Protect Our Homes And Hills vs. County of Orange

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.July 2, 2015

O O 0 0 N N O N W n b h W N = N O N N N N N N O N O N m m e m e m e m e m p m e m = 0 0 N N O A W n R A W N = O O V U N Y R A W N O LATHAM & WATKINS LLP Christopher W. Garrett (Bar No. 100764) Taiga Takahashi (Bar No. 281335) 12670 High Bluff Drive San Diego, California 92130 Telephone: 858.523.5400 Facsimile: 858.523.5450 E-mail: christopher.garrett@lw.com E-mail: taiga.takahashi @lw.com Attorneys for Real Party-in-Interest YORBA LINDA ESTATES, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CIVIL COMPLEX CENTER PROTECT OUR HOMES AND HILLS; HILLS FOR EVERYONE; ENDANGERED HABITATS LEAGUE, INC.; CALIFORNIA NATIVE PLANT SOCIETY; FRIENDS OF HARBORS, BEACHES AND PARKS, INC,, Petitioners and Plaintiffs, V. COUNTY OF ORANGE; BOARD OF SUPERVISORS OF COUNTY OF ORANGE; CITY OF YORBA LINDA; CITY COUNCIL OF THE CITY OF YORBA LINDA; and DOES 1 through 20, inclusive, Respondents and Defendants, and YORBA LINDA ESTATES, LLC, an Arizona Limited Liability Company and a California Limited Liability Corporation, and DOES 21 through 50, Real Parties-in-Interest. Case No. 30-2015-00797300-CU-CT-CXC ASSIGNED FOR ALL PURPOSES TO HON. WILLIAM D. CLASTER DEPARTMENT CX-102 REAL PARTY YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Action Filed: July 2, 2015 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 0 N N O N h h B R W N 10 11 12 13 14 13 16 I7 18 19 20 21 22 23 24 25 26 27 28 TO PETITIONERS PROTECT OUR HOMES AND HILLS; HILLS FOR EVERYONE; ENDANGERED HABITATS LEAGUE, INC.; CALIFORNIA NATIVE PLANT SOCIETY; AND FRIENDS OF HARBORS, BEACHES AND PARKS, INC.; AND RESPONDENTS COUNTY OF ORANGE ET AL. PLEASE TAKE NOTICE THAT on December 2, 2016 at 9 a.m. or as soon thereafter as the matter may be heard in Department CX-102 of the Civil Complex Center of the Superior Court of the State of California for the County of Orange, Real Party-in-Interest Yorba Linda Estates (“Real Party”) will and hereby does move the Court for an orderto strike or tax costs sought by Petitioners Protect Our Homes and Hills; Hills For Everyone; Endangered Habitats League, Inc.; California Native Plant Society; and Friends Of Harbors, Beaches And Parks, Inc. (“Petitioners”) in their entirety, or, in the even the Court exercisesits discretion to tax (reduce) costs,in the sum of $13,722.24 (to a total of $3,299.46 in allowable costs), in this action pursuant to Code of Civil Procedure section 1033.5 and California Rule of Court 3.1700. This motion is made on the grounds that Petitioners are not “prevailing” parties under Code of Civil Procedure section 1032 and that the above-referenced sums sought by Petitionersin their respective Memorandum of Costs were related to their unsuccessful and dismissed causes of action against the City of Yorba Linda, are not permitted under the Code of Civil Procedure and the applicable case law as allowable costs, or were not reasonable or necessary to the trial in this matter. This motion is based upon this motion, the attached memorandum of points and authorities, and the pleadings and records on file herein and the argument of counsel. Dated: October 24, 2016 Respectfully submitted, LATHAM & WATKINS LLP Wdaad Christopher W. Garrett Attorneys for Real Party-in-Interest YORBA LINDA ESTATES, LLC 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES” MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 N N N N n h BR A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page MEMORANDLM QF POINTS AND AUTHORITIES ....comemommmssummommesmmnamummmessssmesoesss 1 L FACTUAL AND PROCEDURAL BACKGROUND..........ccocectmeiririnneencerincee neers 1 Te ElETNcoccioootBRENN2 A. The Court should strike Petitioners’ cost memorandum because they are not prevailing parties under Code of Civil Procedure section OO-2 B. In the alternative, the Court should tax Petitioners’ COStS. .......ccceerveeeeirveeeeernnenen. 4 1. Filing and process fees related to claims against City of Yorba Linda (Attachinents la-g; 58-b; 138). ..ccuumsissimmnismimmsanss 4 2 Unnecessary copying costs (Attachment 11).......ccoooeeiiniiininiiiniinnccnnnee. 5 3 Federal Express costs (Attachment 13C).......ccccuvveevenieniicneneenenieeneesneennnes 6 4, Record costs (Attachment 13d) .......ooevviviieeiiiiiiecieecceecreecceeeee 6 5 Transcripts (Attachment 13€) .......cccccveeviineeninicnenciiicccnccecece 9 6. Attorney Travel Expense and Mileage (Attachment 13f)........ccccccceennneen. 9 C. Table of Petitioners’ Requested Costs, Requested Tax, and Revised TOL...e esessabensees 9 IL CONICUTETEIN co comnunnemiessonmionoss esiessonsnss coins osinsssss sams5555558 5 AS08346 S508 SU8H SF RIRRT SARUR EHS 11 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 9 n n B A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) CASES Childers v. Edwards (1996) 48 Cal.APP.4th 1544...essencesesteseen3,4 East Bay Mun. Util. Dist. v. Department ofForestry & Fire Protection CLE 0s: EELBREAD: TLE ees csnmmommaminnsnssmams ommmmsmnmsmsmmnamosmsoSpSis3 Hewitt v. Helms FLORTS ABD ULBTHD cn nmnunnnosusssssssinnnsmosssss onussmssssieiaaa55s ioissisaaAn3 Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.APP.AthTOL...essenceseessees5 MacQuiddy v. Mercedes-Benz USA, LLC {A155 287 TalSPEJRIBErmssponsessammy sans smimassomaSSRAD2 Olsen v. Breeze (18996) 48 CaALATDAT BIB commmmonmnspmsnssmmmmsnsomeomnisissosms3 Ripley v. Pappadopoulos (1994) 23 Cal.APP.Ath 1616 .....ceiiiieeeieiiicrceeeretereteestestsarsreeeeene ns 6 Science Applications Intl. Corp. v. Superior Court £1995) 39 CalBppdilt 1D.....communmssmssmmsnsssissamass:2 Sears v. Baccaglio (1998) 60 CalAPA 1 130 cow iemmmmmimnnsumsosovmnsossnsn mssemseeeissmsmnsas2 Sharif v. Mehusa (2015) 241 Cal.APP.Ath 185...eerstesasssbeeeestes eesassns2 Stevens v. City of Glendale, FIG TT TA URLABITE TE +cnnramsssmom omsmmsms ns 4 000 20mm ons sass Fes DRSaimEmEAH4 Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.AppAh 1282 cunsmmmunmusmsrmivsniuonssossmt sis sini sssansoss aasasi mas stssss ss sippy2 Zintel Holdings, LLC v. McLean (2012) 209 Cal.APP.Ath 431...cecesaeseessassesses2 STATUTES CICP § 1032....ccconmcoescunssvssnsnsrsessnssnsssnunsasasasamssssnsssnsessesnssassasssss sess ssssspasssasssnsns amnion sem aaseansnsen sionpassim CEE 8 VIBZURnsnmssmmumunnsinsinoiasnnstoasssiois miss Shas sss SeshaiShasAPAPHRAS ARES2,3 il 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 0 N N N N L n h h W N N O N N N N O N O N N N m m e m e m e a e m e e e m p s p e 0 0 3 O N W n p h W I N = O O V V O N Y N N R R W N = O O CCP § 1032(D) cvvvvevverreeereeeeessesevereeseseeseeessessesssesssss ess ssesessss asses svessess eset seesessss esse sessssssssissase senses2 COP § 1033.5 vvvvveeeeeeeeeeeeseseeeseeesesesssssseeaseeseesessesseesesesesesessssessssemmesesssssssemesesssesssesassesssssemsessessessesees 9 CCP § 1033.5(2)(12) rrerereeeeereeeesveeeeseseessemeeeseseessesesssesssssesesssssesessesessssssssssssssssessessesssssesaseseseseeseen 5 CCP § 1033.5(D)(3) cerrevveveeeeeeseeseeeesesesesesseasesseeeesesssssssssesssmesessssesssssssssess soem esssssssssasesssssssseesesneson 5,6 COP §1033.5(D)(5) rrrerrveerermeeeseeemmessesessseseseseeseesesssesseeessssssesssesssesssssssesssssesssssesesemeesssssssesesssssseseseees 9 CCP § 1033.5(C)(2) eerrmrrreveeeesserereeermessesessesmeessesssessessesesesessssssssessssesssssssssessessssesssesssesosssmsessessenns 5,6 COP § 1004.5 ..voveooeeeeeeeosesseseeeeomse essessoessess sess eoesssasases esses senses sess sssssss esse sesseeseseessseses 9 PUD. RES. COE § 21167.6.comnrveeeeeeeeeveeeessesseeoeresssssssssssmsssssssssssssesssssssssssssssssessssssssss nossa sssssssseees 7 PUB. RES. COE § 21L6T.6(D) cnrvveeeermrsrreeessessseeesesseeseseeesessssessessesessssesessesasasesesesssesesssessesessseseenee 7 PUD. RES. COE § 2LL6T.6()(4).vvevemmrerrveeesreeeeereoseseeeseeeseeesssesseesmssssssssssesmsssssessesassssssssesesesessssoen7 PUB. RES. COE § 21167.6(E)(A)...cruermnerrerererereeeereesessesevessssssssssesmmsssessssssmmsssssssesmsesssssssssesemsesssnies 7 iii 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 0 N N O A n n B h W N N N N N N N N N N m m m e E m e e e d e t p e e e 0 0 ~ ~ O N W n b h W N = O O OV O 0 0 N D R W = O MEMORANDUM OF POINTS AND AUTHORITIES By this motion, the Real Party-in-Interest Yorba Linda Estates, LLC (“Yorba Linda Estates” or “Real Party”) respectfully requests that the Court strike Petitioners Protect Our Homes and Hills et al.’s (“Petitioners”) Memorandum of Costs (Register of Actions [“ROA”] No. 366.). In the alternative, the Court should tax (or reduce) the vast majority of the costs claimed by Petitioners. The Court should strike Petitioners Memorandum of Costs because Petitioners were not “prevailing parties” for purposes of recovery of costs and do not fall under the enumerated categories for recovery of costs as a matter of right under Code of Civil Procedure (“CCP”) section 1032. Because Petitioners abandoned all of their claims against the City of Yorba Linda and lost on 29 or their 30 remaining claims raised in their opening and reply briefs, (Exhibit “A” - Contested Claims and Outcome), prevailing only on a claim related to analysis of greenhouse gas emissions (“GHG”) mitigation measures, the Court should exercise its discretion and declare that Petitioners are not “prevailing parties” entitled to recovertheir litigation costs. Indeed, the claim that Petitioners prevailed upon constituted a single, two-line, 17-word allegation in a petition comprised of over 260 paragraphs of allegations and requests for relief spanning 56 pages. In the alternative, the Court should tax Petitioners’ costs. For example, Petitioners seek costs related to their claims against the City of Yorba Linda - which they voluntarily dismissed, but only after preparation of the administrative record and failing to compel discovery. (ROA No. 185). Petitioners also seek nearly $12,000 in paralegalfees and other costs for preparation of the administrative record - which was actually prepared by the County and Real Party at a cost of nearly $35,000 that is not being sought against Petitioners. Numerous cost items sought by Petitioners are expressly prohibited under the costsstatute; others were not reasonable or necessary to the trial in this matter. Thus, in the event the Court taxes Petitioners’ costs, the Court should tax $13,722.24 ofthe costs sought by Petitioners, for a total of $3,299.46 in allowable costs. | FACTUAL AND PROCEDURAL BACKGROUND In this action, Petitioners challenged the various County of Orange (“County”) approvals for the Esperanza Hills development project (the “Project”). 1 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 0 ~ ~ O N W h ~ ~ W N 10 El 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On August 24, 2016, the Court entered judgment granting the petition for writ of mandate based on its conclusion that the EIR’s analysis of mitigation measures for the project’s potential greenhouse gas emissions impacts was defective. The Court found the EIR adequate in all other respects. (ROA No. 342, 357 -59.) Notice of entry of the judgment was given by Yorba Linda Estates on August 25, 2016. (ROA No. 364.) Petitioners electronically served and filed their memorandum of costs on September 7, 2016. (ROA No. 366.) Yorba Linda Estates electronically served and filed its memorandum of costs on September 9, 2016. (ROA No. 369.) On September 26, 2016, the Court extended the deadline to file and serve any motion to strike or tax costs to October 24, 2016. (ROA No. 372.) Accordingly, this motion is timely. II. DISCUSSION A. The Court should strike Petitioners’ cost memorandum because they are not prevailing parties under Code of Civil Procedure section 1032. Whether costs are awarded as a matter of right or as matter of the Court’s discretion depends on how the prevailing party is determined. It is important to note, as an initial matter, that the definition of “prevailing party” for purposes of an attorneys’ fee award and a costs award are not the same. (See, e.g., Sharif v. Mehusa (2015) 241 Cal.App.4th 185, 192; MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1047; Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 438; Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1264 [listing cases]; Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1142.) For a cost award, if a party fits one of the definitions of “prevailing”listed in CCP section 1032(a)(4), that partyis entitled as a matter of right to recover costs. (See also CCP § 1032(b).) If a party recovers anything other than monetary relief and in situations not specified above, a trial court shall determine the prevailing party and use its discretion to determine the amount and allocation ofcosts, if any. Because Petitioners are not “the part[ies] with 9 66a net monetary recovery,” “a defendant in whose favor a dismissal is entered,” “a defendant where neither plaintiff nor defendant obtains any relief,” or “a defendant as against those plaintiffs who do not recover any relief against that defendant,” Petitioners are not entitled to costs as a matter of right. Accordingly, here, the prevailing party is determined by the court and the award ofcostsis 2 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 0 N N O N W h B H 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discretionary. (CCP § 1032(a)(4).) The Court may “allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides.” (CCP § 1032(a)(4).) The factthat Petitioners prevailed on a single claim related to the EIR’s analysis of GHG mitigation measures does not make them “prevailing” parties. (Cf. Hewitt v. Helms (1987) 482 U.S. 755, 763 [“[A] favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a ‘prevailing party.’”].) Where plaintiffs have failed to prevail on the majority of claims,like Petitioners here, courts have held the defendantto be the prevailing party. (East Bay Mun. Util. Dist. v. Department ofForestry & Fire Protection (1996) 43 Cal.App.4th 1113, 1133 [plaintiff was not prevailing party, despite court’s ruling that defendant’s guidelines were illegal, where court declined to enjoin use of guidelines and ruled against plaintiff on all other causes of action]; Olsen v. Breeze (1996) 48 Cal.App.4th 608, 627 [plaintiff whose lawsuit prompted ski equipment distributors to modify their release of liability forms was not prevailing party, where plaintiff had sought to outlaw use of releases altogether].) The case law supports the proposition that a limited “victory” does not necessarily make a petitioner a prevailing party. The Court should exercise its discretion here to find Petitioners notto be the prevailing parties. Petitioners dismissed all of their claims against the City of Yorba Linda on January 11, shortly beforefiling their opening brief. Petitioners’ advanced 28 claims in their Opening Brief, followed by two more in the Reply Brief, as set forth on Exhibit A. Petitioners prevailed on only their claim for GHG mitigation, which did not involve the recovery of any monetary relief. The determination ofthe prevailing party under CCP section 1032(a)(4) where no monetary relief was recovered was addressed in Childers v. Edwards (1996) 48 Cal.App.4th 1544. Childers was a fraud action by real estate buyers against sellers, and the trial court entered judgment for defendants based on its finding that, though defendants had made misrepresentations, the plaintiff buyers had failed to prove out-of-pocket damages. (Id. at p. 1547.) The trial court also denied defendants’ motion for attorneys’ fees as the prevailing parties. (/d.) The court of appeal reversed the order denying attorneys’ fees and held that defendants were the “prevailing parties” by definition under CCP section 1032. Even though the plaintiff buyers prevailed on the issue of 3 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES OV O 0 NN a Wn A W N em N O N N O N N N N N N N O N m = o m m m p m p m p m p m p m p m p e 0 N N O N U n h h W N = O W w 0 0 N D R A W = © liability, plaintiffs failed to prove any damages and thus failed to “recover any relief against” defendants as required by CCP section 1032. (/d. at p. 1551.) Similarly, the Court in Stevens v. City of Glendale held that plaintiffs were not entitled to costs under CCP section 1032 because the issues on which they prevailed were not substantial compared to the many requests for relief which were denied. ((1981) 125 Cal.App.3d 986, 1001.) The Stevens plaintiffs challenged the legality of an EIR and the city’s general plan and housing element,alleging several different violations of CEQA and the Planning and Zoning Law. (Id. at p. 989.) Thetrial court granted a writ of mandate because the EIR should have given public notice before the adoption of the EIR of new plans to extend an existing street. (Id. at p. 991.) However, the general plan and housing element were consistent with the Planning and Zoning Law. (/d.) Accordingly, the trial court denied plaintiff’s requests for attorney fees and costs, and the Court of Appeal affirmed. (Id. at pp. 1000-01.) Further, Petitioners clearly do not believe that they are the prevailing parties in this action because they have appealed the entirety of the Court’s August 24, 2016 judgment. (Petrs. Notice of Appeal [Oct. 24, 2016].) Petitioners are the only party to file a Notice of Appeal of this decision. It is difficult for Petitioners to simultaneously appeal the entirety of Judge Claster’s decision, while maintaining that they are the prevailing parties before the Court. Accordingly, the Court should exerciseits discretion to strike Petitioners’ costs entirely because they are not “prevailing” parties under CCP section 1032, because Petitioners abandoned all of their claims against the City of Yorba Linda and lost on 29 of the 30 remaining claims they raised. B. In the alternative, the Court should tax Petitioners’ costs. i Filing and processfees related to claims against City of Yorba Linda (Attachments la-g, 5a-b, 13a). CCP section 1032 defines the City of Yorba Linda as the prevailing party in its litigation against Petitioners because all claims against the City were dismissed, so Petitioners are not entitled to any fees or costs arising out of the unsuccessful prosecution ofits litigation against the City. 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 0 N N o N W n B A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nonetheless, Petitioners are seeking filing fees of $1,435.00 for their Petition, which includes the filing fees against the City of Yorba Linda, $60.00 forfiling an unsuccessful motion to compel the deposition of a person most knowledgeable for the City of Yorba Linda on November 10, 2015, $125.40 for process of service on the City of Yorba Linda, $9.95 forfiling of a request for dismissal against the City on January 11, 2016, and paralegal fees of $6,398.00 for preparation of a an administrative record against both the County and City starting over two months priorto the filing of the litigation. No portion of Petitioners fees or costs related to their unsuccessful prosecution of their case against the City of Yorba Linda are recoverable against the City and CCP 1032 does not authorize recovery for costs or fees against third-party defendants for costs and fees that are not recoverable against the target defendant. The costs related to the prosecution of the case against the City that should be excluded are $912.85, excluding the paralegal costs of $6,398. If the paralegal fees are recoverableat all, they should be apportioned to exclude all fees prior to the filing ofthelitigation and all fees associated with any cause of action against the City. Attachment la-g should therefore be reduced by $777.50 (to a total of $1017.50 in allowable costs). Attachment 5a-b should be reduced by $125.40 (to a total of 125.40 in allowable costs). Attachment 13a should be reduced by $9.95 (to a total of $298.50 in allowable costs). 2 Unnecessary copying costs (Attachment 11) Exhibit-related costs are only recoverable for exhibits that were “reasonably helpful to aid the trier of fact.” (CCP § 1033.5(a)(12).) In addition, “[i]t follows that fees are not authorized for exhibits not used at trial.” Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 775.) Ordinary costs for photocopies are expressly not allowed under CCP § 1033.5(b)(3). Copies of exhibits for Petitioners’ counsel’s use and opposing counsels’ use are not “reasonably helpfulto aid the trier of fact.” Similarly, courtesy hearing binders and copies were not “reasonably necessary to the conduct ofthe litigation” - indeed, Real Party used its own hearing binders forits preparation for the hearing the hearing. (See CCP § 1033.5(c)(2).) Accordingly, the only amounts allowable under Attachment 11 are the costs related to exhibits 5 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 provided to the Court, assuming that these exhibits were helpful to aid the Court. The total amount claimed for Attachment 11 should therefore taxed by two-thirds, or $969.12 (to a total of $484.58). 3, Federal Express costs (Attachment 13c) Petitioners cannot be reimbursed for Federal Express charges as a matter of law. Federal Express charges fall under the express prohibition against recovery of “postage charges” under CCP section 1033.5(b)(3). (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627-28.) Accordingly, the total amount claimed for Attachment 13c should be taxed by $65.31 (to a total of $275.00 in allowable costs). 4. Record costs (Attachment 13d) Petitioners cannot recover their costs for purported record preparation for several reasons. First, Petitioners are expressly not allowed to recover costs for photocopying under CCP § 1033.5(b)(3) and/or those costs that are not reasonable or necessary fortrial (CCP § 1033.5(c)(2)). Despitethis prohibition, Petitioners seek approximately $2,200 in photocopying and other similar costs in regards to request under the Public Records Act that pre-dated this litigation (first line item in Attachment 13d), and; $575 for “County of Orange email project” that appears to relate to Petitioners’ internal processing of the County’s public records act disclosure (third line item). These records would have been (and were) disclosed, processed, organized, and indexed in the course ofthe litigation, regardless of the Petitioners’ public records request, when the County prepared and certified the record in this case. Accordingly, the entirety of this line item should be taxed because it is expressly disallowed under CCP § 1033.5(b)(3) and/or was not reasonable or necessary for the trial. Petitioners also requested $2,450 in costs related to transcripts of the administrative proceedings in the second line item in Attachment 13d. However, all of the transcripts necessary to complete the administrative record - 1/16/14, 1/14/15, 3/10/15 and 6/2/15 (AR, Items F2, F4, F8 and F11) - were not prepared and paid for by Petitioners, so the entirety of Petitioners’ claimed costs in Attachment 13d should be taxed because, simply, they did not prepare the administrative record. There is no transcript in the record for agency proceedings on December 17, 2015, because the entitlements at issue in this case were completed on June 2, 2015, so there is no basis for 6 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 N N n n R h W N N N N N N N N N O N e s e m m m p e e d p d p e p e 0 0 ~ N O N L h R A W N = O V N N N R W = O charging as costs the transcription of any meetings that occurred after the administrative proceedings in this case became complete. There was a meeting of the Planning Commission on December 17, 2014; however, such transcript was not required to be part of the administrative record under Public Resources Code 21167.6(e)(4). Section 21167.6(e)(4) does not require that that December 17, 2014 transcript be part of the record, because the Board of Supervisors was the only “decisionmaking body” of Respondents which “heard testimony on, or considered any environmental document on, the project.” The transcript of the December 17, 2014 Planning Commission meeting was not “presented to the decisionmaking body prior to action on the environmental documents or on the project.” Therefore, the entire $2,450 should be should be taxed because it was not reasonable or necessary for the completion of the administrative record. Third,Petitioners’ improperly claim $6,398 in paralegal fees as costsin the last line item in Attachment 13d, including fees incurred back to April 30, 2015, two months prior to the filing of the petition. Paralegals’ fees are ordinarily categorized as attorneys’ fees and not recoverable as costs. “Because we have concluded attorney fees not compensable, we cannot condone payment of paralegal fees.” (Science Applications Intl. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1104]. Evenif the paralegal costs are related to “document control and database” charges, they should not be awardable as costs. (Ibid.) Further,there is no itemization as to what the paralegal time was incurred for, when it was incurred, what qualifications the paralegal had,if any, or any reason why it related to recoverable costs. Therefore, the entirety ofthis line item should be taxed. Finally, as noted in prior briefing (see, e.g., ROA Nos. 64 and 66), the County was solely responsible for verifying and certifying the accuracy of the record for the Petitioners’ causes of action against the County. (See Pub. Res. Code,§ 21167.6.) The Public Resources Code imposes a 60-day deadline from receipt of a request or notice ofelection to prepare the record to certify the record. (Id. § 21167.6(b).) No extension was granted, either through stipulation or court order. Though Petitioners elected to prepare the record, by as late as early August 2015, despite having received documents pursuant to the Public Records Act in April 2015, Petitioners had not requested additional approval-related documents for the record, nor had they provided a draft index oftheir proposed administrative record to the County, or any other documentthat indicated 7 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES © ©0 0 N N O N w n a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that sufficient progress on the administrative record had been made such that the County could meet its statutory deadline. Throughout August and September, the County, with the voluntary assistance of the Real Party and the environmental consultant for the Esperanza Hills development project, CAA Planning, compiled the administrative record and notified Petitioners oftheir actions The County, when requested by Petitioners, included documents and files in the record being prepared. Petitioners were in possession of a substantially complete draft record index prepared by the County with the assistance of CAA Planning since mid-August, for their review and. comment. During this period, Petitioners continued to insist that they possessed the exclusive authority to prepare the record; however, they did not provide an index of documents for the County’s review until September 4, 2015, just one week before the County’s statutory deadline and Petitioners’ draft index was inadequate in terms of completeness and substance. For example, the Petitioners’ draft index failed to include any of the e-mail correspondence that Petitioners wanted included in the record or the detail or organization that the County typically requires and had been working to achieve in the draft index being compiled with Real Party’s assistance. The documents that were listed in Petitioners’ draft index were incomplete, underinclusive or substantially similar to those contained in the County’s already completed index. In order to meet the County's statutory deadline to certify a record forthis case, therefore, CAA Planning, in conjunction with County staff, began assembling the administrative record documents and preparing an index in early August. Real Party also assisted in the collection of documents and transcriptions of hearings requested by Petitioners. The County has contacted Petitioners on several occasions to obtain their feedback on documents that Petitioners believed should be included in the record, and the County has accommodated those requests, even though, in some instances, the parties disagreed as to whether certain documents are statutorily required to be in the record. After Judge Colaw rejected two ex parte motions to delay preparation of the administrative record (see e.g., ROA Nos. 72 and 73), the County - not Petitioners - prepared the record, with Real Party’s voluntary assistance,at a cost that approached $35,000 and borne by the Real Party at 8 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 0 N N O N W n b h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 no cost to Petitioners. CCP § 1094.5 allows the recovery of costs where the record is actually prepared by a prevailing petitioner; however, as noted, Petitioners did not prepare the record for this case. As a matter of equity and in the interests ofjustice, they should not be allowed to recover costs forfailing to prepare a record within the time allowed by statute. Accordingly, the entirety of Petitioners’ costs in Attachment 13d should be taxed. 5. Transcripts (Attachment 13e) Costsfor transcripts of court proceedings not ordered by the court are ordinarily not allowed. (CCP §1033.5(b)(5).) However, Petitioners’ assert costs for a transcript of the May 4, 2016 ex parte proceedings. (Attachment 13e, first item.) Pursuant to an agreement reached over email, Petitioners’ counsel agreed to share reasonable costs for the court reporter for this hearing. (Declaration of Taiga Takahashi, J 2, Ex. A.) Yorba Linda Estates’ incurred $227.50 in connection with the reporterto transcribe this hearing. (ROA No. 369, Item 13.) Accordingly, the total amount claimed for Attachment 13e should be taxed by $141.25 (Petitioners’ $55 claimed cost plus Yorba Linda Estates $227.50 claimed cost, divided by 2) (to a total of $620.20 in allowable costs). 6. Attorney Travel Expense and Mileage (Attachment 13f) Petitioners are also seeking an award of travel expenses for attorneys which are not allowable as costs. Petitioners’ retained an attorney whose office is in San Diego, who chose to prosecute this action in Orange County. An Orange County attorney would not be allowed to charge mileage for attending court actions, and there is no rule or statute that permits an out of county attorney to charge mileage. Travel expense is not an authorized cost pursuant to CCP 1033.5. The mileage charge of $585.84 should be disallowed. C. Table of Petitioners’ Requested Costs, Requested Tax, and Revised Total Petitioners Requested Cost Requested Tax Revised Total (with Tax) 1. Filing and motion fees: $1,795.00 $777.50 $1,017.50 5. Service of Process: $250.80 $125.40 $125.40 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES N o O O 0 0 N N O N w m p A W w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioners Requested Cost Requested Tax Revised Total (with Tax) 11. Exhibits: $1,453.70 $969.12 $484.58 12. Court reporter fees: $166.68 $0 $166.68 13a. Efiling fees: $308.45 $9.95 $298.50 13b. Ex parte filing fees: $311.60 $0 $311.60 13c. Joint record excerpts: $340.31 $65.31 $275.00 13d. Record preparation: $11,633.71 $11,633.71 $0 13e. Other Transcripts: $761.45 $141.25 $620.20 13f. Mileage: $584.85 $584.85 $0 Total Requested Costs: Total Requested Tax: Total Revised Costs: $17,606.55 $14,297.09 $3,299.46 [Remainder ofpage intentionally blank]10 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES N o © 0 0 N N O N W n h w 10 11 12 13 14 15 16 17 18 19 20 21 2) 23 24 25 26 27 28 IIL. CONCLUSION For the reasonsset forth herein, Yorba Linda Estates respectfully requests an orderstriking Petitioners’ memorandum of costs, or, in the alternative, an order taxing (reducing) Petitioners’ costs in the amount of $14,297.09 (or total of $3,299.46 in allowable costs). Dated: October 24, 2016 Respectfully submitted, LATHAM & WATKINS LLP wlTt Christopher W. Garrett Attorneys for Real Party-in-Interest YORBA LINDA ESTATES, LLC 11 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT A EXHIBIT A C hart of Petitioners’ Claims and Outcome Petitioners’ Claims Reference Outcome 1. EIR mischaracterized Chino Hills Opening Brief pp. 5-8 Dismissed as M eritless State Park acreage which affected wildlife movement, noise impacts, project design features 2. EIR mischaracterized acreage not Opening Brief p. 7 Dismissed as M eritless considered in project design features and construction noise not addressed 3. EIR failed to analyze and avoid Opening Brief p. 8 Dismissed as M eritless wildland fire hazards 4. Conclusions on fire impact mitigation Opening Brief pp. 8 - 12 Dismissed as M eritless on evacuation not supported by substantial evidence 5. EIR failed to adequately analyze Opening Brief pp. 12 - Dismissed as M eritless significant impacts to biological 13 resources 6. EIR fails to adequately analyze Opening Brief p. 13 Dismissed as M eritless impacts to plants 7. EIR fails to adequately analyze Opening Brief pp. 13 - Dismissed as M eritless impacts to wildlife 15 8. EIR improperly defers formulation of Opening Brief pp. 15 - Dismissed as M eritless biological resource impact mitigation 16 9. EIR impermissibly defers analysis for Opening Brief pp. 16-17 Dismissed as M eritless hazardous materials 10. EIR impact conclusions are not Opening Brief pp. 17 - Dismissed as M eritless supported by substantial evidence 18 11. Formulation of GHG Mitigation is Opening Brief pp. 19 - Court Issued Writ impermissibly deferred 20 12. GHG Performance Standard Used in Opening Brief pp. 20 - Dismissed as M eritless EIR is unsupported by substantial 23 evidence 13. EIR fails to adequately map and Opening Brief pp. 23 - Petitioner abandoned in identify secondary faults 24 Reply Brief 14. EIR fails to accurately identify Opening Brief pp. 25 - Petitioner abandoned in landslides 26 Reply Brief 15. EIR failed to analyze full range of Opening Brief p. 26 Dismissed as M eritless water needs 16. EIR conclusions aboutsufficient Opening Brief p. 26 Dismissed as M eritless water supplies are not supported by substantial evidence 17. Project's access remains unresolved Opening Brief pp. 26 - Dismissed as M eritless and potentially infeasible 27 18. Project's access options are legally Opening Brief pp. 27 - Dismissed as M eritless infeasible 28 19. EIR failed to analyze inconsistencies Opening Brief pp. 28 - Dismissed as M eritless with Y orba Linda General Plan 29 20. EIR fails to adequately analyze Opening Brief pp. 29 - Dismissed as M eritless EXHIBIT A C hart of Petitioners’ Claims and Outcome Petitioners’ Claims Reference Outcome Option 2B 30 21. EIR fails to include a reasonable Opening Brief pp. 30 Dismissed as M eritless range of feasible alternatives 22. EIR's Alternatives do not reducethe Opening Brief pp. 30 - Dismissed as M eritless project's impacts overall 33 23. Other alternatives were available that Opening Brief pp. 31 - Dismissed as M eritless were not included 32 24. EIR must evaluate a feasible Opening Brief pp. 34 Dismissed as M eritless alternative that does not go across Cielo Vista or City owned land 25. EIR failed to analyze Esperanza Hills Opening Brief pp. 35 - Dismissed as M eritless in conjunction with Cielo Vista 39 26. EIR’s cumulative analysis inadequate Opening Brief p. 39 - 40 Dismissed as M eritless due to informational omissions concerning Cielo Vista 27. Multiple EIR information deficiencies Opening Brief p. 42 Dismissed as M eritless related to CHSP required revision and recirculation 28. Additional changes in open space Opening Brief pp. 42 - Dismissed as M eritless calculation, preferred access and 43 evacuation required recirculation 29. Option 2 Modified never analyzed in Reply Brief pp. 15-18 Dismissed As Not Timely EIR Raised 30. GHG mitigation measures are Reply Brief pp. 11-13 Dismissed as M eritless infeasible © 0 0 N N A n A W N = N O N N N N N N O N O N e m e m p m p m p m p m e d p e p m pe s O o N N O N W n b h W N O V N Y B R E W I N = O PROOF OF SERVICE I am employed in the County of San Diego, State of California. I am over the age of 18 years and not a party to this action. My business address is Latham & Watkins LLP, 12670 High Bluff Drive, San Diego, CA 92130. On October 24, 2016, I served the following document described as: REAL PARTY YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT by serving a true copy of the above-described documentin the following manner: £3] VIA ELECTRONIC SERVICE: By electronic service pursuant to California Rules of Court, Rule 2.251(c)(2): See Attached Service List. 0 VIA FIRST CLASS MAIL: I am readily familiar with the Firm’s practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business, addressed to the following parties in this matter: O I caused such envelope to be delivered by hand to the offices of the addressee(s) VIA FEDERAL EXPRESS, addressed as follows: O VIA HAND DELIVERY: I caused to be personally delivered the above- described document(s) to the offices of the addressee(s) listed below. a VIA FACSIMILE: Such document(s) were transmitted to the parties at the facsimile numberslisted below. The facsimile used complied with Rule 2.306 and no error was reported by the machine. I declare that I am employed in the office of a member of the Bar of California, or permitted to practice before, this Court at whose direction the service was made and declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 24, 2016, at San Diego, California. Lovshe Christine Sherer 12 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES O O 0 0 N N A n n B W = N O N O N N N N N N N r e m e e m p d p m p e p d p b p e p e 0 0 N N O N L n BR A W N = O O Y N Y RE E W N = O Kevin K. Johnson, Esq. Jeanne L. MacKinnon, Esq. Kevin K. Johnson APLC 703 Palomar Airport Road, Suite 210 Carlsbad, CA 92011 (619) 696-6211 Kevin @johnsonlawaplc.com Jeanne @johnsonlawaplc.com Leon J. Page, Esq. Nicole M. Walsh, Esq. Julia Woo, Esq. Office of County Counsel 333 W. Santa Ana Blvd., Suite 407 Santa Ana, CA 92701 (714) 834-6257 Nicole.walsh@coco.ocgov.com Julia.woo@coco.0cgov.com SERVICE LIST Attorneys for Plaintiffs Protect Our Homes & Hills et al. Attorneys for Defendants County of Orange and Board of Supervisors of County of Orange 13 30-2015-00797300-CU-CT-CXC YORBA LINDA ESTATES’ MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES