canyon has not explained the distinction 7 between these efforts and normal PRA document production requirements or why the expedited 8 effort justifies fees under Section 21167.6. In making this argument, Fox Canyon ignores its own 9 efforts to secure the June 13, 2022 deadline for Petitioner to prepare the record (Hamilton Decl. ¶ 10 3) and the Court’s clear directive that “the parties are ordered to expedite the record.” (Complex 11 Case Management Order (May 6, 2022), at p. 8.) Fox Canyon’s argument is essentially that, 12 DOWNEY BRAND LLP because it had to comply with a PRA request and the Court’s order to expedite the preparation of 13 the record, it is entitled to fees under Section 21167.6. Fox Canyon provides no authority in 14 support of this novel argument. 15 To the extent Fox Canyon had privilege concerns related to the production of voluminous 16 electronic documents, it never sought a protective order from Petitioner—a standard practice in 17 situations where such concerns arise—to address its alleged concerns. Instead, Fox Canyon’s 18 request appears to be nothing more than an effort to shoehorn attorney and paralegal fees that 19 would be unrecoverable under the PRA into a claim for fees under Section 21167.6. The Court 20 should reject Fox Canyon’s effort in this regard. A contrary result would render meaningless the 21 statutory right of a petitioner to elect to prepare the record any time a respondent agency 22 performed typical discovery or PRA document-collection tasks. 23 E. Fox Canyon Is Not Entitled to Costs for Opposing the Instant Motion. 24 Fox Canyon requests, without any argument or citation to authority, its costs for opposing 25 the instant motion. (Ewens Decl., ¶ 15.) The Court should reject this request as unsupported by 26 legal authority and without merit. 27 28 1815774v1 6 REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS 1 III. CONCLUSION 2 The Court should reject Fox Canyon’s attempt to use Section 21167.6 to collect 3 unrecoverable costs for compliance with a PRA request and the Court’s May 6, 2022 order. Fox 4 Canyon is not entitled to fees because Petitioner elected to prepare the record itself, and the 5 circumstances here do not justify a fee award to Fox Canyon. Moreover, the costs incurred by Fox 6 Canyon, including multiple layers of legal review, are not reasonable. For these reasons and the 7 reasons set forth in Petitioner’s Motion, the Court should strike Fox Canyon’s claimed costs. 8 9 DATED: September 14, 2022 DOWNEY BRAND LLP 10 11 By: 12 BRIAN E. HAMILTON DOWNEY BRAND LLP Attorneys for Petitioner and Plaintiff LAS POSAS 13 BASIN WATER RIGHTS COALITION 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1815774v1 7 REPLY IN SUPPORT OF PETITIONER’S 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 September 14, 2022, I served true copies of the following document(s) described as REPLY 7 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 FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the persons at the addresses listed in the Service List. I placed the envelope or 10 package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. 11 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 12 document(s) to be sent from e-mail address hmills@downeybrand.com to the persons at the e-mail DOWNEY BRAND LLP addresses listed in the Service List. I did not receive, within a reasonable time after the 13 transmission, any electronic message or other indication that the transmission was unsuccessful. 14 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 15 Executed on September 14, 2022, at Sacramento, California. 16 17 18 Holly Mills 19 20 21 22 23 24 25 26 27 28 1815774v1 8 REPLY IN SUPPORT OF PETITIONER’S 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 1815774v1 9 REPLY IN SUPPORT OF PETITIONER’S MOTION TO STRIKE OR TAX COSTS