However, Cost Determination Had To Be Remanded Because Plaintiffs Did Achieve More Success on Appeal.
In Madera Oversight Coalition, Inc. v. County of Madera, Case No. F059153 (5th Dist. Sept. 13, 2011) (certified for partial publication; cost discussion published), a vigorously contested CEQA battle–this being the second appeal—the Court of Appeal affirmed a petition for writ of mandamus relating to an EIR but also granted other portions of plaintiffs’ relief rejected by the lower court relating to archaeological site mitigation measures and other impacts (traditional cultural property, traffic, and cumulative impacts).
The lower court, in ruling on plaintiffs’ memorandum of costs, found that it had to determine who prevailed because they were not entitled to costs as a matter of right. After all, plaintiff obtained no monetary relief but did achieve significant nonmonetary relief through the issuance of mandate decertifying the EIR and vacating the approvals related to the project–which meant that the trial court had to determine the prevailing party, in its discretion, and could apportion costs between the parties. (Code Civ. Proc., § 1032(b); Bowman v. City of Berkeley, 131 Cal.App.4th 173, 177-182 (2005).) That is what the trial court did, dividing costs equally between the parties (because “in many ways” both sides prevailed) and ordering defendants to remit $5,725.86 to plaintiffs.
The apportionment calculus adopted by the lower court was sustained if one reads between the lines of the appellate court’s reasoning. However, there was a glitch. Plaintiffs achieved some greater success on appeal, such that the matter had to be remanded to see if the 50% apportionment was fair in light of what transpired on appeal.