Preview
1 Erica A. Maharg (State Bar No. 279396)
2 M. Benjamin Eichenberg (State Bar No. 270893) ELECTRONICALLY
Nicole C. Sasaki (State Bar No. 298736) F I L E D
3 SAN FRANCISCO BAYKEEPER, INC. Superior Court of California,
County of San Francisco
1736 Franklin Street, Suite 800
4 Oakland, California 94612 08/07/2019
Clerk of the Court
Telephone: (510) 735-9700
5 Facsimile: (510) 735-9160
BY: CAROL BALISTRERI
Deputy Clerk
6 Email: erica@baykeeper.org
Email: ben@baykeeper.org
7 Email: nicole@baykeeper.org
8 Tyler Meade (State Bar No. 160838)
Anne Decker (State Bar No. 268435)
9 Sam Ferguson (State Bar No. 270957)
10 Seena Forouzan (State Bar No. 317777)
THE MEADE FIRM p.c.
11 12 Funston Ave., Suite A
San Francisco, CA 94129
12 Telephone: (415) 724-9600
Email: tyler@meadefirm.com
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Email: annie@meadefirm.com
14 Email: sam@meadefirm.com
Email: seena@meadefirm.com
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Attorneys for Petitioner
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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20 SAN FRANCISCO BAYKEEPER, INC., Case No. CPF-12-512620
21 Date Filed: November 16, 2012
Petitioner,
22 Reply in Support of Petitioner’s Motion
vs. to Strike or Tax Costs; Attached
23 Documents: Declaration of Erica A.
CALIFORNIA STATE LANDS Maharg in Support of Reply
24 COMMISSION,
25 Date: August 14, 2019
Respondents, Time: 10:00 a.m.
26 Dept.: 613
HANSON MARINE OPERATIONS, INC.; Judge: Honorable Teri L. Jackson
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HANSON AGGREGATES, LLC; JERICO Location: 400 McAllister St., San
1 PRODUCTS, INC., MORRIS TUG & Francisco, CA 94102
2 BARGE, INC.; and SUISUN ASSOCIATES,
3 Real Parties in Interest.
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1 I. INTRODUCTION
2 Real Parties in Interest’s Opposition to Baykeeper’s Motion to Strike or in the Alternative to
3 Tax Memorandum of Costs (“Opposition”) fails to evade the conclusion that they waived the right to
4 seek trial-level costs in 2017. The appellate court’s remittitur and the parties’ stipulation two years after
5 the relevant deadline do nothing to resurrect any claim Real Parties might have had to seek trial-level
6 costs. This Court must strike the costs memorandum in its entirety. No statutory basis exists for
7 considering it, and any other ruling would constitute a reversible abuse of discretion. (Sanabria v.
8 Embrey (2001) 92 Cal. App. 4th 422, 426.)
9 If somehow this Court nonetheless finds that Real Parties did not waive their right to seek trial-
10 level costs, it should reject Real Parties’ efforts to overreach both in type of costs claimed and in
11 amount. Whether the costs were actually incurred, which the submissions provided with the Opposition
12 might adequately demonstrate, is irrelevant to whether the amount claimed was reasonable or necessary.
13 If the costs memorandum is not stricken in its entirety as clearly untimely, certain items should be
14 stricken and others substantially reduced for the reasons detailed in this Reply as well as in Baykeeper’s
15 July 3, 2019 Memorandum of Points and Authorities in Support of Petitioner’s Motion to Strike or in the
16 Alternative to Tax Real Parties in Interest’s Memorandum of Costs (“P&A”).
17 II. ARGUMENT
18 A. Real Parties Fail To Cite a Single Relevant Authority To Support Their Position That They
Did Not Waive Their Right to Seek Costs
19 In the Opposition, Real Parties essentially seem to concede the issue. They fail to provide any
20 real authority to support their argument that they did not waive costs. They suggest two bases for why
21 they can seek these costs: first, that the remittitur from the Court of Appeals was relevant to the finality
22 of this Court’s trial order for purposes of seeking trial-level costs, and, second, that the parties’
23 stipulation in 2019 effectively turned back time to 2017 and thereby extended the deadline for filing a
24 costs memorandum. Neither argument is persuasive.
25 1. The Entry of Judgment Was Final for Purposes of the Costs Memorandum
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1 In the P&A, Baykeeper has shown that the entry of and service of this Court’s order in April
2 2017 started the 15-day clock on filing a costs memorandum. See P&A at 9:19-11:7. Additional
3 authorities confirm that point, despite Real Parties’ unsupported position to the contrary. First,
4 California law defines a “judgment” in a special proceeding, such as a writ of mandate, as the “final
5 determination of the rights of the parties therein.” (Code of Civ. Proc. § 577.) This Court’s order
6 granting the motion to discharge the peremptory writ was such a final determination. (See, e.g., Conasul
7 v. City of San Diego (1992) 6 Cal. App. 4th 1781, 1792 n.6 (“The order denying the petition for writ of
8 mandate and overruling the City’s demurrer was a final determination of the entire action. As such, we
9 construe the order to be an appealable final judgment.”).) The fact that Baykeeper proceeded to appeal,
10 and that the Court of Appeal ruled on the appeal, confirms that the Court’s order granting to motion to
11 discharge was final. (See also, e.g., Turner v. Los Angeles Realty Bd., Inc. (1965) 233 Cal. App. 2d 755,
12 758 (“With certain statutory exceptions not herein involved, it is the fundamental rule in California, as in
13 most jurisdictions, that no order or judgment may be appealed from unless it finally disposes of the case
14 in the trial court.”).) The language in the April 5, 2019 remittitur issued pursuant to Code of Civ. Proc. §
15 912 is irrelevant.
16 Thus, the clock started ticking with the service of this Court’s order on April 24, 2017, and
17 failure to file the costs memorandum or to seek any extension at the time constitutes waiver, as
18 California courts have repeatedly held. See P&A at 9:19-11:7.
19 2. The Parties’ 2019 Stipulation Did Not Start the Clock Again
20 The Parties’ Stipulation in 2019 did not restart the clock. The deadline for any extension under
21 Rule 3.1700(b)(3) passed more than two years ago. Parties cannot stipulate to anything that contradicts
22 the law. A court therefore can disregard a stipulation “if it is ‘illegal’ or ‘contrary to public policy.’”
23 (Estate of Howe, 88 Cal.App.2d 454, 458, 199 P.2d 59; see also 1 Witkin, Cal. Procedure (2d ed.)
24 Attorneys, s 123; Estate of Burson (1975) 51 Cal. App. 3d 300, 306.). Reflecting a related principle,
25 courts can disregard stipulations entered into through inadvertence or mistake of fact. (Baker v. Ramirez
26 (1987) 190 Cal. App. 3d 1123, 1135.)
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1 Baykeeper was not conceding by entering into the stipulation that Real Parties had a right to
2 trial-level costs, any more than Real Parties were conceding that Baykeeper had a right to seek
3 attorneys’ fees. The stipulation allowed time to research the relative strength and weaknesses of the
4 parties’ rights to fees and costs. Declaration of Erica A. Maharg in Support of Reply in Support of
5 Petitioner’s Motion to Strike or Tax Costs (“Maharg Decl.”), ¶ 3. Once Baykeeper researched the
6 question, it was clear that Real Parties had waived their right to trial-level costs entirely. Id.
7 Real Parties assert that “[t]he stipulation did not specify that it only applied to appellate costs,
8 nor that it applied only to Baykeeper’s costs.” Opp. at 9:3-4 (emphasis added). To the contrary, the only
9 cost provisions cited are relevant to appellate-level costs. See Stipulation to Extend Deadline to File
10 Motion for Attorneys’ Fees and Memorandum of Costs (citing California Rules of Court 3.1702(c) and
11 8.278). But Baykeeper does not rest its motion to strike costs on that fact. At the time, the parties entered
12 the stipulation, Real Parties had waived their right to seek trial-level costs. A stipulation cannot override
13 the statutory deadline to seek costs, even one that properly identified the trial-level costs provisions.1
14 In summary, parties have a certain amount of leeway under the statutory scheme when seeking
15 costs—they can stipulate or seek a short court-ordered extension before the 15-day deadline has expired,
16 Rule 3.1700(b)(3), and they can negotiate the method of payment of costs, Code of Civ. Proc. § 1032(c),
17 but they still must comply with the Rules. (See, e.g., Jones v. Union Bank of California (2005) 127 Cal.
18 App. 4th 542, 551, as modified on denial of reh’g (Mar. 11, 2005).) The costs memorandum must be
19 stricken in its entirety.
20 B. Real Parties Claim Costs for Items Outside This Litigation or Not Permitted by the Costs
Provisions
21 Real Parties seek to recoup payments they made in different litigation and payments for expenses
22 not permitted under the California rules.
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Moreover, courts can disregard a stipulation entered into through inadvertence or mistake of fact.
25 (Baker v. Ramirez (1987) 190 Cal. App. 3d 1123, 1135.) If this Court does find that the stipulation
renewed Real Parties’ opportunity to seek costs, the Court should nonetheless disregard the stipulation
26 since Baykeeper entered into the stipulation under a mistake of fact. See Maharg Decl., ¶ 3.
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1 First, as Real Parties concede in the face of Baykeeper’s challenge to the $459 charge for a first
2 appearance, Real Parties are submitting a claim for a fee in related litigation.2 Opp. at 11:2-13. They try
3 to suggest that this notice was necessary to their defense in the present case, but, in fact, it was part of
4 another case. Real Parties had an opportunity to recover those costs upon dismissal of the second action
5 (Code of Civ. Proc. § 1032(a)(4), (b)), and they failed to do so. They cannot now attempt to recover that
6 cost here. Therefore, this Court should strike this cost demand in Item 1.
7 Second, despite Real Parties’ convoluted efforts to read the costs statute to require
8 reimbursement of their costs for transcripts not ordered by the court, the statute expressly prohibits such
9 costs. Code of Civ. Proc. § 1033.5(b)(5). The Glass case, on which they seek to rely, only supports
10 Baykeeper’s position. The court in Glass acknowledged that the general rule is that costs can only be
11 claimed for a court-ordered transcript. Glass only permitted such costs because “the court equated the
12 writing up of the prior testimony with the taking of depositions, and on that ground, it distinguished the
13 rule, found in the authorities cited above, that there can be no recovery for the costs of a daily transcript
14 unless ordered by the court.” (Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 440.) Whether
15 Baykeeper would have ordered a transcript if Real Parties had not is irrelevant to the question of
16 whether Real Parties can demand payment now from Baykeeper. Rule 2.956(c), on which Real Parties
17 also rely, does not provide any additional right; it merely notes that transcript costs “may” be
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Real Parties refer to a second, related action filed by Baykeeper as harassing and assert that Baykeeper
21 acknowledged that it was meritless. Opp. at 18:27; Declaration of Christian L. Marsh in Support of Real
Party in Interest’s Opposition to Baykeeper’s Motion to Strike or in the Alternative to Tax
22 Memorandum of Costs, ¶ 8. Baykeeper filed the second lawsuit, not as a harassment, but to preserve its
right to litigate its claims that the public trust analysis was inadequate. Maharg Decl., ¶¶ 4-5. At the time
23 Baykeeper filed the second action, Baykeeper did not know whether the Commission and Real Parties
would argue, or the Court would refuse to hear, the claims raised in its objection to the return to the
24 peremptory writ of mandate, and Baykeeper was facing an impending statute of limitations. Id. at ¶ 5.
25 Thus, Baykeeper sought to preserve those claims. The parties quickly agreed to stay the second case
until the resolution of the present case to save resources. Id. at ¶ 6, Ex. A. The fact that Baykeeper
26 agreed to stay litigation in the second case until a judgment issued in the present case indicates that it
was not seeking to harass Respondent or Real Parties. If it was, Baykeeper would have forced
27 Respondents to file a demurrer or otherwise litigate the case. Id. at ¶ 7.
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1 recoverable—“as provided by law.” The law here does not so provide. Item 9 of the costs memorandum
2 should be stricken.
3 Third, the time sheets provided by the Marsh Dec., Ex. J, in support of the Real Parties’
4 Opposition clarify that the work performed in preparing the Supplemental Administrative Record (SAR)
5 occurred before the SAR was lodged or before the excerpts were lodged. However, one outlier is dated
6 November 11, 2016, incurred by Jessica Wise to “organize and compile finalized supplemental
7 administrative record for production and filing” for 0.8 hours and $156. Respondent filed its Notice of
8 Certification of Lodging of Supplemental Administrative Record on November 10, 2016, in which they
9 stated that “Respondent will lodge the Supplemental Record concurrently with this Notice of
10 Certification and Lodging.” Because the SAR was lodged on November 10, 2016, this cost demand in
11 Item 16 should be stricken.
12 C. Real Parties Seek Reimbursement for Unreasonable Costs Incurred When Preparing the
Supplemental Administrative Record
13 The most important overreaching by Real Parties is its attempt to recover more than $18,000 for
14 the time spent preparing the SAR. Real Parties spill much ink contesting nonexistent issues. They
15 suggest that Baykeeper is contesting who provided the labor, for example. (Opp. at 15:1-24.) In contrast,
16 Baykeeper’s main and simple point about the SAR preparation is that staff—of whatever variety,
17 whether attorney, paralegal, or vendor—spent way too much time on the SAR when compared to the
18 per-page rates that courts have considered reasonable and when taking into account the restricted scope
19 of this project.
20 Real Parties provide no support for the idea that more than $4 a page—and again, just for labor
21 (some decisions incorporate the printing and binding costs as well when considered reasonable per-page
22 record costs)—is reasonable. They attack a leading case, Wagner, as being too old. They also
23 misrepresent the analysis in Wagner—contrary to their contentions, Wagner directly addressed the
24 reasonableness of per-page charges and suggested that around $2 a page was reasonable. (Wagner
25 Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal. App. 4th 765, 775-76, as modified on denial of
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1 reh’g (Jan. 5, 2007); see also id. at 775 (noting that the higher the rate per page charged, the more detail
2 the party seeking costs must provide to justify it).)
3 More recent cases only confirm the unreasonableness of Real Parties’ demands. For example, in
4 2010, an appellate court affirmed a trial court’s award of a bit more than $1 per page in a complex
5 environmental case. (California Oak Found. v. Regents of Univ. of California (2010) 188 Cal. App. 4th
6 227, 295, as modified (“Ultimately, University personnel familiar with the [project] retrieved, reviewed,
7 organized, and indexed over 40,000 pages of documents—nearly 1,400 documents in 11 boxes—for the
8 administrative record.”); id. at 293, 295 (affirming the award of $46,563 for the labor); id. at 684 (citing
9 River Valley Pres. Project v. Metro. Transit Dev. Bd. (1995) 37 Cal. App. 4th 154, 180, in which the
10 court awarded a bit more than $10,000 for a record containing nearly 4,000 pages covering 10 years—or
11 about $2 a page).) Similarly, the Fourth District in 2014 affirmed an award of less than $2 a page for
12 record preparation: $30,435 in labor costs for preparing an 18,000-page record. (Otay Ranch, L.P. v.
13 Cty. of San Diego (2014) 230 Cal. App. 4th 60, 65-66.)
14 In preparing the supplemental record here, as Baykeeper’s P&A discussed further, Real Parties
15 rely primarily on electronic records. That should make their process even more efficient, and makes
16 their costs claim more unreasonable. And here, Real Parties were only preparing a supplemental record.
17 They make the puzzling assertion that doing so “necessitated culling through multiple records from an
18 intensive, four-year permitting and regulatory process from October 2012 (the SLC's original approval)
19 and June 2016 (re-approval).” (Opp. at 18:1-6). This statement illogically asserts that the Commission
20 began its reapproval process immediately after it approved the leases in 2012, while it was litigating the
21 first trial-court procedure and after the trial court initially upheld the leases. In fact, it only makes sense
22 that the Commission would begin the public trust analysis and re-approval process after the Baykeeper I
23 opinion issued on November 18, 2015, in which the Court ordered the Commission to prepare a public
24 trust analysis. In fact, the reapproval process could only have been about 7 months (from the issuance of
25 Baykeeper I and the reapproval on June 28, 2016). To prepare the SAR, Real Parties only had to review
26 records relied on during this limited period of time, which also did not include any formal public
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1 comment period or response to comments. If they did in fact cull through four years of records, that
2 would have been an extremely unreasonable use of time, which they cannot seek compensation for here.
3 Moreover, the scope of Baykeeper’s request for fees for its work on the Baykeeper II appeal has
4 no relation to the reasonableness of Real Parties’ costs claims. (Opp. at 10:11-14.) Neither does the
5 amount of time Baykeeper spent on the case in relation to the amount of time Real Parties spent on
6 preparing the SAR. (Opp. at 18:4-6.)
7 CONCLUSION
8 Baykeeper respectfully requests that this Court strike the costs memorandum in its entirety.
9 If the Court does not, it should only award half of the amount requested for the preparation of the
10 supplemental administrative record and should strike the items identified as unauthorized under
11 California’s cost statutes, in addition to making the reductions requested by Baykeeper in its opening
12 motion.
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15 DATED: August 7, 2019 Respectfully submitted,
16 THE MEADE FIRM P.C.
17 /s/ Anne Decker
18 Anne Decker
19 Attorneys for Petitioner
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21 The Meade Firm p.c.
22 12 Funston Ave., Suite A
23 San Francisco, CA 94129
24 (415) 724-9600
25 State Bar No. 268435
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2 PROOF OF SERVICE
3 I am a resident of the State of California, over the age of eighteen years, and not a party to the
action. My business address is 1736 Franklin Street, Suite 800, Oakland, CA 94612.
4
On August 7, 2019, I served the following document(s), Reply in Support of Petitioner’s
5 Motion to Strike or in the Alternative to Tax Real Parties in Interest’s Memorandum of Costs;
6 Attached Documents: Declaration of Erica A. Maharg in Support of Reply, on the following parties
or attorney for parties, as shown below:
7
Joel Jacobs
8 Deputy Attorney General
Office of the Attorney General
9 1515 Clay Street, 20th Floor
10 Oakland, CA 94612-0550
Joel.Jacobs@doj.ca.gov
11
Christian L. Marsh
12 Arielle Harris
Downey Brand LLP
13
455 Market Street, Suite 1500
14 San Francisco, CA 94105
cmarsh@downeybrand.com
15 aharris@downeybrand.com
16 X BY EMAIL: Per agreement between the parties, I caused each document to be sent by email
17 to the following persons or their representative listed above.
18 ¡ BY FACSIMILE: I caused each such document to be sent by facsimile to the
following persons or their representative listed above.
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¡ BY FIRST CLASS MAIL: I am readily familiar with this business’s practice of collecting
20 and processing correspondence for mailing with the U.S. Postal Service. On the date written above,
21 following ordinary business practices, I delivered to the U.S. Postal Service the attached document in a
sealed envelope, with postage fully prepaid, addressed as shown above.
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I declare under the penalty of perjury that the foregoing is true and correct and that this proof of
23 service was executed at Oakland, California on August 7, 2019.
24
25 _____________________
26
Erica A. Maharg
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Preview
1 Erica A. Maharg (State Bar No. 279396) 2 M. Benjamin Eichenberg (State Bar No. 270893) ELECTRONICALLY Nicole C. Sasaki (State Bar No. 298736) F I L E D 3 SAN FRANCISCO BAYKEEPER, INC. Superior Court of California, County of San Francisco 1736 Franklin Street, Suite 800 4 Oakland, California 94612 08/07/2019 Clerk of the Court Telephone: (510) 735-9700 5 Facsimile: (510) 735-9160 BY: CAROL BALISTRERI Deputy Clerk 6 Email: erica@baykeeper.org Email: ben@baykeeper.org 7 Email: nicole@baykeeper.org 8 Tyler Meade (State Bar No. 160838) Anne Decker (State Bar No. 268435) 9 Sam Ferguson (State Bar No. 270957) 10 Seena Forouzan (State Bar No. 317777) THE MEADE FIRM p.c. 11 12 Funston Ave., Suite A San Francisco, CA 94129 12 Telephone: (415) 724-9600 Email: tyler@meadefirm.com 13 Email: annie@meadefirm.com 14 Email: sam@meadefirm.com Email: seena@meadefirm.com 15 Attorneys for Petitioner 16 17 SUPERIOR COURT OF THE STATE OF CALIFORNIA 18 COUNTY OF SAN FRANCISCO 19 20 SAN FRANCISCO BAYKEEPER, INC., Case No. CPF-12-512620 21 Date Filed: November 16, 2012 Petitioner, 22 Reply in Support of Petitioner’s Motion vs. to Strike or Tax Costs; Attached 23 Documents: Declaration of Erica A. CALIFORNIA STATE LANDS Maharg in Support of Reply 24 COMMISSION, 25 Date: August 14, 2019 Respondents, Time: 10:00 a.m. 26 Dept.: 613 HANSON MARINE OPERATIONS, INC.; Judge: Honorable Teri L. Jackson 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 1 HANSON AGGREGATES, LLC; JERICO Location: 400 McAllister St., San 1 PRODUCTS, INC., MORRIS TUG & Francisco, CA 94102 2 BARGE, INC.; and SUISUN ASSOCIATES, 3 Real Parties in Interest. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 2 1 I. INTRODUCTION 2 Real Parties in Interest’s Opposition to Baykeeper’s Motion to Strike or in the Alternative to 3 Tax Memorandum of Costs (“Opposition”) fails to evade the conclusion that they waived the right to 4 seek trial-level costs in 2017. The appellate court’s remittitur and the parties’ stipulation two years after 5 the relevant deadline do nothing to resurrect any claim Real Parties might have had to seek trial-level 6 costs. This Court must strike the costs memorandum in its entirety. No statutory basis exists for 7 considering it, and any other ruling would constitute a reversible abuse of discretion. (Sanabria v. 8 Embrey (2001) 92 Cal. App. 4th 422, 426.) 9 If somehow this Court nonetheless finds that Real Parties did not waive their right to seek trial- 10 level costs, it should reject Real Parties’ efforts to overreach both in type of costs claimed and in 11 amount. Whether the costs were actually incurred, which the submissions provided with the Opposition 12 might adequately demonstrate, is irrelevant to whether the amount claimed was reasonable or necessary. 13 If the costs memorandum is not stricken in its entirety as clearly untimely, certain items should be 14 stricken and others substantially reduced for the reasons detailed in this Reply as well as in Baykeeper’s 15 July 3, 2019 Memorandum of Points and Authorities in Support of Petitioner’s Motion to Strike or in the 16 Alternative to Tax Real Parties in Interest’s Memorandum of Costs (“P&A”). 17 II. ARGUMENT 18 A. Real Parties Fail To Cite a Single Relevant Authority To Support Their Position That They Did Not Waive Their Right to Seek Costs 19 In the Opposition, Real Parties essentially seem to concede the issue. They fail to provide any 20 real authority to support their argument that they did not waive costs. They suggest two bases for why 21 they can seek these costs: first, that the remittitur from the Court of Appeals was relevant to the finality 22 of this Court’s trial order for purposes of seeking trial-level costs, and, second, that the parties’ 23 stipulation in 2019 effectively turned back time to 2017 and thereby extended the deadline for filing a 24 costs memorandum. Neither argument is persuasive. 25 1. The Entry of Judgment Was Final for Purposes of the Costs Memorandum 26 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 3 1 In the P&A, Baykeeper has shown that the entry of and service of this Court’s order in April 2 2017 started the 15-day clock on filing a costs memorandum. See P&A at 9:19-11:7. Additional 3 authorities confirm that point, despite Real Parties’ unsupported position to the contrary. First, 4 California law defines a “judgment” in a special proceeding, such as a writ of mandate, as the “final 5 determination of the rights of the parties therein.” (Code of Civ. Proc. § 577.) This Court’s order 6 granting the motion to discharge the peremptory writ was such a final determination. (See, e.g., Conasul 7 v. City of San Diego (1992) 6 Cal. App. 4th 1781, 1792 n.6 (“The order denying the petition for writ of 8 mandate and overruling the City’s demurrer was a final determination of the entire action. As such, we 9 construe the order to be an appealable final judgment.”).) The fact that Baykeeper proceeded to appeal, 10 and that the Court of Appeal ruled on the appeal, confirms that the Court’s order granting to motion to 11 discharge was final. (See also, e.g., Turner v. Los Angeles Realty Bd., Inc. (1965) 233 Cal. App. 2d 755, 12 758 (“With certain statutory exceptions not herein involved, it is the fundamental rule in California, as in 13 most jurisdictions, that no order or judgment may be appealed from unless it finally disposes of the case 14 in the trial court.”).) The language in the April 5, 2019 remittitur issued pursuant to Code of Civ. Proc. § 15 912 is irrelevant. 16 Thus, the clock started ticking with the service of this Court’s order on April 24, 2017, and 17 failure to file the costs memorandum or to seek any extension at the time constitutes waiver, as 18 California courts have repeatedly held. See P&A at 9:19-11:7. 19 2. The Parties’ 2019 Stipulation Did Not Start the Clock Again 20 The Parties’ Stipulation in 2019 did not restart the clock. The deadline for any extension under 21 Rule 3.1700(b)(3) passed more than two years ago. Parties cannot stipulate to anything that contradicts 22 the law. A court therefore can disregard a stipulation “if it is ‘illegal’ or ‘contrary to public policy.’” 23 (Estate of Howe, 88 Cal.App.2d 454, 458, 199 P.2d 59; see also 1 Witkin, Cal. Procedure (2d ed.) 24 Attorneys, s 123; Estate of Burson (1975) 51 Cal. App. 3d 300, 306.). Reflecting a related principle, 25 courts can disregard stipulations entered into through inadvertence or mistake of fact. (Baker v. Ramirez 26 (1987) 190 Cal. App. 3d 1123, 1135.) 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 4 1 Baykeeper was not conceding by entering into the stipulation that Real Parties had a right to 2 trial-level costs, any more than Real Parties were conceding that Baykeeper had a right to seek 3 attorneys’ fees. The stipulation allowed time to research the relative strength and weaknesses of the 4 parties’ rights to fees and costs. Declaration of Erica A. Maharg in Support of Reply in Support of 5 Petitioner’s Motion to Strike or Tax Costs (“Maharg Decl.”), ¶ 3. Once Baykeeper researched the 6 question, it was clear that Real Parties had waived their right to trial-level costs entirely. Id. 7 Real Parties assert that “[t]he stipulation did not specify that it only applied to appellate costs, 8 nor that it applied only to Baykeeper’s costs.” Opp. at 9:3-4 (emphasis added). To the contrary, the only 9 cost provisions cited are relevant to appellate-level costs. See Stipulation to Extend Deadline to File 10 Motion for Attorneys’ Fees and Memorandum of Costs (citing California Rules of Court 3.1702(c) and 11 8.278). But Baykeeper does not rest its motion to strike costs on that fact. At the time, the parties entered 12 the stipulation, Real Parties had waived their right to seek trial-level costs. A stipulation cannot override 13 the statutory deadline to seek costs, even one that properly identified the trial-level costs provisions.1 14 In summary, parties have a certain amount of leeway under the statutory scheme when seeking 15 costs—they can stipulate or seek a short court-ordered extension before the 15-day deadline has expired, 16 Rule 3.1700(b)(3), and they can negotiate the method of payment of costs, Code of Civ. Proc. § 1032(c), 17 but they still must comply with the Rules. (See, e.g., Jones v. Union Bank of California (2005) 127 Cal. 18 App. 4th 542, 551, as modified on denial of reh’g (Mar. 11, 2005).) The costs memorandum must be 19 stricken in its entirety. 20 B. Real Parties Claim Costs for Items Outside This Litigation or Not Permitted by the Costs Provisions 21 Real Parties seek to recoup payments they made in different litigation and payments for expenses 22 not permitted under the California rules. 23 24 1 Moreover, courts can disregard a stipulation entered into through inadvertence or mistake of fact. 25 (Baker v. Ramirez (1987) 190 Cal. App. 3d 1123, 1135.) If this Court does find that the stipulation renewed Real Parties’ opportunity to seek costs, the Court should nonetheless disregard the stipulation 26 since Baykeeper entered into the stipulation under a mistake of fact. See Maharg Decl., ¶ 3. 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 5 1 First, as Real Parties concede in the face of Baykeeper’s challenge to the $459 charge for a first 2 appearance, Real Parties are submitting a claim for a fee in related litigation.2 Opp. at 11:2-13. They try 3 to suggest that this notice was necessary to their defense in the present case, but, in fact, it was part of 4 another case. Real Parties had an opportunity to recover those costs upon dismissal of the second action 5 (Code of Civ. Proc. § 1032(a)(4), (b)), and they failed to do so. They cannot now attempt to recover that 6 cost here. Therefore, this Court should strike this cost demand in Item 1. 7 Second, despite Real Parties’ convoluted efforts to read the costs statute to require 8 reimbursement of their costs for transcripts not ordered by the court, the statute expressly prohibits such 9 costs. Code of Civ. Proc. § 1033.5(b)(5). The Glass case, on which they seek to rely, only supports 10 Baykeeper’s position. The court in Glass acknowledged that the general rule is that costs can only be 11 claimed for a court-ordered transcript. Glass only permitted such costs because “the court equated the 12 writing up of the prior testimony with the taking of depositions, and on that ground, it distinguished the 13 rule, found in the authorities cited above, that there can be no recovery for the costs of a daily transcript 14 unless ordered by the court.” (Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 440.) Whether 15 Baykeeper would have ordered a transcript if Real Parties had not is irrelevant to the question of 16 whether Real Parties can demand payment now from Baykeeper. Rule 2.956(c), on which Real Parties 17 also rely, does not provide any additional right; it merely notes that transcript costs “may” be 18 19 20 2 Real Parties refer to a second, related action filed by Baykeeper as harassing and assert that Baykeeper 21 acknowledged that it was meritless. Opp. at 18:27; Declaration of Christian L. Marsh in Support of Real Party in Interest’s Opposition to Baykeeper’s Motion to Strike or in the Alternative to Tax 22 Memorandum of Costs, ¶ 8. Baykeeper filed the second lawsuit, not as a harassment, but to preserve its right to litigate its claims that the public trust analysis was inadequate. Maharg Decl., ¶¶ 4-5. At the time 23 Baykeeper filed the second action, Baykeeper did not know whether the Commission and Real Parties would argue, or the Court would refuse to hear, the claims raised in its objection to the return to the 24 peremptory writ of mandate, and Baykeeper was facing an impending statute of limitations. Id. at ¶ 5. 25 Thus, Baykeeper sought to preserve those claims. The parties quickly agreed to stay the second case until the resolution of the present case to save resources. Id. at ¶ 6, Ex. A. The fact that Baykeeper 26 agreed to stay litigation in the second case until a judgment issued in the present case indicates that it was not seeking to harass Respondent or Real Parties. If it was, Baykeeper would have forced 27 Respondents to file a demurrer or otherwise litigate the case. Id. at ¶ 7. 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 6 1 recoverable—“as provided by law.” The law here does not so provide. Item 9 of the costs memorandum 2 should be stricken. 3 Third, the time sheets provided by the Marsh Dec., Ex. J, in support of the Real Parties’ 4 Opposition clarify that the work performed in preparing the Supplemental Administrative Record (SAR) 5 occurred before the SAR was lodged or before the excerpts were lodged. However, one outlier is dated 6 November 11, 2016, incurred by Jessica Wise to “organize and compile finalized supplemental 7 administrative record for production and filing” for 0.8 hours and $156. Respondent filed its Notice of 8 Certification of Lodging of Supplemental Administrative Record on November 10, 2016, in which they 9 stated that “Respondent will lodge the Supplemental Record concurrently with this Notice of 10 Certification and Lodging.” Because the SAR was lodged on November 10, 2016, this cost demand in 11 Item 16 should be stricken. 12 C. Real Parties Seek Reimbursement for Unreasonable Costs Incurred When Preparing the Supplemental Administrative Record 13 The most important overreaching by Real Parties is its attempt to recover more than $18,000 for 14 the time spent preparing the SAR. Real Parties spill much ink contesting nonexistent issues. They 15 suggest that Baykeeper is contesting who provided the labor, for example. (Opp. at 15:1-24.) In contrast, 16 Baykeeper’s main and simple point about the SAR preparation is that staff—of whatever variety, 17 whether attorney, paralegal, or vendor—spent way too much time on the SAR when compared to the 18 per-page rates that courts have considered reasonable and when taking into account the restricted scope 19 of this project. 20 Real Parties provide no support for the idea that more than $4 a page—and again, just for labor 21 (some decisions incorporate the printing and binding costs as well when considered reasonable per-page 22 record costs)—is reasonable. They attack a leading case, Wagner, as being too old. They also 23 misrepresent the analysis in Wagner—contrary to their contentions, Wagner directly addressed the 24 reasonableness of per-page charges and suggested that around $2 a page was reasonable. (Wagner 25 Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal. App. 4th 765, 775-76, as modified on denial of 26 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 7 1 reh’g (Jan. 5, 2007); see also id. at 775 (noting that the higher the rate per page charged, the more detail 2 the party seeking costs must provide to justify it).) 3 More recent cases only confirm the unreasonableness of Real Parties’ demands. For example, in 4 2010, an appellate court affirmed a trial court’s award of a bit more than $1 per page in a complex 5 environmental case. (California Oak Found. v. Regents of Univ. of California (2010) 188 Cal. App. 4th 6 227, 295, as modified (“Ultimately, University personnel familiar with the [project] retrieved, reviewed, 7 organized, and indexed over 40,000 pages of documents—nearly 1,400 documents in 11 boxes—for the 8 administrative record.”); id. at 293, 295 (affirming the award of $46,563 for the labor); id. at 684 (citing 9 River Valley Pres. Project v. Metro. Transit Dev. Bd. (1995) 37 Cal. App. 4th 154, 180, in which the 10 court awarded a bit more than $10,000 for a record containing nearly 4,000 pages covering 10 years—or 11 about $2 a page).) Similarly, the Fourth District in 2014 affirmed an award of less than $2 a page for 12 record preparation: $30,435 in labor costs for preparing an 18,000-page record. (Otay Ranch, L.P. v. 13 Cty. of San Diego (2014) 230 Cal. App. 4th 60, 65-66.) 14 In preparing the supplemental record here, as Baykeeper’s P&A discussed further, Real Parties 15 rely primarily on electronic records. That should make their process even more efficient, and makes 16 their costs claim more unreasonable. And here, Real Parties were only preparing a supplemental record. 17 They make the puzzling assertion that doing so “necessitated culling through multiple records from an 18 intensive, four-year permitting and regulatory process from October 2012 (the SLC's original approval) 19 and June 2016 (re-approval).” (Opp. at 18:1-6). This statement illogically asserts that the Commission 20 began its reapproval process immediately after it approved the leases in 2012, while it was litigating the 21 first trial-court procedure and after the trial court initially upheld the leases. In fact, it only makes sense 22 that the Commission would begin the public trust analysis and re-approval process after the Baykeeper I 23 opinion issued on November 18, 2015, in which the Court ordered the Commission to prepare a public 24 trust analysis. In fact, the reapproval process could only have been about 7 months (from the issuance of 25 Baykeeper I and the reapproval on June 28, 2016). To prepare the SAR, Real Parties only had to review 26 records relied on during this limited period of time, which also did not include any formal public 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 8 1 comment period or response to comments. If they did in fact cull through four years of records, that 2 would have been an extremely unreasonable use of time, which they cannot seek compensation for here. 3 Moreover, the scope of Baykeeper’s request for fees for its work on the Baykeeper II appeal has 4 no relation to the reasonableness of Real Parties’ costs claims. (Opp. at 10:11-14.) Neither does the 5 amount of time Baykeeper spent on the case in relation to the amount of time Real Parties spent on 6 preparing the SAR. (Opp. at 18:4-6.) 7 CONCLUSION 8 Baykeeper respectfully requests that this Court strike the costs memorandum in its entirety. 9 If the Court does not, it should only award half of the amount requested for the preparation of the 10 supplemental administrative record and should strike the items identified as unauthorized under 11 California’s cost statutes, in addition to making the reductions requested by Baykeeper in its opening 12 motion. 13 14 15 DATED: August 7, 2019 Respectfully submitted, 16 THE MEADE FIRM P.C. 17 /s/ Anne Decker 18 Anne Decker 19 Attorneys for Petitioner 20 21 The Meade Firm p.c. 22 12 Funston Ave., Suite A 23 San Francisco, CA 94129 24 (415) 724-9600 25 State Bar No. 268435 26 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 9 1 2 PROOF OF SERVICE 3 I am a resident of the State of California, over the age of eighteen years, and not a party to the action. My business address is 1736 Franklin Street, Suite 800, Oakland, CA 94612. 4 On August 7, 2019, I served the following document(s), Reply in Support of Petitioner’s 5 Motion to Strike or in the Alternative to Tax Real Parties in Interest’s Memorandum of Costs; 6 Attached Documents: Declaration of Erica A. Maharg in Support of Reply, on the following parties or attorney for parties, as shown below: 7 Joel Jacobs 8 Deputy Attorney General Office of the Attorney General 9 1515 Clay Street, 20th Floor 10 Oakland, CA 94612-0550 Joel.Jacobs@doj.ca.gov 11 Christian L. Marsh 12 Arielle Harris Downey Brand LLP 13 455 Market Street, Suite 1500 14 San Francisco, CA 94105 cmarsh@downeybrand.com 15 aharris@downeybrand.com 16 X BY EMAIL: Per agreement between the parties, I caused each document to be sent by email 17 to the following persons or their representative listed above. 18 ¡ BY FACSIMILE: I caused each such document to be sent by facsimile to the following persons or their representative listed above. 19 ¡ BY FIRST CLASS MAIL: I am readily familiar with this business’s practice of collecting 20 and processing correspondence for mailing with the U.S. Postal Service. On the date written above, 21 following ordinary business practices, I delivered to the U.S. Postal Service the attached document in a sealed envelope, with postage fully prepaid, addressed as shown above. 22 I declare under the penalty of perjury that the foregoing is true and correct and that this proof of 23 service was executed at Oakland, California on August 7, 2019. 24 25 _____________________ 26 Erica A. Maharg 27 28 REPLY ISO BAYKEEPER’S COSTS MOTION CASE NO. CPF-12-512620 10