Opinion
E050835
09-28-2011
VAIL LAKE USA, LLC et al., Plaintiffs and Appellants, v. COUNTY OF RIVERSIDE et al., Defendants and Respondents.
Phillips, Haskett & Ingwalson and Frederick C. Phillips for Plaintiffs and Appellants. Pamela J. Walls, County Counsel, and Elena M. Boeva, Deputy County Counsel, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INCR396483)
OPINION
APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Affirmed.
Phillips, Haskett & Ingwalson and Frederick C. Phillips for Plaintiffs and Appellants.
Pamela J. Walls, County Counsel, and Elena M. Boeva, Deputy County Counsel, for Defendants and Respondents.
Vail Lake USA, LLC, Vail Lake Village Resort, LLC and Vail Lake-Rancho California (collectively Vail Lake) appeal from an order partially denying their motion to tax costs following dismissal of their petition for writ of mandate. Finding no abuse of discretion, we affirm the order.
PROCEDURAL HISTORY
On July 16, 2003, Vail Lake filed a petition for writ of mandate and a complaint for an injunction and damages, challenging acts of the County of Riverside, the Riverside County Board of Supervisors and Riverside County Assessor Gary Orso (collectively, the County) in connection with the adoption of the Western Riverside County Multiple Species Habitat Conservation Plan (referred to by the parties as MSHCP). They contended that the MSHCP, the environmental impact report and the implementing agreement were "riddled with substantive defects" and violated the California Environmental Quality Act, or CEQA (Pub. Resources Code, § 21000 et seq.), and other state laws, and violated several of their federal constitutional rights.
On March 2, 2004, the court dismissed Vail Lake's CEQA cause of action because Vail Lake failed to request a hearing on the merits as required by CEQA. On February 13, 2009, the County filed a motion to dismiss for failure to bring the matter to trial within five years. The motion was granted on April 20, 2009. The order of dismissal was filed May 12, 2009.
On or about June 3, 2009, the County filed its memorandum of costs, seeking reimbursement for the cost of preparing the administrative record, in the amount of $234,856.43, and other costs which are not at issue in this appeal. On June 18, 2009, Vail Lake filed a motion to tax costs. It contended the amount charged for preparation of the administrative record was grossly excessive and unsupported by any documentation. The County filed opposition to the motion and filed supporting declarations and documentation.
After a hearing, conducted on August 26, 2009, and November 20, 2009, the matter was submitted. On December 2, 2009, the court issued its written ruling, partially granting and partially denying the motion. It awarded the County $138,019.51 as costs reasonably incurred in preparation of the administrative record.
The order on the motion was filed on January 23, 2010, and notice of entry was served on March 3, 2010. Vail Lake filed a timely notice of appeal.
LEGAL ANALYSIS
Any facts necessary to the discussion of Vail Lake's contentions are included where pertinent.
1.
VAIL LAKE HAS NOT DEMONSTRATED ANY ABUSE OF DISCRETION
A. General Principles and Standard of Review
When an action is filed alleging violations of CEQA, the plaintiff or petitioner must file a request that the respondent public agency prepare a record of the proceedings relating to the subject of the action. (Pub. Resources Code, § 21167.6, subd. (a).)Alternatively, the petitioner may prepare the record itself and then have the agency certify it. (§ 21167.6, subd. (b)(2).) If request is made upon the agency, the agency has 60 days from the date of the request to prepare and certify a record of the proceedings, and to lodge a copy with the court. (§ 21167.6, subd. (b).) The parties are required 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." (Ibid.) Here, Vail Lake filed a request that the County prepare the administrative record.
All further statutory citations refer to the Public Resources Code unless another code is specified.
In preparing the record of proceedings, "the party preparing the record shall strive to do so at reasonable cost in light of the scope of the record." (§ 21167.6, subd. (f).) This provision serves the dual purposes of containing costs and expediting CEQA litigation. (California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 292-293.)
In its motion to tax costs, Vail Lake contended that the costs the County claimed for record preparation were neither reasonable nor necessary. Whether a particular cost to prepare an administrative record was necessary and reasonable is an issue for the sound discretion of the trial court. (California Oak Foundation v. Regents of University of California, supra, 188 Cal.App.4th at p. 293.) Trial court discretion is limited by the applicable legal principles and is subject to reversal where there is no reasonable basis for its action. (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.) Whether the cost is reasonable is a question of fact for the trial court, and any factual findings must be supported by substantial evidence. (Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39.) The appellant has the burden of establishing an abuse of discretion. (California Oak Foundation v. Regents of University of California, supra, 188 Cal.App.4th at p. 293.)
B. Vail Lake's Challenges to the Court's Exercise of Discretion
(1.) Imposition of the Full Cost of the Record
The administrative record was not prepared solely for this litigation, but was prepared for this case and two others. The other two cases apparently settled. Vail Lake contended below that, as a matter of "policy and equity," the court should rule that the plaintiffs in each of the three cases should bear one third of the cost. It now contends that the trial court abused its discretion by imposing the entire cost on it.
It is the appellant's burden to demonstrate reversible error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) To do so, it must support its contention with citation to appropriate authorities and reasoned argument. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Vail Lake submitted no legal authority below, and it submits none on appeal. And, it makes no effort to support its contention with reasoned argument, presenting instead a cursory one-paragraph assertion that it was an abuse of discretion to order it to pay the full cost of record preparation. "Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783, disapproved of on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) Accordingly, Vail Lake has not met its burden of persuasion on this contention.
Although we are not persuaded by Vail Lake's cursory argument, we are equally unpersuaded by the authority the County cites in response to this argument. The County cites Blue v. City of Los Angeles (2006) 137 Cal.App.4th 1131, in which the appellate court held that the trial court did not abuse its discretion in denying the request for equitable apportionment by a plaintiff who contended that the costs should be apportioned among the several plaintiffs. The appellate court adopted the defendants'/respondents' argument that apportionment was not required because "[t]he cost would be the same whether there was one plaintiff, or three, or 30, so long as they were jointly represented." (Id. at p. 1157.) The cost may be the same, regardless of the number of plaintiffs, but that has nothing to do with whether it is appropriate to make all plaintiffs jointly and severally liable for the full-cost bill or to apportion the costs among them.
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In the same paragraph, Vail Lake asserts that the County "failed to carry its burden in proving that all of these claimed costs were in fact incurred." It does not elaborate on that contention. For the same reason, this contention fails. (See also section 3, post.)
(2.) Record Preparation Charges by Best, Best and Krieger
The County retained the law firm of Best, Best and Krieger (BBK) to assist it with the preparation and implementation of the MSHCP. Because the County lacked the resources or expertise "to identify the potential issues and prepare the administrative record," the County also retained BBK to prepare the record in response to Vail Lake's request. In support of the County's opposition to the motion to tax costs, Michelle Ouellette, a partner at BBK who oversaw the project, provided a declaration stating the above facts and itemizing the hours expended in preparing the record by attorneys, paralegals and a clerk, and their respective hourly rates. Ouellette stated that all of the time spent was reasonably necessary for the preparation of a "legally adequate record" and that substantial efforts were made to produce the record in the most cost-efficient manner, with "minimal oversight" by attorneys. Three attorneys spent a total of 119.5 hours on the preparation of the record, billing a total of $20,010. The lead paralegal spent 581.9 hours, billing $72,737.50, while two other paralegals and a clerk spent 62.9 hours, billing $5,462.50, for a total of $98,210. Ouellette stated that Vail Lake benefitted by being charged the County's contract rate, which was below market rates for her firm's services.
Below, Vail Lake contended that this amount was excessive. First, it contended, BBK's itemized billing, provided as an exhibit to Ouellette's declaration, showed that substantial amounts of time billed appeared to have nothing to do with preparation of the record, but were instead related to consultations and acts pertaining to defense of the lawsuit. Second, it contended that the work of assembling the record could have been done by a paralegal, and that 1,000 hours, representing full-time work for the six months BBK was given to prepare the record, should have sufficed, and that the cost should have been no more than $100,000 but that $50,000 would be more reasonable.
The trial court found BBK's billing reasonable, based on Ouellette's declaration.
On appeal, Vail Lake first contends that Ouellette's declaration is hearsay. However, Vail Lake did not challenge the declaration on that basis below, and it cannot do so for the first time on appeal. (People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6.)
Next, Vail Lake contends that it was an abuse of discretion not to reduce the costs of BBK's services in preparing the record for several reasons. It contends that "there was no showing" that County staff could not have assembled the record and that Ouellette's declaration is "absurd on its face" with respect to her statement that the County lacked the resources to prepare the record. And, it contends, although BBK's charges may have been reasonable for legal representation, they were not reasonable for record preparation.
As to the contention that there was no showing that the County's staff could not have prepared the record, we disagree. Ouellette's declaration to that effect is substantial evidence on which the court could reasonably rely. (See Lubetzky v. Friedman, supra, 228 Cal.App.3d at p. 39 [exercise of discretion in deciding motion to tax costs must be supported by substantial evidence; declaration may suffice].) BBK's charge for its share of the work in assembling the 90,000-page record amounts to little more than one dollar per page. We cannot say as a matter of law that this is not a reasonable amount. Accordingly, we conclude that the trial court did not abuse its discretion.
(3.) Costs Allegedly Not Actually Incurred
Vail Lake contends that the court abused its discretion in awarding costs the County did not actually incur. It notes that BBK's original breakdown of the costs of producing the record included the cost of reproducing the record for the court and for Vail Lake, totaling $22,431.10, and the cost of delivering a copy to the trial court, in the amount of $970. It notes that it never requested or received a copy. Vail Lake does not cite to any portion of the record which shows that these amounts were included in the costs claimed by the County. In any event, Vail Lake did not object to those items in its motion to tax costs. It cannot do so for the first time on appeal: "'[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.'" (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fn. omitted.)
DISPOSITION
The order partially granting and partially denying the motion to tax costs is affirmed.
Defendants and Respondents County of Riverside, the Riverside County Board of Supervisors and Riverside County Assessor Gary Orso are awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Hollenhorst
Acting P.J.
Codrington
J.