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Coalition for Adequate Review v. City and County of San Francisco

California Court of Appeals, First District, First Division

September 15, 2014

COALITION FOR ADEQUATE REVIEW et al., Plaintiffs and Respondents,
v.
CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.

[As Modification on October 15, 2014]

Trial Court: San Francisco City & County Superior Court No. CPF-08-508038 Honorable Donald J. Sullivan Trial Judge

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COUNSEL

Dennis J. Herrera, City Attorney, Kristen A. Jensen, Susan Cleveland-Knowles and Andrea Ruiz-Esquide, Deputy City Attorneys for Defendant and Appellant.

No appearance for Plaintiff and Respondent Alliance for Comprehensive Planning.

Mary Miles; Law Office of Alexancer Henson and Alexander T. Henson for Plaintiff and Respondent Coalition for Adequate Review.

OPINION

Banke, J.

I. Introduction

The City and County of San Francisco (City) prevailed in this California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.)[1] writ proceeding brought by the Coalition for Adequate Review and Alliance for Comprehensive Planning (collectively, petitioners). After securing judgment, the City filed a memorandum of costs totaling $64, 144, largely for costs incurred in preparing a supplemental record of the proceedings. Petitioners filed a motion to tax. The trial court granted the motion and denied all costs. The court’s reasoning was two-fold: First, it relied on the fact petitioners had elected to prepare the record, themselves, as allowed by CEQA’s record preparation statute (§ 21167.6, subd. (b)(2)). Second, it feared sizeable cost awards would have a chilling effect on lawsuits challenging important public projects. Neither rationale is a legally permissible basis for denying record preparation costs to the City. We therefore reverse in part and remand for further proceedings.

II. Factual and Procedural Background

In our prior opinion affirming the denial of petitioners’ writ petition on the merits (Coalition for Adequate Review v. City and County of San Francisco (June 25, 2013, A131487) [nonpub. opn.]), we discussed at length the land use plans, rezoning, and projects around Octavia and Market streets at issue

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in this case. We need set forth here only the facts relevant to the City’s appeal from the order granting petitioners’ motion to tax costs.

Initial Record Preparation

Petitioners chose to prepare the record of proceedings, themselves, as permitted by CEQA’s record preparation statute, specifically, section 21167.6, subdivision (b)(2). The City maintains it thereupon made available some 26, 000 pages of material to facilitate petitioners’ preparation of the record. Petitioners contend the City, in fact, obstructed and delayed access to these documents and made the process of copying unduly cumbersome and expensive. Petitioners also contend that at 4 p.m. the day before they were, by agreement, to present the record to the City for its review and certification, the City suddenly notified them of an additional 3, 000 pages of material and a CD of unknown volume, and claimed it was going to prepare a supplemental record containing these items. The City did not produce this material to petitioners until a few weeks later. Nevertheless, on August 28, 2008, the agreed-upon date, petitioners presented the City with a 30-volume record, totaling 8, 306 pages in length.

Two weeks later, on September 12, 2008, the City certified the record petitioners had prepared, but only in part, stating it was incomplete. It appeared to the City that petitioners had omitted documents statutorily required to be in the record under section 21167.6, subdivision (e), and which the City had, at least at some point, made available to petitioners. The City therefore notified petitioners it reserved the right to seek inclusion of any of the additional 21, 000-plus pages of material it had produced to petitioners which were not already in the record.

The City then made several attempts to add materials to the record—both through ex parte applications and by negotiations with petitioners. During negotiations, the City proposed augmenting the record when it filed its opposition to the writ petition in order to avoid including unnecessary materials.

As part of a November 19, 2008, case management statement, the City attached an index of its proposed additions to the record, totaling 4, 809 pages in 12 volumes. A month later, on December 12, 2008, the City formally moved to supplement the record of the proceedings with these 12 volumes.

Petitioners opposed the motion. They argued they were in control of the record, and the City had no right to make additions. They also asserted the City sought to add irrelevant and duplicative materials, and the proposed supplement was a ploy to raise costs. Petitioners denied having excluded from the record any materials that supported the City’s approval of the project.

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The City disputed petitioners’ contentions about the proposed supplemental record, except for 10 documents which it acknowledged were duplicates or near duplicates of materials already in the record prepared by petitioners. The City also maintained it timely produced most of the required documents, except for certain studies cited in the EIR (environmental impact report), which it made available to petitioners after learning of the omission.

On May 12, 2009, the trial court (Judge Feinstein) granted the City’s motion to supplement the record, finding petitioners had omitted materials statutorily required to be in the record under section 21167.6, subdivision (e). It disallowed, however, the 10 concededly duplicative documents (approximately 250 pages of the 4, 809-page proposed supplement). The court also expressly rejected petitioners’ assertion that the City’s efforts to supplement the record violated its statutory duty to control record preparation costs, set forth in section 21167.6, subdivision (f). The court noted in this regard petitioners had rejected the City’s proposal to file a supplemental record when it filed its opposition to the writ petition and, instead, had insisted the record be fixed before briefing on the merits. The court also ruled “[w]ithout prejudice to the City’s ability to seek cost recovery at the conclusion of this litigation, as appropriate, Petitioners shall pay to the City the reproduction costs associated with Petitioners’ copy and the court’s copy of the City’s Supplement.” Petitioners moved for rehearing, arguing the immediate order to pay for reproduction costs was improper. In August 2009, the court denied rehearing, concluding the issue of interim reproduction costs had been briefed and properly determined.[2]

Document Requests

In addition to the supplemental record dispute, the parties also sparred over whether certain document requests petitioners made at the outset of the litigation were overbroad and burdensome. Petitioners, for instance, requested production of “[a]ll files relating to all projects, including all proposed developments, public works and building projects and building permits of any kind that are either within the pipeline or not within the pipeline but within the Market-Octavia project area....” (Emphasis omitted.) The City viewed these requests as creating busywork unrelated to the writ petition. Petitioners viewed them as essential to their writ petition, ...


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