Citizens Against Marketplace Apt./Condo Dev. v. City of San Ramon

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April 24, 2026 Get Citation Alerts Download PDF Add Note

Citizens Against Marketplace Apt./Condo Dev. v. City of San Ramon

California Court of Appeal

• Citations: None known

• Docket Number: A170988

• Opinion

• Authorities (20)

• Cited By (0)

• Summaries (0)

• Similar Cases (85.8K)

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Combined Opinion

Filed 4/24/26

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

CITIZENS AGAINST
MARKETPLACE
APARTMENT/CONDO
DEVELOPMENT,
Plaintiff and Appellant, A170988/A172221
v.
CITY OF SAN RAMON, (Contra Costa County Super. Ct.
Defendant and Respondent; Nos. N22-1955, N23-0770)
MARKETPLACE AT SAN RAMON,
LLC,
Real Party in Interest.

In these consolidated appeals, Citizens Against
Marketplace Apartment/Condo Development (Citizens) appeals
from denial of its petitions for writ of mandate and a post-
judgment costs order. Citizens sought to overturn the City of San
Ramon’s approval of an infill housing project on the site of an
aging shopping center. Citizens also challenges the city’s
conclusion that the project was exempt from the California
Environmental Quality Act (CEQA; Pub. Resources Code, § 21000
et seq.) under the categorical exemption for “in-fill development”

• Pursuant to California Rules of Court, rules 8.1105(b) and

8.1110, this opinion is certified for publication with the exception
of Discussion sections B. and C.
1
(Cal. Code Regs., tit. 14, § 15332).1 In the published part of this
opinion, we reject Citizens’ arguments that the project conflicted
with the city’s general plan and zoning ordinance. In the
unpublished parts, we reject Citizens’ CEQA argument and its
challenge to the trial court’s order awarding record costs to the
city. Accordingly, we affirm the judgment and post-judgment
costs order.

BACKGROUND

A.

Real party in interest Marketplace at San Ramon (doing
business as TRC Retail) owns Marketplace Center, which is a
shopping center at the intersection of Alcosta Boulevard and
Bollinger Canyon Road in San Ramon. Since 2006, the city’s
general plan and zoning ordinance have designated and zoned
the Marketplace Center for “[m]ixed [u]se.” The general plan and
zoning ordinance define “[m]ixed [u]se” as single sites that
combine residential and non-residential uses.

Constructed in the 1980s, Marketplace Center historically
included a grocery store, a pharmacy, banks, restaurants, small
retail stores, and the San Ramon Public Library. In 2019, the
grocery store, Nob Hill Foods, did not renew its lease. TRC
modified a different area of Marketplace Center to add a Trader
Joe’s grocery store.

In 2020, TRC proposed to redevelop a 6.99-acre portion of
its total 12.47-acre parcel at the Marketplace Center. It sought
to demolish the buildings previously occupied by Nob Hill Foods
and several small retailers and to convert that site to 284 housing
units in a new five-story building. Thirty-two of the proposed
units would have been dedicated affordable housing. TRC’s

1Undesignated references to the “Guidelines” are to the
state regulations that implement CEQA. (Cal. Code Regs., tit.
14, § 15000 et seq.)
2
proposal triggered fierce public opposition. Some planning
commissioners expressed concern that the proposal’s height and
large number of units made the design “out of scale” with the
neighborhood. TRC withdrew the proposal.

In 2022, TRC returned with a more modest proposal to
redevelop 3.91 acres of the site. This time, TRC sought to
demolish the former grocery building and to build a smaller,
lower-density mixed-use development—specifically 44 homes (40
single-family detached condominium units and four junior
accessory dwelling units) plus renovation of an existing
Starbucks coffee shop. TRC opted to pay an in-lieu housing fee
instead of dedicating affordable units on the project site.

Counsel for Citizens submitted two letters to the planning
commission opposing the project. The letters asserted that the
project was inconsistent with the general plan’s purported
requirement to prepare a master plan and with mixed-use design
requirements.

In October 2022, Citizens filed a petition for writ of
mandate and declaratory relief (Citizens Against Market Place
Apartment/Condo Development v. City of San Ramon, et al.
(Super. Ct. Contra Costa County, 2022, No. N22-1955)), along
with an ex parte application for a temporary restraining order.
Citizens sought to compel the planning commission to notify TRC
(in writing), before an upcoming deadline imposed by the
Housing Accountability Act (Gov. Code, § 65589.5),2 that the
project is inconsistent with the general plan because TRC had not
prepared a master plan with the owner of an adjacent property.
(See id., subd. (j)(2)(A)(i) [requiring city to notify developer within
30 days if project is inconsistent with certain land use criteria].)

2 Undesignated statutory references are to the Government
Code.
3
The trial court denied Citizens’ request for a temporary
restraining order. City staff notified TRC that the project was
consistent with the relevant objective criteria. After several
public hearings, the planning commission approved the project.

Citizens appealed the decision to the city council. In a
report to the city council, staff analyzed the general plan policies
at issue and concluded that the project was consistent with them.
The city council voted unanimously to deny Citizens’ appeal and
approve the project. In the approved resolution, the City Council
found that the project was consistent with the city’s general plan
and “is a horizontal mixed-use project as defined by applicable
[c]ity standards.” The city also found the project exempt from
review under CEQA because it satisfied the eligibility criteria for
the categorical exemption for in-fill development (Guidelines,
§ 15332).

B.

On April 19, 2023, Citizens filed a second petition for writ
of mandate (Code Civ. Proc., § 1094.5) and declaratory relief
(Citizens Against Market Place Apartment/Condo Development v.
City of San Ramon, et al. (Super. Ct. Contra Costa County, 2023,
No. N23-0770)), which sought to set aside the city’s final project
approval and adoption of a categorical exemption. The two cases
were consolidated.

After briefing and a merits hearing, the trial court denied
both of Citizens’ petitions and entered judgment in favor of the
city and TRC. On the merits, the trial court stated that
substantial evidence supported the city’s consistency findings. It
also rejected Citizens’ CEQA cause of action and awarded costs to
the city.

4
DISCUSSION

A.

Citizens contends the city abused its discretion by
approving the project despite conflicts with the city’s general plan
and zoning ordinance. Specifically, Citizens insists that the city
ignored an allegedly mandatory requirement to prepare a
“master plan” and that the project conflicts with the zoning
ordinance’s “mixed-use” definition. We disagree.

1.

To ensure an effective planning process, cities must adopt a
general plan for development. (§ 65300.) The city’s zoning laws
and land use decisions must be consistent with the general plan.
(§ 65860, subd. (a); Save Lafayette v. City of Lafayette (2022) 85
Cal.App.5th 842, 850.)

General plans are developed in a public process and reflect
a range of competing interests. (Orange Citizens for Parks &
Recreation v. Superior Court (2016) 2 Cal.5th 141, 153-154
(Orange Citizens); Naraghi Lakes Neighborhood Preservation
Assn. v. City of Modesto (2016) 1 Cal.App.5th 9, 17.) General
plans typically state broad policies and goals rather than specific
mandates or prohibitions. (Holden v. City of San Diego (2019) 43
Cal.App.5th 404, 411-412.) State law does not require projects to
completely satisfy every general plan policy—no project could do
so. It falls to city officials to evaluate a proposed project against
the range of competing interests reflected in the general plan.
(Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23
Cal.App.4th 704, 719.) A project is consistent with a general plan
“ ‘ “if, considering all its aspects, it will further the objectives and
policies of the general plan and not obstruct their attainment.” ’ ”
(Orange Citizens, at p. 153.) Similar principles apply to local
officials’ interpretation of their own zoning ordinance. (Anderson

5
First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173,
1193.)

We review the city’s decision, not the trial court’s. (Save
Livermore Downtown v. City of Livermore (2022) 87 Cal.App.5th
1116, 1125; Naraghi Lakes Neighborhood Preservation Assn. v.
City of Modesto, supra, 1 Cal.App.5th at p. 19.) We must be
mindful of intruding on city officials’ “ ‘ “unique competence to
interpret [city] policies” ’ ” when making a “fundamentally
adjudicatory” determination. (Orange Citizens, supra, 2 Cal.5th
at p. 155.) Accordingly, we review the city’s decision approving a
housing project for abuse of discretion, deferring to the city’s
consistency finding “unless no reasonable person could have
reached the same conclusion.” (Ibid.; Save Livermore Downtown,
at pp. 1125-1126.) Citizens bears the burden of demonstrating
the city abused its discretion. (Holden v. City of San Diego,
supra, 43 Cal.App.5th at p. 413.)

2.

First, Citizens argues that the project is inconsistent with
the general plan because the general plan (allegedly) requires
TRC to prepare a “master plan” to redevelop this site.

Citizens is referring to policy 4.6-I-26, which applies to the
entire Marketplace Center site and an adjacent site (Orchard
Supply Center), owned by a separate entity. The policy objective
is stated in discretionary, not mandatory, language: “Encourage
the joint redevelopment of the Marketplace and Orchard Supply
Center sites via the applicant’s preparation of a master plan (a
‘Master Plan’) where made feasible by common or separate
ownerships.” To further this objective, the policy continues: “Any
such Master Plan should focus on facilitating improved
circulation, access, and visibility, as well as encouraging a
broader mix of uses, including residential. Additionally, in the
event of any redevelopment or reconfiguration of either site that
involves the net addition of 10,000 square feet or more of rentable
6
space and/or the introduction of any residential use, a Master
Plan would be required that would contain an analysis of
additional features intended to improve circulation, access, and
visibility, encourage a broader mix of uses, and/or convert
existing uses to residential.”

The policy also indicates that the neighboring Orchard
Supply Center site suffers poor visibility because of its distance
from major roads and states: “As both sites are currently
operated, however, there is currently little incentive for either
property owner to redevelop in the short-term; however, in the
future if key tenants decide to leave and there is an opportunity
for substantial redevelopment or reconfiguration, the intent of
this policy is to require preparation of a coordinated Master Plan
for the area to facilitate improved circulation, access, and
visibility and to broaden the mix of uses on one or both sites in a
way that better supports successful retail at one or both sites.
[¶] This policy also recognizes that as of the date of its adoption,
the two sites are not under common ownership, which would
make a Master Plan difficult. This policy would thus not apply in
the case of tenant improvements or other minor modifications
(including, but not limited to, façade modifications), or any
relocation or replacement of existing rentable square footage for
substantially the same retail purposes, which relocation or
replacement does not add 10,000 square feet or more of rentable
space or residential use to either site.”

The city noted that the general plan does not define the
term “Master Plan.” It found the intent of the master plan policy
was to “ ‘encourage the joint redevelopment’ ” of the two sites and
to “ ‘focus on facilitating improved circulation, access, and
visibility, as well as encouraging a broader mix of uses, including
residential.’ ” The project was compatible with the policy because
the project introduces residential uses to the Marketplace Center
and includes “specific proposals that improve circulation, access,

7
and visibility, both within the Marketplace site and also between
the Marketplace and Orchard Supply Center sites.”

The city did not abuse its discretion. In arguing that the
city misconstrued the policy, Citizens points to the instances
where the general plan uses the term “require” or “required.”
But Citizens largely ignores the policy’s equivocal and
discretionary language. Indeed, the objective itself is merely to
“encourage” joint redevelopment via a master plan “where . . .
feasible.” (See Joshua Tree Downtown Business Alliance v.
County of San Bernardino (2016) 1 Cal.App.5th 677, 696-696
[observing that “encourage” is the sort of amorphous policy term
that gives local officials discretion].) Neither “master plan” nor
“feasible” are defined. The policy acknowledges the reality that,
for several reasons, joint redevelopment may be difficult or may
not occur at all. If redevelopment occurs at one or both sites, the
policy includes (very general) planning goals to improve
circulation, access, and visibility and to “encourage a broader mix
of uses,” including residential. Altogether, the master plan policy
is amorphous and aspirational. If the general plan’s drafters had
intended to state a mandatory requirement, they could easily
have written one. (See, e.g., Orange Citizens, supra, 2 Cal.5th at
p. 156 [city abused its discretion by permitting development on
property the general plan designated as open space, which was
defined unambiguously as “ ‘areas that should not be
developed’ ”].) They did not.

We must take seriously our Supreme Court’s admonition
that planning agencies are uniquely competent when interpreting
their general plans in this context and that courts must defer to
them “unless no reasonable person could have reached the same
conclusion.” (Orange Citizens, supra, 2 Cal.5th at p. 155.)
General plans sometimes do have concrete, unambiguous
requirements. (See, e.g., id. at pp. 156-158.) But, in general,
undefined terms and vague, aspirational language are par for the

8
course. (See, e.g., Olen Properties Corp. v. City of Newport Beach
(2023) 93 Cal.App.5th 270, 277-279 [deferring to city’s
determination that 3.41-acre project was consistent with
undefined concept of 10-acre “residential village”]; Joshua Tree
Downtown Business Alliance v. County of San Bernardino, supra,
1 Cal.App.5th at pp. 696-698 [deferring to local discretion to
interpret amorphous “policy of encouraging and supporting small
independent businesses”].) General plans reflect conflicting
interests and an arduous public drafting process. Determining
project consistency is, by design, nearly always an exercise of
discretion: the city’s job is to interpret the language, weigh and
balance the various policies and interests reflected in it, and
determine whether, overall, the project is compatible with, and
does not frustrate, the general plan. (See Orange Citizens, at pp.
153-154; Bankers Hill 150 v. City of San Diego (2022) 74
Cal.App.5th 755, 776; San Franciscans Upholding the Downtown
Plan v. City and County of San Francisco (2002) 102 Cal.App.4th
656, 677-678.)

In this case, the city was given a proposal that addresses
all of the general plan’s substantive objectives, albeit not
packaged in a master plan. The project would redevelop part of
an aging strip mall into housing, which is an explicit goal of the
general plan. It includes features—such as demolition of vacant
buildings and construction of new driveways, pedestrian
crosswalks, and sidewalks—that address the general plan’s
objectives to improve circulation, access, and visibility within the
Marketplace Center site as well as the neighboring commercial
site. The city thus concluded that, overall, the project is
consistent with the general plan. Citizens fails to persuade us
that no reasonable person could agree.

9
3.
Citizens fares no better with its challenge to the city’s
conclusion that the project is properly deemed horizontal mixed
use.

In the general plan, a mixed use classification applies to
“[i]ntegrated mix of residential and non-residential uses—retail,
service, office . . . . Types of mixed use development should
consider both vertical and horizontal opportunities to provide a
compatible mix of land uses consistent with the policies of the
[g]eneral [p]lan. Vertical mixed use is characterized as multi-
story buildings with uses such as residential or office uses over
more active ground floor pedestrian-oriented commercial, service
or retail uses. Horizontal mixed use includes the same diversity
of uses, but may not be constructed in a vertical configuration.
Under a horizontal mixed use configuration, a project may have a
commercial street frontage with other residential or office uses
set to the back of the project site while still maintaining the
overall mix of compatible uses.” (Italics added.)

The zoning ordinance also states that a “mixed use project
shall comply with the following requirements[:] A mixed use
project combines a mix of uses on the same site. In the CCMU
and MU zones, the residential units of mixed use projects are
typically located above the nonresidential uses (vertical mixed
use), but horizontal mixed use may be allowed which provides
residential at ground level behind street-fronting nonresidential
uses.” (Italics added.)

Citizens argues that the project cannot be “horizontal
mixed use” because its residential component is not located
“behind” its nonresidential component (Starbucks), which it also
insists is not “street-fronting.”

Here, the project site abuts three streets, one of which
(Market Place) forms a wavy 90-degree angle. If one were to

10
stand on Alcosta Boulevard or on the eastern portion of Market
Place, in front of the Starbucks, the residential portion of the
project is behind the Starbucks and other non-residential uses
(the remaining Marketplace Center retail establishments, which
TRC has not included within the scope of the project). And the
maps in the record show the non-residential portion of the project
(Starbucks), as well as the other retail establishments at
Marketplace Center, are all street-fronting. On the other hand, if
one were to stand on the west end of Market Place, some of the
residences face the street, with Starbucks situated behind them.

Consistency in this instance is, again, precisely the sort of
policy interpretation that courts leave to city officials. On the
substantial evidence we have just summarized, a reasonable
person could find the project consistent with the general plan and
zoning ordinance.

We need not reach the parties’ additional arguments. With
respect to the Housing Accountability Act (§ 65589.5), we note
that the city approved the project after finding it consistent with
the general plan policies discussed above. Because we have
upheld the consistency findings, we need not also determine
whether, hypothetically, the Housing Accountability Act would
have barred the city from denying or conditioning the project.
(See Save Livermore Downtown v. City of Livermore, supra, 87
Cal.App.5th at pp. 1125-1126.)

B.

Citizens contends the city abused its discretion in
concluding the project is exempt from CEQA review. (Guidelines,
§ 15332; Protect Tustin Ranch v. City of Tustin (2021) 70
Cal.App.5th 951, 960 [standard of review].) We disagree.

With limited exceptions, CEQA requires preparation of an
EIR before a public agency approves or carries out a project that
may have a significant effect on the environment. (Sierra Club v.

11
County of Fresno (2018) 6 Cal.5th 502, 511–512, 523; Pub.
Resources Code, § 21151.) Categorical exemptions define classes
of projects that, by regulation, the Secretary of the Natural
Resources Agency has determined do not have a significant effect
on the environment. (Berkeley Hillside Preservation v. City of
Berkeley (2015) 60 Cal.4th 1086, 1092; Pub. Resources Code, §
21084; Guidelines, § 15300.) By statute, CEQA does not apply to
the projects within the exempt categories. (Pub. Resources Code,
§ 21080, subd. (b)(9).)

The city determined the project is exempt from CEQA
review under the categorical exemption for in-fill development,
which applies to projects that meet, inter alia, the following
criteria: “(a) The project is consistent with the applicable general
plan designation and all applicable general plan policies as well
as with applicable zoning designation and regulations. [¶] . . .
¶ Approval of the project would not result in any significant
effects relating to traffic, noise, air quality, or water quality.”
(Guidelines, § 15332.)

First, Citizens argues that the project is inconsistent with
“applicable general plan policies” or “applicable zoning
designation and regulations.” (Guidelines, § 15332, subd. (a).)
We reject this argument because, as our prior discussion shows,
substantial evidence supports the city’s findings that the project
was consistent with the general plan and zoning policies at issue.
(See Stop Syar Expansion v. County of Napa (2021) 63
Cal.App.5th 444, 462 [inconsistency analysis is no different for
CEQA purposes than it is for general planning and land use
purposes].)

Second, Citizens argues that substantial evidence does not
support the city’s conclusion that the project would have no
significant traffic impacts. (Guidelines, § 15332, subd. (d);
Banker’s Hill, Hillcrest, Park West Community Preservation
Group v. City of San Diego (2006) 139 Cal.App.4th 249, 269

12
(Banker’s Hill) [traditional substantial evidence standard of
review applies].) The record contains two expert traffic analyses,
which show significant decreases in trips and vehicle miles
travelled. Citizens concedes that one of the analyses calculates
the reduction of driving caused by the proposed changes to land
use—from retail to residential—and that this reduction includes
fewer shopping trips to Nob Hill Foods. But Citizens makes a
narrow argument that the analysis should have analyzed what it
calls diversionary trips, i.e., additional miles travelled by former
Nob Hill Foods shoppers who would now travel significantly
further to shop elsewhere.

We are not persuaded. In addition to the Trader Joe’s,
there are five other grocery stores within two miles of the Nob
Hill Foods site. Citizens offers only speculation that shoppers
would drive significantly further to buy groceries, and it makes
no effort to quantify the purported increase and demonstrate it
would be material. (See Upland Community First v. City of
Upland (2024) 105 Cal.App.5th 1, 36 [rejecting unsupported
claim that traffic analysis was materially incomplete]; Banker’s
Hill, supra, 139 Cal.App.4th at p. 274 [“although local residents
may testify to their observations regarding existing traffic
conditions, ‘in the absence of a specific factual foundation in the
record, dire predictions by nonexperts regarding the
consequences of a project do not constitute substantial evidence’
”], some italics omitted; see also Jensen v. City of Santa Rosa
(2018) 23 Cal.App.5th 877, 894 [nonexpert opinions do not
constitute substantial evidence where expertise is needed].)

The city’s finding that the project will not result in
significant traffic effects is supported by substantial evidence,
including the expert traffic analyses. (See Banker’s Hill,

13
Hillcrest, supra, 139 Cal.App.4th at pp. 269, 273.) We need not
address Citizens’ additional CEQA arguments.3

C.

Lastly, Citizens challenges the trial court’s award to the
city of $38,568.62 in record preparation costs. Citizens suggests
that the city cannot recover those costs because Citizens itself
elected to prepare the record pursuant to Public Resources Code
section 21167.6, subdivision (b)(2). Citizens also argues the

3 We summarily reject Citizens’ argument that the city
effectively approved the project, for CEQA purposes, early in the
planning process when the planning commission notified TRC, in
compliance with a process set by the Housing Accountability Act,
that the application was not inconsistent with the city’s objective
standards. Citizens forfeits this startling assertion by failing to
present a comprehensible and reasoned argument explaining how
the authority it cites furthers its position. (See Benach v. County
of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
In one instance, in its opening brief, Citizens goes so far as
to attribute a quotation to Schellinger Brothers v. City of
Sebastopol (2009) 179 Cal.App.4th 1245 that does not exist in
that opinion. We caution Citizens’ counsel that similar conduct
in the future could be cause for sanctions. (See Rules Prof.
Conduct, rule 3.3(a)(2) [counsel shall not “knowingly misquote to
a tribunal the language of a book, statute, decision or other
authority”]; Cal. Rules of Court, rules 8.204(a)(1)(B) [each point
must be supported by legal authority], 8.276(a)(4) [appellate
courts may impose sanctions against appellate counsel for
committing any unreasonable violation of Rules of Court];
Noland v. Land of the Free, L.P. (2025) 114 Cal.App.5th 426, 445
[“it is a fundamental duty of attorneys to read the legal
authorities they cite in appellate briefs or any other court filings
to determine that the authorities stand for the propositions for
which they are cited”]; see also Bus. & Prof. Code, § 6068, subd.
(d) [attorney’s duty “never to seek to mislead the judge or any
judicial officer by an artifice or false statement of fact or law”].)
14
amount of the award is excessive in several respects. We
disagree on the former point and deem the latter point forfeited.

1.

Approximately three months after the second petition was
filed, and after the city had spent significant labor hours
preparing the underlying documents and estimated a cost of
$45,000 to $55,000 for it to prepare the administrative record,
Citizens notified the city that Citizens would prepare the
administrative record itself. The city provided Citizens with
copies of the documents and Citizens compiled an administrative
record totaling 16,287 pages.

Although it is not in the record before us, the parties agree
that the city filed a memorandum of costs, in which it sought
recovery of $51,967.62 in costs it incurred in preparing the
administrative record. Citizens filed a motion to tax costs,
arguing, among other things, that the city’s costs for preparation
of the administrative record were inflated and unreasonable.
After a hearing, the trial court granted Citizens’ motion in part
and denied it in part; the court ordered Citizens to pay the city
$38,568.62 for costs found to be “reasonable.”

2.

In general, and except as otherwise provided by statute, a
prevailing party is entitled to recover costs. (Code Civ Proc., §
1032, subd. (b); see Chaparral Greens v. City of Chula Vista
(1996) 50 Cal.App.4th 1134, 1151-1152.) Code of Civil Procedure
section 1094.5, referenced in Citizens’ second writ petition,
further provides that, except when otherwise prescribed by
statute, the cost of preparing the record shall be borne by the
petitioner. (Id., subd. (a).) If an expense associated with
preparation of the record has been borne by the prevailing party,
the expense shall be recoverable as costs. (Ibid.; The Otay Ranch,

15
L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, 67-72
(Otay Ranch).)

Public Resources Code section 21167.6 governs the
preparation and certification of the administrative record in a
CEQA case. Under Public Resources Code section 21167.6 and
Code of Civil Procedure sections 1032 and 1094.5, Citizens must
pay any reasonable costs the city actually incurred associated
with the preparation of the administrative record. (Pub.
Resources Code, § 21167.6, subds. (b)(1)(A) [“[t]he parties shall
pay any reasonable costs or fees imposed for the preparation of
the record of proceedings in conformance with any law or rule of
court”], (f) [“the party preparing the record of proceedings shall
strive to do so at reasonable cost in light of the scope of the record
of proceedings”]; Otay Ranch, supra, 230 Cal.App.4th at p. 67;
Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145
Cal.App.4th 765, 774 [“the prevailing party in a CEQA
proceeding . . . may recover as costs the amounts it reasonably
and necessarily incurred in preparing the [record of
proceedings]”].)

Public Resources Code section 21167.6 authorizes a writ
petitioner to prepare the administrative record itself instead of
asking the public agency to prepare it. (Pub. Resources Code,
§ 21167.6, subd. (b)(2); River Valley Preservation Project v.
Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154,
180, fn. 31.) But the fact that Citizens elected to prepare the
record, pursuant to Public Resources Code section 21167.6,
subdivision (b)(2), does not mean the city had no recoverable costs
associated with preparation of the administrative record. To the
extent Citizens is asserting that the city is precluded from
receiving an award of record preparation costs as the prevailing
party, it is simply wrong. (See St. Vincent’s School for Boys,
Catholic Charities CYO v. City of San Rafael (2008) 161
Cal.App.4th 989, 1014, 1016-1017, 1019.)

16
Labor costs (of both public employees and retained
attorneys) incurred to prepare an administrative record are
recoverable under Public Resources Code section 21167.6, subject
to trial court review for necessity and reasonableness. (Code Civ.
Proc., § 1033.5, subd. (c); Otay Ranch, supra, 230 Cal.App.4th at
pp. 67-70 [rejecting argument that compensation for time spent
by retained attorney and paralegals was abuse of discretion and
amounted to award of attorney fees when trial court found it was
reasonably necessary to incur such costs]; River Valley
Preservation Project v. Metropolitan Transit Development Bd.,
supra, 37 Cal.App.4th at pp. 180-182 [labor costs of public
employees are recoverable; “interpretation . . . allowing
reimbursement for only photocopying and transcription costs
would defeat the purpose of the statute by shifting the financial
burden to the public agency preparing the record”].) “ ‘Whether a
particular cost to prepare an administrative record was necessary
and reasonable is an issue for the sound discretion of the trial
court.’ ” (Otay Ranch, at p. 68.) The appellants bear the burden
of demonstrating an abuse of discretion. (Ibid.)

Citizens cannot meet that burden here. Citizens has not
included the city’s memorandum of costs, which categorizes the
various costs sought, in the appellate record. Instead, it cites the
parties’ briefs filed below.4 Thus, Citizens cannot demonstrate an
abuse of discretion in the amount of costs the trial court awarded
because it fails to provide an adequate record for review. (Hotels

4 About a week before oral argument (after we had issued
our tentative opinion), the parties filed a “stipulation to submit
memorandum of costs.” We construed this filing as a motion to
augment the record, which we denied as untimely. (See Cal.
Rules of Court, rule 8.155(a)(1)(A); Ct. App., First Dist., Local
Rules of Ct., rule 4(c) [“[a]ppellant should file any [request to
augment a record] . . . no later than 30 days after the record has
been filed in this court”]; People v. Preslie (1977) 70 Cal.App.3d
486, 492.)
17
Nevada, LLC v. L.A. Pacific Center (2012) 203 Cal.App.4th 336,
348 [“ ‘[f]ailure to provide an adequate record on an issue
requires that the issue be resolved against appellant’ ”].)

Absent an adequate record, we must presume that the trial
court’s necessity and reasonableness determinations were correct.
(See Osgood v. Landon (2005) 127 Cal.App.4th 425, 435 [if an
appellant asserts an error on only a partial record, and the
missing part of the record could provide grounds for affirming the
judgment, the appellate court will affirm the judgment].)

DISPOSITION

The judgment and post-judgment order denying in part
Citizens’ motion to tax costs are affirmed. Respondents shall
recover their costs on appeal. (Cal. Rules of Court, rule
8.278(a)(1), (a)(2).)

BURNS, J.
WE CONCUR:

JACKSON, P.J.
SIMONS, J.

Citizens Against Marketplace Apartment / Condo Development v. City of San Ramon
et al. (A170988/A172221)

18
Superior Court of Contra Costa County, Nos. N22-1955 and N23-
0770, The Hon. Danielle K. Douglas, Judge.

Greenfire Law, PC, Jessica L. Blome and Ariel S. Strauss, for
Plaintiff and Appellant.

Burke, Williams & Sorensen, LLP, Nicholas J. Muscolino, Eric S.
Phillips and Connor T. MacLean, for Defendant and Respondent.

Perkins Coie, Julie Jones, for Real Party in Interest.

19