Motion for Protective Order
John Borst v. City of El Paso de Robles, 25CVP-0159
Hearing: Motion for Protective Order
Date: May 26, 2026
On May 7, 2025, John Borst filed a petition for writ of mandate and complaint naming the City of El Paso de Robles and the County of San Luis Obispo as respondents/defendants. Borst alleges the franchise fee component of the solid waste rates adopted by the City in January 2025, constitutes an illegal tax in violation of Proposition 218. All three causes of action are based on that allegation. The writ portion of the pleading seeks relief pursuant to Code of Civil Procedure section 1085.
On September 23, 2025, Petitioner served written discovery on the City. The City responded by filing the present motion for protective order. The City seeks to preclude the current outstanding discovery as well as “any other future, extra-record discovery.” (Mtn., p. 10, l. 9.)
Extra-record “evidence is generally not admissible to challenge quasi-legislative decisions ....” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 565, 578-579 [may be allowed in unusual circumstances or for very limited purposes but never to contradict the evidence relied on by the agency in making a quasi-legislative decision]; see also Alameda Health System v. Alameda County Employees’ Retirement Assn. (2024) 100 Cal.App.5th 1159, 1185 [permitting admission of extra-record evidence would infringe upon the separation of powers].)
In a mandamus action arising under Code of Civil Procedure section 1085, judicial review is limited to an examination of the proceedings before the agency to determine whether its actions have been arbitrary, or capricious, entirely lacking in evidentiary support or whether it failed to follow proper procedures or failed to give notice as required by law. [Citations.]
(Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1340
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Borst argues that deferential standard of review does not apply to Proposition 218 cases in which the court exercises an independent review regarding the constitutionality of the challenged fee. (Scott v. County of Riverside (2025) 112 Cal.App.5th 265, 275.) Borst argues “the reasons for limiting discovery in most challenges to quasi-legislative [decisions] ... are simply not present here.” (Opp., p. 16, ll. 13-15.) Borst, however, does not sufficiently explain how the information sought by the propounded discovery is relevant to, or likely to lead to admissible evidence addressing, the legal question of whether the franchise fee is an unconstitutional tax.
The Court agrees with the City that under the circumstances the best process is for the City to prepare and serve the administrative record, and then for the parties to meet and confer regarding any documents which have not been included as well as the breadth of the outstanding discovery.
The Court intends to continue this discovery motion to allow the parties to proceed accordingly. In its July 1, 2025 filing, the City reported the administrative record would be complete no later than August 31, 2025. The administrative record has not yet been submitted. The City should come prepared to set a deadline for the administrative record.
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