Wagner Farms, Inc. v. Modesto Irr. Dist.

• Decision Date: 06 December 2006
• Docket Number: No. F049966.,F049966.
• Citation: 145 Cal.App.4th 765,52 Cal.Rptr.3d 683
• Parties: WAGNER FARMS, INC., et al, Plaintiffs and Appellants, v. MODESTO IRRIGATION DISTRICT, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

52 Cal.Rptr.3d 683

145 Cal.App.4th 765

WAGNER FARMS, INC., et al, Plaintiffs and Appellants, v. MODESTO IRRIGATION DISTRICT, Defendant and Respondent.

No. F049966.

Court of Appeal, Fifth District.

December 6, 2006.

As Modified on Denial of Rehearing January 5, 2007.

Gilmore, Wood, Vinnard & Magness and David M. Gilmore, Fresno, for Plaintiffs and Appellants.

Joy A. Warren, Joel S. Moskowitz, Modesto; Downey Brand and Jennifer L. Harder, Sacramento, for Defendant and Respondent.

OPINION

DAWSON, J.

Plaintiff farmers appeal an award of costs to defendant Modesto Irrigation District (MID), which the superior court made after denying plaintiffs' petition for a writ of mandate to enforce the California Environmental Quality Act (CEQA).¹ Plaintiffs contend the superior court erred in awarding MID $33,422.24 for preparing the 4,107-page record of proceedings (ROP)² because (1) MID impermissibly delegated the preparation of the ROP to consultants, and (2) MID did not submit adequate information from which to determine whether the amounts claimed as costs were necessary and reasonable.

The ROP prepared by MID contains documents that were created after the project was approved. These postapproval documents do not reflect the proceedings that actually occurred, and they are not properly part of the ROP. (El Monro Community Assn. v. California Dept. of Parks & Recreation (2004) 122 Cal.App.4th 1341, 1359, 19 Cal.Rptr.3d 445.) Thus, the time spent preparing them was not a necessary and reasonable cost of preparing the ROP. The minimal factual information submitted by MID was insufficient to justify the unusually high per page cost for preparing the record. Further, the information submitted did not allow the superior court to separate the time MID and its consultants reasonably spent assembling, organizing, and indexing documents that reflected the proceedings actually held from the time they spent with the ROP that furthered their own interests. Accordingly, the award of costs is reversed and the matter remanded to the superior court for further proceedings.

FACTS AND PROCEEDINGS³

MID is a California irrigation district organized under the Irrigation District Law, Water Code section 20500 et seq. MID operates facilities for the generation, transmission, and distribution of electric power and provides electric service within Alameda, Stanislaus, San Joaquin, and Tuolumne Counties.

Plaintiff Wagner Farms, Inc., is a California corporation. Plaintiffs Nita Wagner and Hans Wagner are individuals who own orchards and reside in Stanislaus County.

The lawsuit underlying this appeal arose out of MID's proposal to construct high voltage electricity transmission lines from a switching station near Westley to MID's substation in Rosemore and its preparation of an environmental impact report (EIR) covering the proposed project. A segment of the route MID selected for the proposed transmission lines affects lands on which orchards owned by plaintiffs are located.

In January 2003, InSite Environmental, a firm with an office in Stockton, California, completed a 161-page environmental feasibility study (Feasibility Study) for MID that analyzed possible route segments for the proposed transmission line. MID used the Feasibility Study to select a preferred corridor for the transmission line.

On June 26, 2003, MID filed a notice of preparation that stated a preferred corridor would be analyzed in an EIR, identified the preferred corridor, and showed that corridor and three alternative corridors on an attached map. A draft EIR then "was developed by ECI,⁴ MID's engineering consultant for this project, its subcontractor, Robert Scott Environmental Services, and MID staff."

The board of directors of MID approved the draft EIR, and it was distributed on July 14, 2004. The notice of availability for the draft EIR stated that a copy of the draft EIR had been placed at the Stanislaus County Libraries in Modesto, Newman, and Patterson. The notice also stated that a hard copy of the draft EIR could be obtained by mailing $45 to Electrical Consultants, Inc's address in Billings, Montana.

The final EIR and a newsletter announcing its availability were distributed on October 27, 2004. The board of directors of MID held a public meeting on November 16, 2004, at which it considered the final EIR, certified it, adopted findings of fact regarding the significant environmental effects and project alternatives, and approved the project.

On December 22, 2004, plaintiffs filed a petition for writ of mandate challenging MID's approval of the project, asserting various violations of CEQA, and requesting declaratory and injunctive relief.

On January 24, 2005, plaintiffs filed a request that MID prepare the ROP.

On April 11, 2005, MID served counsel for plaintiffs with a notice that stated MID's "administrative record regarding the adoption of the Westley-Rosemore 230 kV Transmission Project, Volumes 1 through 18, has been certified and lodged with the court."⁵

By letter dated April 13, 2005, MID provided counsel for plaintiffs with one copy of the 18-volume, 4,107-page ROP. The letter stated that the cost of copying the single set was $685.60⁶ and estimated the final cost of preparing the ROP "will be somewhere between $15,000-$18,000."

On April 19, 2005, a senior staff attorney for MID sent counsel for plaintiffs a letter stating that the actual cost for copying and binding a single set of the ROP was $736, not the $685.60 indicated in the earlier letter. It appears the increase in amount was due to the sales tax charged by the copying service. In addition, the April 19th letter stated:

"The total cost of gathering, organizing and indexing the record is $31,213.44. This amount includes only the time spent by the District's Environmental Compliance Officer in accumulating, organizing and indexing the record; the time spent by the District's consultants who prepared the environmental impact report in gathering, copying, and shipping documents in their files and in reviewing the record for completeness and accuracy; and the cost to copy/bind the original administrative record lodged with the court."

The value of MID's environmental compliance officer's time was stated as $8,026.68 based on "114 regular hours at a weighted rate of $52.30[,] [¶] 26.25 hours at a weighted rate of $59.84[, and] [¶] 5.5 overtime hours at a weighted rate of $89.76[.]" The cost of Electrical Consultants, Inc's work on the ROP was reported as $22,450.76.

MID's letter to counsel for plaintiffs included a copy of an April 13, 2005, letter that Crystal Kuntz, an assistant environmental coordinator at Electrical Consultants, Inc., sent to MID. Her letter summarized the work Electrical Consultants, Inc., performed in preparing the ROP and reported the charges for each month (February, March & April) in four categories: (1) environmental coordinator services, (2) assistant environmental coordinator services, (3) copying and shipping,⁷ and (4) secretarial preparation of materials including expenses. Though monthly project invoices are mentioned in Ms. Kuntz letter, none are included in the appellate record and thus we must assume that none were provided to the court below. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364,1 Cal.Rptr.3d 726 ["if it is not in the record, it did not happen"].)

In the fall of 2005, plaintiffs lost their CEQA case and a judgment was filed in favor of MID. In a separate appeal, this court concluded that the EIR for the project complied with CEQA and affirmed the judgment. (Wagner Farms, Inc. v. Modesto Irrigation District, supra, F049311.)

In late November 2005, MID filed a memorandum of costs totaling $34,077.95, which included a $33,422.24 claim for preparing and filing the ROP. An attachment to MID's memorandum of costs categorized the cost of preparing and filing the ROP as environmental compliance officer ($8,026.68), consultant's environmental coordinator services ($22,450.76), and copying and binding ($3,680.80 less $736 paid by plaintiffs). The consultant's charges were supported with a copy of the April 13, 2005, letter from Electrical Consultants, Inc. to MID. The copying and binding costs were supported with a copy of a two-page invoice from Dittos, a printing company located in Modesto, California, that produced five copies of the ROP.

Plaintiffs filed a motion to tax costs. They argued that MID impermissibly delegated the preparation of the ROP to its consultants, that the amounts requested for preparation of the ROP were not adequately supported, and that the exorbitant amounts spent were not necessary or reasonable. Plaintiffs supported the motion with a declaration of counsel, which attached as exhibits the April 13 and 19, 2005, letters from MID.

MID's opposition was supported by a declaration of an in-house attorney that stated the superior court requested a temporary replacement copy of the ROP and that MID submitted the requested copy to the court. No other declaration or supporting evidence to substantiate the cost that MID claimed for time spent by MID's environmental compliance officer in accumulating, organizing, and indexing the record was provided with the opposition.

In their reply to MID's opposition, plaintiffs argued that the lack of detail supporting the hours spent on the ROP was striking and that MID failed to carry its burden of showing the costs claimed were reasonable and necessary.

The superior court requested supplemental briefing addressing (1) whether plaintiffs' challenge to the costs of preparing the ROP was barred by laches because plaintiffs never requested an estimate of cost before the ROP was prepared, (2) whether certain charges were permitted and (3) the applicability of the principles set forth in Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal. App.4th 176, 26 Cal.Rptr.3d 783 (Hayward).

The parties submitted supplemental briefs and a hearing was...