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1 Molly E. Erickson, State Bar No. 253198
LAW OFFICE OF MOLLY ERICKSON
2 Box 2448
Monterey, California 93942
3 Telephone: (831) 373-1214
Email: Erickson@stamplaw.us
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Attorney for Petitioners,
5 Preserving the Peace and Taxpayers for MPUSD Accountability
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF MONTEREY
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PRESERVING THE PEACE, TAXPAYERS Case No. 21CV002755
9 FOR MPUSD ACCOUNTABILITY, Filed August 27, 2021
Notice of Entry of Judgment: July 24, 2023
10 Petitioners and Plaintiffs, Notice of Appeal: August 21, 2023
Deemed complex and assigned for all
11 v. purposes to the Hon. Thomas W. Wills
12 MONTEREY PENINSULA UNIFIED
SCHOOL DISTRICT, et al., Hearing on motion:
13 Date: January 26, 2024, 2023
Respondents and Defendants. Time: 8:30 a.m.
14 ______________________________/ Department 15
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MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY ON
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PETITIONERS’ MOTION TO STRIKE MEMORANDUM OF COSTS FILED BY RESPONDENT,
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OR, IN THE ALTERNATIVE, MOTION TO TAX COSTS
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 Summary of argument
2 The court should find that Respondents were not the prevailing party for purposes of
3 costs under Code of Civil Procedure section 1032. Once the court makes that determination,
4 the inquiry ends. The public interest Petitioners obtained relief through the judgment and writ,
5 and thus Petitioners are the prevailing party under section 1032(a)(4). Respondents are not the
6 prevailing party because they did not obtain any relief. The motion to strike should be granted.
7 Discussion.
8 I. Petitioners Incorporate by Reference Related Filings on Fees and Costs Which Support
this Reply and Establish that Respondents Are Not a "Prevailing Party" for Purposes of
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Costs and that the Petitioners Are the Prevailing Parties.
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Three motions are set to be heard on January 26, 2024: the instant motion, Petitioners'
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motion for attorney fees, and the District's motion to strike and/or tax petitioners' costs.
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Petitioners hereby incorporate by reference those discussions and arguments set forth in
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opposition to the the District's Motion to Strike and/or Tax Petitioners' Costs and the moving and
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reply papers on Petitioners' Motion for Attorney Fees that are relevant to this reply, including but
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not limited to the facts and evidence described and submitted in support of same, and
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arguments regarding why Petitioners are a prevailing party pursuant to Code of Civil Procedure
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section 1032, Code of Civil Procedure section 1021.5, and CEQA. Said arguments have been
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and/or will be included in Petitioners’ papers in support of its Motion to Strike and/or Tax Costs
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of Respondent, Petitioners’ moving papers and reply in support of Petitioners' Motion for
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Attorneys' Fees, and Petitioners’ opposition to MPUSD’s motion challenging Petitioners’
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amended cost bill. Those papers confirm that Petitioners are prevailing parties, and that the
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District is not, which supports this court’s denial of the District's requested costs.
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II. Petitioners Prevailed in this Case, and the Relief Provided Is Adequate to Establish
24 Prevailing Party Status for Petitioners.
25 As set forth in Petitioners’ filings on the motions on fees and costs, Petitioners were the
26 prevailing parties because the Judgment was issued in favor of Petitioners and the writ was
27 granted on two grounds. This is relief that is “other than monetary relief.” (Code Civ. Proc.,
28 § 1032(a)(4)). It is not disputed that monetary relief is not available in a CEQA case. MPUSD
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 complains that Petitioners obtained a “modicum of relief.” (Resps.’ Opp to Petitioners’ Motion to
2 Strike, filed Jan 12, 2024, 4:2.) “Modicum” is defined as “a small amount of something good
3 such as truth or honesty.” (https://dictionary.cambridge.org/us/dictionary/english/modicum)
4 Here the Judgment and writ resulted in two good material changes to the FEIR, including
5 amendments to the mitigation that is intended to mitigate what undisputedly will be significant
6 and unavoidable noise impacts. But for the litigation, that relief would not have been obtained,
7 and that relief will benefit all persons who are within noise ranger of the project.
8 Under the circumstances of this case, the court can and should find that Respondents
9 are not the prevailing parties. The Judgment found in favor of Petitioners on two grounds and
10 ordered the Respondents to take specific action. The statement of decision found EIR
11 Mitigation Measure 3.11-3 infirm (Judgment, Exh. A, pp. 58-61), as explained in the moving and
12 reply papers on Petitioners’ motion for attorney fees that will be heard on the same date as the
13 instant motion. MPUSD makes an incorrect claim that MM 3.11-3 was “found valid.” (Opp.
14 8:25-26.) MPUSD’s cites to SOD page 61 which says that “the EIR does not fall short in any
15 other respects regarding noise impacts” other than those identified at length in the discussion
16 on pages 58-61 as to the infirmities of the noise mitigation measure, MM 3.11-3.
17 MPUSD’s argument as to the inconsistency of the EIR’s parking conclusion is not well
18 taken because Petitioners raised arguments about the inconsistent parking discussion in the
19 EIR, and but for the litigation, the inconsistency found by the court would not have been
20 addressed. It is not necessary that a party have made the particular legal argument which
21 vindicated the public right affecting the public interest. “It is enough that but for the party's legal
22 action the right would not have been vindicated." (Protect Our Water v. County of Merced
23 (2005) 130 Cal.App.4th 488, 495.)
24 MPUSD argument about the level of success (Opp., 9:1-6) fails under the facts of this
25 case and applicable case law. In Friends of Spring Street (2019) 33 Cal.App.5th 1092, the trial
26 court had determined that the plaintiff was not the prevailing party under CCP section
27 1032(a)(4) primarily because it did not achieve a "practical result" and "only obtained relief on
28 one of its five causes of action." (Id. at p. 1104-1105.) The Court of Appeal reversed the trial
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 court, and held that a plaintiff's failure to succeed on only one of several causes of action has
2 been held insufficient to deny a party fees and costs. (Ibid.) A determination that a party was
3 successful in its action does not require a showing that the successful party put the entire
4 dispute to rest for all time. (Ibid., citing La Mirada Avenue Nbrhd Assn. of Hollywood v. City of
5 Los Angeles (2018) 22 Cal.App.5th 1149, 1159-1160.) Here, Petitioners obtained a practical
6 result, in particular the amended noise mitigation in the Amended FEIR.
7 MPUSD’s “statement of facts” (Opp., 5:17-7:11) is weakened by argument, opinion, and
8 inaccuracies too extensive to address here given page limits on this reply.
9 III. MPUSD is not entitled to costs “related to the administrative record” because MPUSD
was not the prevailing party under CCP section 1032 and because the record was not
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prepared under a procedure authorized by Public Resources Code section 21167.6.
11 As discussed above and in the Petitioners’ motion for attorney fees, MPUSD was not the
12 “prevailing party” under section 1032 and thus MPUSD is not entitled to costs, and the cost bill
13 should be stricken. MPUSD is not helped by the cases it cites. (Opp., 10:23-25). In River
14 Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154,
15 the petitioner RVPP had requested that the agency prepare the administrative record under
16 section 21167.6, subdivision (a). (Id. at 180.) The appellate court noted that “RVPP, as the
17 petitioner, had the option of preparing the administrative record itself to minimize expenses.
18 (§ 21167.6, subd. (b)(2); see Citizens for Quality Growth v. City of Mt. Shasta (1988) 198
19 Cal.App.3d 433, 447.” (37 Cal.App.4th 154, 180, fn. 31.) Both cases refer to allowing a
20 petitioner to minimize expenses, as does Hayward Area Planning Assn. v. City of Hayward
21 (2005) 128 Cal.App.4th 176, 180. Here, Petitioners elected to prepare the record under section
22 21167.6, subdivision (b)(2) to minimize expenses. (Corr. Erickson Decl., ¶ 3.)
23 In Santisas v. Goodin (1998) 17 Cal.4th 599 (Opp, 10:24-25), the plaintiffs had
24 voluntarily dismissed the Civil Code section 1717 action, which made defendants the "prevailing
25 parties" within the meaning of section 1032, subdivision (b).
26 Under Public Resources Code section 21167.6, a party can be awarded the cost of
27 preparing the administrative record only if it was prepared in one of the ways described in that
28 section: by the agency, by the plaintiff, or by another method agreed on by the agency and the
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 plaintiff. The courts are limited to awarding administrative record costs to situations in which the
2 record was prepared in a statutorily approved manner. (Hayward Area Planning, supra, 128
3 Cal.App.4th at pp. 182-184.) Here, as in Hayward Area Planning, the record was not prepared
4 by one of the statutorily approved methods. Instead, Petitioners elected to prepare it and was
5 well underway in preparing it when MPUSD unilaterally refused to respect Petitioner’s formal
6 election, and MPUSD announced that it had already prepared the record, over Petitioners’
7 objections, and MPUSD insisted that it would produce the records sought in Petitioner’s public
8 records request in the form of a certified administrative record. The parties did not agree on any
9 other method. Petitioners did not agree to be responsible for any costs, and MPUSD did not
10 tell, much less ask, Petitioners about any costs. MPUSD produced one incomplete
11 administrative record after another, which Petitioners had to compare to their compiled record
12 and review carefully for omissions and correct the errors and provide the missing records from
13 Petitioners’ compiled records.
14 An award of any amount to MPUSD for this item would be inconsistent with Petitioners’
15 election to prepare the record in order to minimize costs, would be contrary to the statutory
16 scheme, and would set a precedent that would discourage future public interest petitioners.
17 It is immaterial how many AR pages were referenced and by whom, contrary to
18 MPUSD's argument. (Opp., 6:18-19.) The contents of the record are statutory and mandatory,
19 regardless of which pages the parties and the court cite.
20 MPUSD makes claims that costs for the CEQA administrative record are recoverable
21 under Section 1033(a)(13) for “Models, the enlargements of exhibits and photocopies of
22 exhibits, and the electronic presentation of exhibits...may be allowed if they were reasonably
23 helpful to aid the trier of fact” or (a)(14) “Fees for the electronic filing or service of documents
24 through an electronic filing service provider if a court requires or orders electronic filing or
25 service of documents.” (Opp. 10:27-11:4.) MPUSD provides no support for its claims, and the
26 court should reject this effort to expand the scope of these subsections to include CEQA
27 administrative records, especially where, as here, MPUSD did not honor Petitioners’ election to
28 prepare the record themselves (Pub. Resources Code, § 21167.6(b)(2)) to minimize expenses
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 and where the record was not prepared in one of the ways authorized by the CEQA statute.
2 MPUSD in October 2023 had refused to produce the legal services invoices in response
3 to Petitioner’s request under the California Public Records Act. (Erickson Reply Decl., Ex. K.)
4 Petitioners are now able to respond to the new information provided for the first time on January
5 12, 2024 as Exhibit RR to the Simmons Declaration.
6 IV. The cost claims by MPUSD are not reasonable and not supported.
7 The cost claims are not reasonable in amount because they overreach and/or they are
8 not expressly authorized, and the court should exercise its discretion to tax the costs in full and
9 award nothing to MPUSD. (See Code Civ. Proc., § 1033.5, subd. (c)(2), (3).)
10 Out of an abundance of caution, Petitioners address the specific cost claims below.
11 A. MPUSD is not entitled to costs for preparation of the administrative record because none
of the statutorily authorized procedures were followed. Further, MPUSD has claimed
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that it produced the administrative record in response to Petitioners’ California Public
13 Records Act request for which the agency is not permitted to charge the requesters.
Finally, the costs claimed in the law firm invoices are not reasonable because they
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include more than administrative record preparation.
15 1. The statutory scheme does not authorize costs for the record on these facts.
16 As discussed above in section III, MPUSD is not entitled to costs "related to the
17 administrative record" because MPUSD was not the prevailing party under CCP section 1032
18 and because the record was not prepared under a procedure authorized by Public Resources
19 Code section 21167.6.
20 2. MPUSD may not charge for its choice to produce public records in the format of an
21 administrative record in responses to Petitioners’ Public Records Act request.
MPUSD stated in September 2021 that it had prepared and was producing the
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administrative record in response to Petitioners’ California Public Records Act request for the
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remaining parts of the record of proceedings. (Corr. Erickson Decl., filed Aug 24, 2023.) Local
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agencies may only charge the direct costs of duplicating records. (See Gov. Code,
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§ 7922.530(a) [agency “shall make the records promptly available to any person upon payment
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of fees covering direct costs of duplication, or a statutory fee if applicable]. MPUSD did not
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seek payment from Petitioners for the responses to the public records requests. MPUSD
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 having chosen voluntarily to produce in the form of an administrative record the public records in
2 response to Petitioners’ CPRA request, MPUSD is precluded from asking for payment for costs,
3 including ancillary costs such as document retrieval, inspection and handling of files. (See
4 Opp., 11:15-17.)
5 2. MPUSD’s claim for 250 law firm hours is not reasonable and is overreaching.
6 MPUSD’s January 12 opposition brief is the first disclosure of any support for the
7 MPUSD claim of costs "related to the record" – which turns out to be 250 law firm hours many of
8 which have nothing to do with actual record preparation, as explained below. MPUSD in
9 October 2023 denied Petitioners request for the documentary support of its $58,757 item for
10 costs “related to” the administrative record. (Erickson Reply Decl., Ex. K.) Following months of
11 denying Petitioners request to inspect the public records that supported the claim of costs
12 “related to the administrative record,” MPUSD in its opposition produced attorney-client invoices
13 showing the administrative record-related entries claimed as costs. (Opp., 16:22-24.) MPUSD
14 should have produced those months ago, and instead MPUSD unreasonably withheld the
15 records until the last minute when MPUSD chose to release them. MPUSD’s actions are similar
16 to those in the CPRA litigation, when MPUSD argued unsuccessfully that it was entitled to
17 withhold hundreds of records until after the EIR had been certified. There, as here, MPUSD’s
18 delaying tactics succeeded in denying petitioners and their members adequate time to review
19 the records at issue.
20 MPUSD’s meager argument about its eye-watering claim for $58,757.50 in costs starts
21 with a garbled 87-word sentence (Opp., 16:25-17:5) that Petitioners take apart here. MPUSD’s
22 claim about how its actions “were necessitated” because “Petitioners were unable to establish
23 the ability or willingness” (Opp., 16:26-17:2) for timely adjudication is defeated by the facts that
24 Petitioners acted expeditiously: Petitioners had elected timely to prepare the administrative
25 record, Petitioners already had most of the required contents, and Petitioners had made a
26 California Public Records Act request to MPUSD for the remaining records, and in response, on
27 September 20, 2021, MPUSD responded that “the District has already prepared and is in the
28 process of finalizing the Administrative Record.” (Petitioners’ memorandum in support of motion
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 to tax costs, filed Aug. 23, 2023, 1:23-24; Corrected Erickson Decl., filed Aug 24, 2023, Exhs. A,
2 B, emph. added.) On September 24, 2021, MPUSD affirmed that MPUSD had already
3 prepared the administrative record “concurrently with preparation of the EIR” and announced its
4 novel view that “Petitioner’s election to prepare the Administrative Record followed by
5 Petitioners’ September 10 PRA request for the documents that will make up the record is, in
6 effect, a request that the District prepare the Administrative Record for Petitioners.” (Corr.
7 Erickson Decl., Exh. C.) MPUSD presents no authority for its view which, if adopted by this
8 court, would defeat the statutory option in section 21167.6(b)(2) that authorizes the petitioner to
9 “elect to prepare the record of proceedings” and would undermine the statutory scheme for
10 controlling the costs of record preparation. (Hayward Area Planning Assn. v. City of Hayward
11 (2005) 128 Cal.App.4th 176, 180-184.)
12 MPUSD’s conclusory statement does not identify delay by Petitioners in preparing the
13 record. In fact, what dragged out this process was the unilateral actions by MPUSD to deny the
14 CPRA request by Petitioners for the records, to lodge inadequate and incomplete versions of
15 the AR, and to take time for its attorneys to review public records provided by Petitioners that
16 clearly met the requirements of section 21176.6(e) for inclusion in the record. (County of
17 Orange v. Superior Court (2003) 113 Cal.App.4th 1, 8 [“administrative record will include pretty
18 much everything that ever came near a proposed development or to the agency’s compliance
19 with CEQA in responding to that development”].) Petitioners were not informed of the
20 preparation in advance and Petitioners elected to prepare the record themselves to avoid
21 having the the agency do it. (See Hayward Area Citizens, supra, 128 Cal.App.4th at p. 184.)
22 MPUSD’s claim about its “need to review ... before inclusion” (Opp. 17:2) the records
23 that Petitioners provided to remedy the incomplete ARs that MPUSD had certified prematurely
24 fails because MPUSD points to no record that Petitioner provided that did not meet the
25 requirements for inclusion. In fact, Petitioner presented public records obtained from MPUSD,
26 the City of Monterey, and the Division of State Architect. Petitioners, had they prepared the
27 record as they had elected, "would have had reason to control those costs as the record was
28 being prepared, promoting efficiency and limiting the need for time consuming litigation and
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 judicial intervention," as the the appellate court commented in Hayward Area Planning, supra,
2 128 Cal.App.4th at p. 185.
3 MPUSD’s argument about its “obligation ... to certify the proper final administrative
4 record” (Opp. 17:4-28) is of no moment. MPUSD is mandated by Public Resources Code
5 section 21167.6(b)(2) to certify the record as complete. That obligation rests with the public
6 agency regardless of who prepares the record, and the statute does not authorize the public
7 agency to recover fees for performing that statutory duty. To make matters worse, MPUSD
8 twice took action to certify incomplete administrative records and much of the time and effort
9 was spent by Petitioners in trying to remedy the omissions to the record.
10 The amount is not reasonable in light of the discussion above, and that the fact that the
11 records were all electronic. MPUSD is not helped by its citations (Opp., 17:8-14.) The plaintiffs
12 in Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765 requested that the
13 respondent agency prepare the ROP (id. at 769), and the record was prepared in paper by
14 stamping, copying, handling more than 20 oversized maps, binding, making five sets of the AR,
15 (id. at 775-779), which is far less efficient than the all-electronic preparation in this case. The
16 agency time “went beyond that merely related to preparing the ROP.” (Id. at 779.) River Valley
17 Preservation Project v. Metro. Transit Devt. Bd. (1995) 37 Cal.App.4th 154, 180, also involved a
18 request by the petitioner that the agency prepare the administrative record. No Toxic Air, Inc. v.
19 Lehigh Southwest Cement Co. (2016) 1 Cal.App.5th 1136 was not a CEQA case.
20 _. MPUSD’s invoices show that most of the 250 hours claimed were not on record
21 preparation, and many are on litigation efforts that were not record preparation.
22 MPUSD's time records reveal that much of its eye-watering $58,757 "cost" claim is for
23 legal services for "strategy," "analysis" and “research” rather than for actual preparation of the
24 administrative record. The entire amount should be rejected for overreaching because charging
25 for work that is not actual preparation of the administrative record is inconsistent with the
26 ministerial nature of the task. When an agency prepares and certifies the administrative record,
27 it exercises no discretion and employs no specialized expertise. It performs a ministerial task
28 when it applies the mandatory language in Public Resources Code § 21167.6, subd. (e).
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 50,
2 disapproved on other grounds by Neighbors for Smart Rail v. Exposition Metro Line
3 Construction Authority (2013) 57 Cal. 4th 439, 451.) As summarized in the exhibits to the
4 Erickson declaration being filed concurrently with this reply brief, the invoices include the
5 following entries that are not actual preparation of the administrative record:
6 • 82 entries with the word “legal strategy” or “strategize” totaling 44.1 hours
7 • 55 entries with the words "analysis" or "analyze" totaling 38.7 hours
8 • 7 entries totaling 11.4 hours with the words “legal research”
• 18 entries totaling 50.7 hours for “research,” “review” and “add”ing to the AR the
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records provided by Petitioners in order to remedy the MPUSD’s incomplete ARs
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• 38 entries totaling 34.1 hours that describe legal services on a stipulation regarding
11 the contents of the AR and word count of briefs
12 • 21 entries totaling 12.5 hours in May 2022, long after the third AR was certified, on
the joint appendix of AR pages cited in the briefs, which at times is incorrectly
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described as “administrative record” (e.g., 5/31/2022 “joint administrative record”)
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• two entries totaling 1.2 hours for calendaring “legal deadlines”
15 • one entry for 1 hour for Mr. Freiman’s “email correspondence with Superintendent”
16 • 57 entries totaling 45.6 hours with the words “review”
17 • 7 entries totaling 5.5 hours with the words “notice of lodging”
18 • 4 entries totaling 4.1 hours with the words “meet and confer”
19 • 7 entries totaling 1.8 hours regarding Petitioners’ CPRA request, and 1 entry of 0.9
hours regarding preparing for a case management conference.
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(Erickson Reply Decl., Ex. L.) None of these is a reasonable cost for preparation of the record
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of proceedings. Furthermore, many of the entries are for more than one timekeeper, such as
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the five May 26, 2022 entries involving four different timekeepers (Simmons, Gleizer, Freiman,
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and “ADL”) all on the joint appendix of AR pages cited, rather than on preparation of the
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administrative record. Many entries for “prepare CEQA administrative record” are by attorneys (e.g.,
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(09/15/2021 SHG”); however, legal expertise is not necessary to compile such records.
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All of the entries for legal services are dated subsequent to August 27, 2021, the date
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that Petitioners filed their formal election to prepare the record. Furthermore, more than 230
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entries totaling approximately 225 hours are for legal services dated subsequent to the
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 September 20, 2021 statement by MPUSD that the “District has already prepared” the
2 administrative record. (Erickson Reply Decl., ¶ 7.)
3 The court should exercise its discretion and deny the entire cost item as not reasonable
4 because it is permeated and infected with impermissible legal services and unreliable claims.
5 B. Photocopies of exhibits are not permissible costs and are not reasonable in this case.
6 MPUSD does not cite authority to award costs for photocopies of the administrative
7 record. The following cost claims are not reasonable because AR pages are not exhibits and
8 the court in a CEQA case is not a trier of fact (Fat v. County of Sacramento (2002) 97
9 Cal.App.4th 1270, 1277; Madera Oversight Coalition, supra, 199 Cal.App.4th 48, 102, fn. 31): all
10 the charges in support of the AR pages for the District’s motion to reconsider: the $86.00 for the
11 delivery of an appendix of AR pages; $136.80 for the exhibit tabs; $29.96 for the delivery to First
12 Legal via Fed-Ex of the Chambers Copy of the appendix of AR pages; $171.68 for First Legal’s
13 delivery of Chambers Copy of appendix of AR pages. The claimed cost of $40.41 for the
14 delivery of a USB drive of the certified administrative record in January 2022 is not reasonable
15 because Petitioners elected to prepare the record and would have lodged the USB to minimize
16 costs. The $19.26 for Fed Ex delivery of a copy of AR 9217 is not reasonable because it could
17 have been filed at no cost online.
18 C. Court reporter appearance fees are not recoverable under the authority cited by MPUSD.
19 The District cites section 1033.5, subd. (b)(4) in support of its $7,575 claim for court
20 reporter fees. (Opp., 15:23-24.) The cited section 1033.5(b)(4) states that “Costs in
21 investigation of jurors or in preparation for voir dire” are not allowable as costs. It does not
22 authorize court reporter costs. MPUSD’s argument shows that the item was not necessary
23 MPUSD used the resulting transcripts for its own benefit. (E.g., Opp, 16:9, 16:12-13.)
24 D. Public agencies are exempt from filing fees under Government Code section 6103.
25 MPUSD as a public agency is exempt from filing fees so its cost claim is not reasonable.
26 Conclusion.
27 The Court should strike Respondents’ cost bill in full because Respondents are not the
28 prevailing party. In the alternative, for each of the reasons above and in the moving papers, the
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
1 Court should tax the costs as to the full amount of each item presented.
2 Respectfully submitted,
Dated: January 19, 2024 Law Office of Molly Erickson
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/s/ Molly Erickson
4 _______________________________
Attorney for Petitioners Preserving the Peace
5 and Taxpayers for MPUSD Accountability
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PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON
CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS
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1 Molly E. Erickson, State Bar No. 253198 LAW OFFICE OF MOLLY ERICKSON 2 Box 2448 Monterey, California 93942 3 Telephone: (831) 373-1214 Email: Erickson@stamplaw.us 4 Attorney for Petitioners, 5 Preserving the Peace and Taxpayers for MPUSD Accountability 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF MONTEREY 8 PRESERVING THE PEACE, TAXPAYERS Case No. 21CV002755 9 FOR MPUSD ACCOUNTABILITY, Filed August 27, 2021 Notice of Entry of Judgment: July 24, 2023 10 Petitioners and Plaintiffs, Notice of Appeal: August 21, 2023 Deemed complex and assigned for all 11 v. purposes to the Hon. Thomas W. Wills 12 MONTEREY PENINSULA UNIFIED SCHOOL DISTRICT, et al., Hearing on motion: 13 Date: January 26, 2024, 2023 Respondents and Defendants. Time: 8:30 a.m. 14 ______________________________/ Department 15 15 16 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY ON 17 PETITIONERS’ MOTION TO STRIKE MEMORANDUM OF COSTS FILED BY RESPONDENT, 18 OR, IN THE ALTERNATIVE, MOTION TO TAX COSTS 19 20 21 22 23 24 25 26 27 28 1 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 Summary of argument 2 The court should find that Respondents were not the prevailing party for purposes of 3 costs under Code of Civil Procedure section 1032. Once the court makes that determination, 4 the inquiry ends. The public interest Petitioners obtained relief through the judgment and writ, 5 and thus Petitioners are the prevailing party under section 1032(a)(4). Respondents are not the 6 prevailing party because they did not obtain any relief. The motion to strike should be granted. 7 Discussion. 8 I. Petitioners Incorporate by Reference Related Filings on Fees and Costs Which Support this Reply and Establish that Respondents Are Not a "Prevailing Party" for Purposes of 9 Costs and that the Petitioners Are the Prevailing Parties. 10 Three motions are set to be heard on January 26, 2024: the instant motion, Petitioners' 11 motion for attorney fees, and the District's motion to strike and/or tax petitioners' costs. 12 Petitioners hereby incorporate by reference those discussions and arguments set forth in 13 opposition to the the District's Motion to Strike and/or Tax Petitioners' Costs and the moving and 14 reply papers on Petitioners' Motion for Attorney Fees that are relevant to this reply, including but 15 not limited to the facts and evidence described and submitted in support of same, and 16 arguments regarding why Petitioners are a prevailing party pursuant to Code of Civil Procedure 17 section 1032, Code of Civil Procedure section 1021.5, and CEQA. Said arguments have been 18 and/or will be included in Petitioners’ papers in support of its Motion to Strike and/or Tax Costs 19 of Respondent, Petitioners’ moving papers and reply in support of Petitioners' Motion for 20 Attorneys' Fees, and Petitioners’ opposition to MPUSD’s motion challenging Petitioners’ 21 amended cost bill. Those papers confirm that Petitioners are prevailing parties, and that the 22 District is not, which supports this court’s denial of the District's requested costs. 23 II. Petitioners Prevailed in this Case, and the Relief Provided Is Adequate to Establish 24 Prevailing Party Status for Petitioners. 25 As set forth in Petitioners’ filings on the motions on fees and costs, Petitioners were the 26 prevailing parties because the Judgment was issued in favor of Petitioners and the writ was 27 granted on two grounds. This is relief that is “other than monetary relief.” (Code Civ. Proc., 28 § 1032(a)(4)). It is not disputed that monetary relief is not available in a CEQA case. MPUSD 2 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 complains that Petitioners obtained a “modicum of relief.” (Resps.’ Opp to Petitioners’ Motion to 2 Strike, filed Jan 12, 2024, 4:2.) “Modicum” is defined as “a small amount of something good 3 such as truth or honesty.” (https://dictionary.cambridge.org/us/dictionary/english/modicum) 4 Here the Judgment and writ resulted in two good material changes to the FEIR, including 5 amendments to the mitigation that is intended to mitigate what undisputedly will be significant 6 and unavoidable noise impacts. But for the litigation, that relief would not have been obtained, 7 and that relief will benefit all persons who are within noise ranger of the project. 8 Under the circumstances of this case, the court can and should find that Respondents 9 are not the prevailing parties. The Judgment found in favor of Petitioners on two grounds and 10 ordered the Respondents to take specific action. The statement of decision found EIR 11 Mitigation Measure 3.11-3 infirm (Judgment, Exh. A, pp. 58-61), as explained in the moving and 12 reply papers on Petitioners’ motion for attorney fees that will be heard on the same date as the 13 instant motion. MPUSD makes an incorrect claim that MM 3.11-3 was “found valid.” (Opp. 14 8:25-26.) MPUSD’s cites to SOD page 61 which says that “the EIR does not fall short in any 15 other respects regarding noise impacts” other than those identified at length in the discussion 16 on pages 58-61 as to the infirmities of the noise mitigation measure, MM 3.11-3. 17 MPUSD’s argument as to the inconsistency of the EIR’s parking conclusion is not well 18 taken because Petitioners raised arguments about the inconsistent parking discussion in the 19 EIR, and but for the litigation, the inconsistency found by the court would not have been 20 addressed. It is not necessary that a party have made the particular legal argument which 21 vindicated the public right affecting the public interest. “It is enough that but for the party's legal 22 action the right would not have been vindicated." (Protect Our Water v. County of Merced 23 (2005) 130 Cal.App.4th 488, 495.) 24 MPUSD argument about the level of success (Opp., 9:1-6) fails under the facts of this 25 case and applicable case law. In Friends of Spring Street (2019) 33 Cal.App.5th 1092, the trial 26 court had determined that the plaintiff was not the prevailing party under CCP section 27 1032(a)(4) primarily because it did not achieve a "practical result" and "only obtained relief on 28 one of its five causes of action." (Id. at p. 1104-1105.) The Court of Appeal reversed the trial 3 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 court, and held that a plaintiff's failure to succeed on only one of several causes of action has 2 been held insufficient to deny a party fees and costs. (Ibid.) A determination that a party was 3 successful in its action does not require a showing that the successful party put the entire 4 dispute to rest for all time. (Ibid., citing La Mirada Avenue Nbrhd Assn. of Hollywood v. City of 5 Los Angeles (2018) 22 Cal.App.5th 1149, 1159-1160.) Here, Petitioners obtained a practical 6 result, in particular the amended noise mitigation in the Amended FEIR. 7 MPUSD’s “statement of facts” (Opp., 5:17-7:11) is weakened by argument, opinion, and 8 inaccuracies too extensive to address here given page limits on this reply. 9 III. MPUSD is not entitled to costs “related to the administrative record” because MPUSD was not the prevailing party under CCP section 1032 and because the record was not 10 prepared under a procedure authorized by Public Resources Code section 21167.6. 11 As discussed above and in the Petitioners’ motion for attorney fees, MPUSD was not the 12 “prevailing party” under section 1032 and thus MPUSD is not entitled to costs, and the cost bill 13 should be stricken. MPUSD is not helped by the cases it cites. (Opp., 10:23-25). In River 14 Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154, 15 the petitioner RVPP had requested that the agency prepare the administrative record under 16 section 21167.6, subdivision (a). (Id. at 180.) The appellate court noted that “RVPP, as the 17 petitioner, had the option of preparing the administrative record itself to minimize expenses. 18 (§ 21167.6, subd. (b)(2); see Citizens for Quality Growth v. City of Mt. Shasta (1988) 198 19 Cal.App.3d 433, 447.” (37 Cal.App.4th 154, 180, fn. 31.) Both cases refer to allowing a 20 petitioner to minimize expenses, as does Hayward Area Planning Assn. v. City of Hayward 21 (2005) 128 Cal.App.4th 176, 180. Here, Petitioners elected to prepare the record under section 22 21167.6, subdivision (b)(2) to minimize expenses. (Corr. Erickson Decl., ¶ 3.) 23 In Santisas v. Goodin (1998) 17 Cal.4th 599 (Opp, 10:24-25), the plaintiffs had 24 voluntarily dismissed the Civil Code section 1717 action, which made defendants the "prevailing 25 parties" within the meaning of section 1032, subdivision (b). 26 Under Public Resources Code section 21167.6, a party can be awarded the cost of 27 preparing the administrative record only if it was prepared in one of the ways described in that 28 section: by the agency, by the plaintiff, or by another method agreed on by the agency and the 4 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 plaintiff. The courts are limited to awarding administrative record costs to situations in which the 2 record was prepared in a statutorily approved manner. (Hayward Area Planning, supra, 128 3 Cal.App.4th at pp. 182-184.) Here, as in Hayward Area Planning, the record was not prepared 4 by one of the statutorily approved methods. Instead, Petitioners elected to prepare it and was 5 well underway in preparing it when MPUSD unilaterally refused to respect Petitioner’s formal 6 election, and MPUSD announced that it had already prepared the record, over Petitioners’ 7 objections, and MPUSD insisted that it would produce the records sought in Petitioner’s public 8 records request in the form of a certified administrative record. The parties did not agree on any 9 other method. Petitioners did not agree to be responsible for any costs, and MPUSD did not 10 tell, much less ask, Petitioners about any costs. MPUSD produced one incomplete 11 administrative record after another, which Petitioners had to compare to their compiled record 12 and review carefully for omissions and correct the errors and provide the missing records from 13 Petitioners’ compiled records. 14 An award of any amount to MPUSD for this item would be inconsistent with Petitioners’ 15 election to prepare the record in order to minimize costs, would be contrary to the statutory 16 scheme, and would set a precedent that would discourage future public interest petitioners. 17 It is immaterial how many AR pages were referenced and by whom, contrary to 18 MPUSD's argument. (Opp., 6:18-19.) The contents of the record are statutory and mandatory, 19 regardless of which pages the parties and the court cite. 20 MPUSD makes claims that costs for the CEQA administrative record are recoverable 21 under Section 1033(a)(13) for “Models, the enlargements of exhibits and photocopies of 22 exhibits, and the electronic presentation of exhibits...may be allowed if they were reasonably 23 helpful to aid the trier of fact” or (a)(14) “Fees for the electronic filing or service of documents 24 through an electronic filing service provider if a court requires or orders electronic filing or 25 service of documents.” (Opp. 10:27-11:4.) MPUSD provides no support for its claims, and the 26 court should reject this effort to expand the scope of these subsections to include CEQA 27 administrative records, especially where, as here, MPUSD did not honor Petitioners’ election to 28 prepare the record themselves (Pub. Resources Code, § 21167.6(b)(2)) to minimize expenses 5 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 and where the record was not prepared in one of the ways authorized by the CEQA statute. 2 MPUSD in October 2023 had refused to produce the legal services invoices in response 3 to Petitioner’s request under the California Public Records Act. (Erickson Reply Decl., Ex. K.) 4 Petitioners are now able to respond to the new information provided for the first time on January 5 12, 2024 as Exhibit RR to the Simmons Declaration. 6 IV. The cost claims by MPUSD are not reasonable and not supported. 7 The cost claims are not reasonable in amount because they overreach and/or they are 8 not expressly authorized, and the court should exercise its discretion to tax the costs in full and 9 award nothing to MPUSD. (See Code Civ. Proc., § 1033.5, subd. (c)(2), (3).) 10 Out of an abundance of caution, Petitioners address the specific cost claims below. 11 A. MPUSD is not entitled to costs for preparation of the administrative record because none of the statutorily authorized procedures were followed. Further, MPUSD has claimed 12 that it produced the administrative record in response to Petitioners’ California Public 13 Records Act request for which the agency is not permitted to charge the requesters. Finally, the costs claimed in the law firm invoices are not reasonable because they 14 include more than administrative record preparation. 15 1. The statutory scheme does not authorize costs for the record on these facts. 16 As discussed above in section III, MPUSD is not entitled to costs "related to the 17 administrative record" because MPUSD was not the prevailing party under CCP section 1032 18 and because the record was not prepared under a procedure authorized by Public Resources 19 Code section 21167.6. 20 2. MPUSD may not charge for its choice to produce public records in the format of an 21 administrative record in responses to Petitioners’ Public Records Act request. MPUSD stated in September 2021 that it had prepared and was producing the 22 administrative record in response to Petitioners’ California Public Records Act request for the 23 remaining parts of the record of proceedings. (Corr. Erickson Decl., filed Aug 24, 2023.) Local 24 agencies may only charge the direct costs of duplicating records. (See Gov. Code, 25 § 7922.530(a) [agency “shall make the records promptly available to any person upon payment 26 of fees covering direct costs of duplication, or a statutory fee if applicable]. MPUSD did not 27 seek payment from Petitioners for the responses to the public records requests. MPUSD 28 6 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 having chosen voluntarily to produce in the form of an administrative record the public records in 2 response to Petitioners’ CPRA request, MPUSD is precluded from asking for payment for costs, 3 including ancillary costs such as document retrieval, inspection and handling of files. (See 4 Opp., 11:15-17.) 5 2. MPUSD’s claim for 250 law firm hours is not reasonable and is overreaching. 6 MPUSD’s January 12 opposition brief is the first disclosure of any support for the 7 MPUSD claim of costs "related to the record" – which turns out to be 250 law firm hours many of 8 which have nothing to do with actual record preparation, as explained below. MPUSD in 9 October 2023 denied Petitioners request for the documentary support of its $58,757 item for 10 costs “related to” the administrative record. (Erickson Reply Decl., Ex. K.) Following months of 11 denying Petitioners request to inspect the public records that supported the claim of costs 12 “related to the administrative record,” MPUSD in its opposition produced attorney-client invoices 13 showing the administrative record-related entries claimed as costs. (Opp., 16:22-24.) MPUSD 14 should have produced those months ago, and instead MPUSD unreasonably withheld the 15 records until the last minute when MPUSD chose to release them. MPUSD’s actions are similar 16 to those in the CPRA litigation, when MPUSD argued unsuccessfully that it was entitled to 17 withhold hundreds of records until after the EIR had been certified. There, as here, MPUSD’s 18 delaying tactics succeeded in denying petitioners and their members adequate time to review 19 the records at issue. 20 MPUSD’s meager argument about its eye-watering claim for $58,757.50 in costs starts 21 with a garbled 87-word sentence (Opp., 16:25-17:5) that Petitioners take apart here. MPUSD’s 22 claim about how its actions “were necessitated” because “Petitioners were unable to establish 23 the ability or willingness” (Opp., 16:26-17:2) for timely adjudication is defeated by the facts that 24 Petitioners acted expeditiously: Petitioners had elected timely to prepare the administrative 25 record, Petitioners already had most of the required contents, and Petitioners had made a 26 California Public Records Act request to MPUSD for the remaining records, and in response, on 27 September 20, 2021, MPUSD responded that “the District has already prepared and is in the 28 process of finalizing the Administrative Record.” (Petitioners’ memorandum in support of motion 7 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 to tax costs, filed Aug. 23, 2023, 1:23-24; Corrected Erickson Decl., filed Aug 24, 2023, Exhs. A, 2 B, emph. added.) On September 24, 2021, MPUSD affirmed that MPUSD had already 3 prepared the administrative record “concurrently with preparation of the EIR” and announced its 4 novel view that “Petitioner’s election to prepare the Administrative Record followed by 5 Petitioners’ September 10 PRA request for the documents that will make up the record is, in 6 effect, a request that the District prepare the Administrative Record for Petitioners.” (Corr. 7 Erickson Decl., Exh. C.) MPUSD presents no authority for its view which, if adopted by this 8 court, would defeat the statutory option in section 21167.6(b)(2) that authorizes the petitioner to 9 “elect to prepare the record of proceedings” and would undermine the statutory scheme for 10 controlling the costs of record preparation. (Hayward Area Planning Assn. v. City of Hayward 11 (2005) 128 Cal.App.4th 176, 180-184.) 12 MPUSD’s conclusory statement does not identify delay by Petitioners in preparing the 13 record. In fact, what dragged out this process was the unilateral actions by MPUSD to deny the 14 CPRA request by Petitioners for the records, to lodge inadequate and incomplete versions of 15 the AR, and to take time for its attorneys to review public records provided by Petitioners that 16 clearly met the requirements of section 21176.6(e) for inclusion in the record. (County of 17 Orange v. Superior Court (2003) 113 Cal.App.4th 1, 8 [“administrative record will include pretty 18 much everything that ever came near a proposed development or to the agency’s compliance 19 with CEQA in responding to that development”].) Petitioners were not informed of the 20 preparation in advance and Petitioners elected to prepare the record themselves to avoid 21 having the the agency do it. (See Hayward Area Citizens, supra, 128 Cal.App.4th at p. 184.) 22 MPUSD’s claim about its “need to review ... before inclusion” (Opp. 17:2) the records 23 that Petitioners provided to remedy the incomplete ARs that MPUSD had certified prematurely 24 fails because MPUSD points to no record that Petitioner provided that did not meet the 25 requirements for inclusion. In fact, Petitioner presented public records obtained from MPUSD, 26 the City of Monterey, and the Division of State Architect. Petitioners, had they prepared the 27 record as they had elected, "would have had reason to control those costs as the record was 28 being prepared, promoting efficiency and limiting the need for time consuming litigation and 8 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 judicial intervention," as the the appellate court commented in Hayward Area Planning, supra, 2 128 Cal.App.4th at p. 185. 3 MPUSD’s argument about its “obligation ... to certify the proper final administrative 4 record” (Opp. 17:4-28) is of no moment. MPUSD is mandated by Public Resources Code 5 section 21167.6(b)(2) to certify the record as complete. That obligation rests with the public 6 agency regardless of who prepares the record, and the statute does not authorize the public 7 agency to recover fees for performing that statutory duty. To make matters worse, MPUSD 8 twice took action to certify incomplete administrative records and much of the time and effort 9 was spent by Petitioners in trying to remedy the omissions to the record. 10 The amount is not reasonable in light of the discussion above, and that the fact that the 11 records were all electronic. MPUSD is not helped by its citations (Opp., 17:8-14.) The plaintiffs 12 in Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765 requested that the 13 respondent agency prepare the ROP (id. at 769), and the record was prepared in paper by 14 stamping, copying, handling more than 20 oversized maps, binding, making five sets of the AR, 15 (id. at 775-779), which is far less efficient than the all-electronic preparation in this case. The 16 agency time “went beyond that merely related to preparing the ROP.” (Id. at 779.) River Valley 17 Preservation Project v. Metro. Transit Devt. Bd. (1995) 37 Cal.App.4th 154, 180, also involved a 18 request by the petitioner that the agency prepare the administrative record. No Toxic Air, Inc. v. 19 Lehigh Southwest Cement Co. (2016) 1 Cal.App.5th 1136 was not a CEQA case. 20 _. MPUSD’s invoices show that most of the 250 hours claimed were not on record 21 preparation, and many are on litigation efforts that were not record preparation. 22 MPUSD's time records reveal that much of its eye-watering $58,757 "cost" claim is for 23 legal services for "strategy," "analysis" and “research” rather than for actual preparation of the 24 administrative record. The entire amount should be rejected for overreaching because charging 25 for work that is not actual preparation of the administrative record is inconsistent with the 26 ministerial nature of the task. When an agency prepares and certifies the administrative record, 27 it exercises no discretion and employs no specialized expertise. It performs a ministerial task 28 when it applies the mandatory language in Public Resources Code § 21167.6, subd. (e). 9 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 50, 2 disapproved on other grounds by Neighbors for Smart Rail v. Exposition Metro Line 3 Construction Authority (2013) 57 Cal. 4th 439, 451.) As summarized in the exhibits to the 4 Erickson declaration being filed concurrently with this reply brief, the invoices include the 5 following entries that are not actual preparation of the administrative record: 6 • 82 entries with the word “legal strategy” or “strategize” totaling 44.1 hours 7 • 55 entries with the words "analysis" or "analyze" totaling 38.7 hours 8 • 7 entries totaling 11.4 hours with the words “legal research” • 18 entries totaling 50.7 hours for “research,” “review” and “add”ing to the AR the 9 records provided by Petitioners in order to remedy the MPUSD’s incomplete ARs 10 • 38 entries totaling 34.1 hours that describe legal services on a stipulation regarding 11 the contents of the AR and word count of briefs 12 • 21 entries totaling 12.5 hours in May 2022, long after the third AR was certified, on the joint appendix of AR pages cited in the briefs, which at times is incorrectly 13 described as “administrative record” (e.g., 5/31/2022 “joint administrative record”) 14 • two entries totaling 1.2 hours for calendaring “legal deadlines” 15 • one entry for 1 hour for Mr. Freiman’s “email correspondence with Superintendent” 16 • 57 entries totaling 45.6 hours with the words “review” 17 • 7 entries totaling 5.5 hours with the words “notice of lodging” 18 • 4 entries totaling 4.1 hours with the words “meet and confer” 19 • 7 entries totaling 1.8 hours regarding Petitioners’ CPRA request, and 1 entry of 0.9 hours regarding preparing for a case management conference. 20 (Erickson Reply Decl., Ex. L.) None of these is a reasonable cost for preparation of the record 21 of proceedings. Furthermore, many of the entries are for more than one timekeeper, such as 22 the five May 26, 2022 entries involving four different timekeepers (Simmons, Gleizer, Freiman, 23 and “ADL”) all on the joint appendix of AR pages cited, rather than on preparation of the 24 administrative record. Many entries for “prepare CEQA administrative record” are by attorneys (e.g., 25 (09/15/2021 SHG”); however, legal expertise is not necessary to compile such records. 26 All of the entries for legal services are dated subsequent to August 27, 2021, the date 27 that Petitioners filed their formal election to prepare the record. Furthermore, more than 230 28 entries totaling approximately 225 hours are for legal services dated subsequent to the 10 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 September 20, 2021 statement by MPUSD that the “District has already prepared” the 2 administrative record. (Erickson Reply Decl., ¶ 7.) 3 The court should exercise its discretion and deny the entire cost item as not reasonable 4 because it is permeated and infected with impermissible legal services and unreliable claims. 5 B. Photocopies of exhibits are not permissible costs and are not reasonable in this case. 6 MPUSD does not cite authority to award costs for photocopies of the administrative 7 record. The following cost claims are not reasonable because AR pages are not exhibits and 8 the court in a CEQA case is not a trier of fact (Fat v. County of Sacramento (2002) 97 9 Cal.App.4th 1270, 1277; Madera Oversight Coalition, supra, 199 Cal.App.4th 48, 102, fn. 31): all 10 the charges in support of the AR pages for the District’s motion to reconsider: the $86.00 for the 11 delivery of an appendix of AR pages; $136.80 for the exhibit tabs; $29.96 for the delivery to First 12 Legal via Fed-Ex of the Chambers Copy of the appendix of AR pages; $171.68 for First Legal’s 13 delivery of Chambers Copy of appendix of AR pages. The claimed cost of $40.41 for the 14 delivery of a USB drive of the certified administrative record in January 2022 is not reasonable 15 because Petitioners elected to prepare the record and would have lodged the USB to minimize 16 costs. The $19.26 for Fed Ex delivery of a copy of AR 9217 is not reasonable because it could 17 have been filed at no cost online. 18 C. Court reporter appearance fees are not recoverable under the authority cited by MPUSD. 19 The District cites section 1033.5, subd. (b)(4) in support of its $7,575 claim for court 20 reporter fees. (Opp., 15:23-24.) The cited section 1033.5(b)(4) states that “Costs in 21 investigation of jurors or in preparation for voir dire” are not allowable as costs. It does not 22 authorize court reporter costs. MPUSD’s argument shows that the item was not necessary 23 MPUSD used the resulting transcripts for its own benefit. (E.g., Opp, 16:9, 16:12-13.) 24 D. Public agencies are exempt from filing fees under Government Code section 6103. 25 MPUSD as a public agency is exempt from filing fees so its cost claim is not reasonable. 26 Conclusion. 27 The Court should strike Respondents’ cost bill in full because Respondents are not the 28 prevailing party. In the alternative, for each of the reasons above and in the moving papers, the 11 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS 1 Court should tax the costs as to the full amount of each item presented. 2 Respectfully submitted, Dated: January 19, 2024 Law Office of Molly Erickson 3 /s/ Molly Erickson 4 _______________________________ Attorney for Petitioners Preserving the Peace 5 and Taxpayers for MPUSD Accountability 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 PRESERVING THE PEACE V. MPUSD MEMORANDUM IN REPLY ON CASE NO. 21CV002755 PETITIONERS’ MOTION TO STRIKE/TAX COSTS