Disagreed With Hayward To The Extent Prevailing Real Parties Could Not Obtain Reimbursement Of A/R Preparation Expenses As Routine Costs In Mandate Dispute.
CEQA petitioners lost the merits of a CEQA petition brought against the City of Ceres and real parties Wal-Mart (two Wal-Mart affiliates). City had incurred costs of $48,889.77 to prepare the administrative record, but had those costs reimbursed by Wal-Mart under a reimbursement agreement. Wal-Mart filed a costs memorandum to recover these costs against losing petitioners, but the trial court granted petitioner’s motion to tax costs based on its reading of Hayward Planning Assn. v. City of Hayward, 128 Cal.App4th 176 (2005) to allow recovery of costs only by City, but not by a real party, under Public Resources Code section 21167.6.
The Fifth District reversed the costs disallowance in Citizens for Ceres v. City of Ceres, Case No. F070988 (5th Dist. Sept. 12, 2016) (partially published; costs discussion published).
Although agreeing with Hayward’s analysis that costs are recoverable under section 21167.6 where the record is properly prepared in the correct manner, the Fifth District believed that Hayward got it wrong from disqualifying a prevailing real party from obtaining A/R preparation costs for a record prepared by the City but reimbursed by real party. Real party fell within the definition of a routine costs prevailing party, and there was no concern that real party had somehow “gouged” anyone when the record indeed was prepared by the City.