The Fifth District Court of Appeal, in a partially-published opinion, ruled on a cost award in Citizens for Ceres v. City of Ceres (2016) 3 Cal.App.5th 237. The court disagreed in part with the decision in Hayward Area Planning Association v. City of Hayward (2005) 128 Cal.App.4th 176 (“Hayward Area Planning”), and granted real party in interest’s request for the cost of preparation of the administrative record.

Citizens for Ceres (“Citizens”) filed a petition for writ of mandate under CEQA challenging the City of Ceres’ approval of a Wal-Mart shopping center. At Citizens’ request, the city prepared the administrative record, through its outside counsel. Pursuant to agreement with the city, real party in interest Wal-Mart subsequently reimbursed the city $48,889.71 for the costs of preparing the record.

After the city and real party in interest won on the merits at the trial court, Wal-Mart filed a memorandum of costs requesting payment for the cost of preparation of the administrative record. In response, Citizens filed a motion to tax costs, arguing that the city could have recovered the cost of preparation of the record, but Wal-Mart could not. The trial court granted Citizens’ motion, based on the holding in Hayward Area Planning, and denied Wal-Mart’s request for costs.

The Fifth District Court of Appeal disagreed with the trial court and found that Public Resources Code section 21167.6, subdivisions (b)(1) and (b)(2), do not bar a real party in interest from recovering the cost of record preparation where the petitioner requested that the lead agency prepare the record, and the real party reimbursed the agency. Section 21167.6 provides three express options for preparation of the administrative record in a CEQA action: (i) the agency can prepare the record; (ii) the plaintiff can prepare the record subject to the agency’s certification; or (iii) the agency and the plaintiff can agree on a different procedure. The First District Court of Appeal in Hayward Area Planning held that prevailing parties are entitled to seek an award of the cost of preparing an administrative record only when the record was prepared in one of the three approved ways. The Hayward Area Planning court held that a real party in interest could not recover costs when the petitioner directed the agency to prepare the record and the agency delegated that task to the real party interest.

The Fifth District Court of Appeal explained that Section 21167.6(b)(1) requires the parties to “pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court.” Wal-Mart applied to recover costs under Code of Civil Procedure sections 1032 and 1033.5, and the court found that there is nothing in section 21167.6 limiting such recovery so long as the record was prepared in one of the three specified ways. Here, the record was prepared in one of those ways—it was prepared by the agency—and contrary to the holding in Hayward Area Planning, the right to recover is not limited any further.

The Court of Appeal reversed the trial court’s order granting Citizens’ motion to tax costs and remanded for the lower court to determine whether the requested administrative record costs were reasonable.