Court rejects city's vindictive cost claim
Recall that the City Attorney hit us with a cost claim of more than $52,000 after the court certified the city's EIR on the Bicycle Plan. We of course contested the claim, which was punitive and in retaliation for our successful litigation forcing the city to do an EIR on the Bicycle Plan. In a tentative ruling (below in italics) before tomorrow's hearing on the matter, Judge Kahn agrees with our objections, completely rejecting the city's claim.
Recall too that City Attorney Dennis Herrera admitted during his campaign for mayor that he advised the city to do an EIR on the Bicycle Plan before it was implemented on city streets. Herrera was overruled---probably by Mayor Newsom---and the city began implementing the Plan, which is when we asked the court for an injunction that was granted by Judge Warren. Even though he advised doing an EIR in the beginning, Herrera's department proceeded to wage a relentless, meritless, expensive, and ultimately futile legal battle to be allowed to implement the 500-page Bicycle Plan without any environmental review, culminating in the vindictive cost claim against us.
The entirety of the City's costs memorandum is stricken. The proceedings on the return are not separate and independent from the proceedings that led up to the return and thus the City is not entitled as a matter of right to costs because it is not a "prevailing party" as that phrase is defined in Code of Civil Procedure section 1032(a)(4). Assuming without deciding that the court has the authority to award costs in its discretion per section 1032(a)(4), the court declines to do so because petitioners were the prevailing party on the initial writ and petitioners elected to prepare the record on the return, and an award of costs is fundamentally unfair given that petitioners were never provided with paper copies and the City does not dispute that the electronic version had little or no utility. Moreover, an award of costs to the City under these circumstances could be viewed as having a deterrent effect on future CEQA petitioners, which is contrary to the enforcement provisions of CEQA, and the City's hourly rates for paralegal time appear to be significantly beyond the actual costs incurred by the City.
And earlier post on Herrera and the Bicycle Plan.