Ceres v. Superior Court of Stanislaus Cnty.

• Decision Date: 08 July 2013
• Docket Number: F065690
• Citation: 217 Cal.App.4th 889,159 Cal.Rptr.3d 789
• Court: California Court of Appeals Court of Appeals
• Parties: CITIZENS FOR CERES, Petitioner, v. The SUPERIOR COURT of Stanislaus County, Respondent; City of Ceres et al., Real Parties in Interest.

217 Cal.App.4th 889

159 Cal.Rptr.3d 789

CITIZENS FOR CERES, Petitioner,

v. The SUPERIOR COURT of Stanislaus County, Respondent;City of Ceres et al., Real Parties in Interest.

F065690

Court of Appeal, Fifth District, California.

Filed July 8, 2013

Certified for Partial Publication.^*

See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 857.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Hurl W. Johnson III, Judge. (Super. Ct. No. 670117)

Herum Crabtree, Brett S. Jolley and Natalie M. Weber, Stockton, for Petitioner.

No appearance for Respondent.

Michael L. Lyions, City Attorney; Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni and Edward Grutzmacher, Oakland, for Real Party in Interest City of Ceres.

K & L Gates, Edward P. Sangster, San Francisco, for Real Parties in Interest, Wal–Mart Stores, Inc., and Wal–Mart RealEstate Trust.

Jennifer B. Hennings for California State Association of Counties and League of California Cities as Amici Curiae on behalf of Respondents, City of Ceres, Wal–Mart Stores, Inc., and Wal–Mart Real Estate Trust.

OPINION

Wiseman, Acting P.J.

This case involves a challenge under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) ¹ (CEQA) to a decision by the City of Ceres (city) to grant approvals necessary to build a shopping center anchored by a Wal–Mart store. The challenger, Citizens for Ceres, has petitioned this court for writ relief from the trial court's order upholding claims by the city and the developer that hundreds of documents be excluded from the administrative record because they are protected by the attorney-client privilege or the attorney work-product doctrine.

The dispute over these documents arose when the challengers pointed out that the administrative record prepared and certified by the city included no communications between the city and the developer. The city responded that the project had “the potential to be controversial”; that such communications therefore “were always made by and between legal counsel” for the city and the developer; and consequently all the communications were privileged. The challenger filed a motion to augment the administrative record by compelling the city to include the assertedly privileged communications. The trial court denied the motion, leading to these writ proceedings.

We reject the challenger's argument that CEQA's provisions defining the administrative record abrogate the attorney-client privilege and the attorney work-product doctrine. Those CEQA provisions do not reflect an intent on the part of the Legislature to eliminate privileges wholesale.

We conclude, however, that the common-interest doctrine, which is designed to preserve privileges from waiver by disclosure under some circumstances, does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to approval of the project. This is because, when environmental review is in progress, the interests of the lead agency and a project applicant are fundamentally divergent. While the applicant seeks the agency's approval on the most favorable, least burdensome terms possible, the agency is duty bound to analyze the project's environmental impacts objectively. An agency must require feasible mitigation measures for all significant impacts and consider seriously and without bias whether the project should be rejected if mitigation is infeasible or approved in light of overriding considerations.

The applicant and agency cannot be considered to be advancing any shared interest when they share legal advice at the preapproval stage. Under established principles, this means that the common-interest doctrine does not apply. After approval, by contrast, the agency and applicant have a united interest in defending the project as approved, and privileges are not waived by disclosures between them from that time onward. In making this distinction between preapproval and postapproval disclosures, we potentially disagree with California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217, 1222–1223, 94 Cal.Rptr.3d 902 (California Oak ), in which the court found the common-interest doctrine to be applicable to postapproval disclosures between an applicant and a lead agency and perhaps also to preapproval disclosures between them. We will grant writ relief to allow the trial court to apply the rule we have stated.

In the unpublished portion of the opinion, we consider several additional topics. First, we discuss the showing necessary to establish the common-interest doctrine's protection for any postapproval communications for which it may be claimed. Second, there are many other assertedly privileged documents that were not disclosed between the city and the developer. It will still be necessary for the trial court to reexamine those privilege claims because the court applied an incorrect standard in upholding them. In upholding all the challenged privilege claims without exception, the court expressed the view that the party asserting a claim of privilege need only assert it to obtain protection. In reality, the party asserting the privilege is required to make a showing of preliminary facts supporting the privilege. The court made no findings of these preliminary facts, and there is no substantial evidence in the record that would have supported those findings for any document. The city will be permitted to amend its submissions to make the necessary showings.

Next, some of the assertedly privileged documents are also claimed by the city to be excludable from the administrative record because they are “drafts” within the meaning of section 21167.6, subdivision (e)(10). The parties have a dispute over the scope of this exclusion. More broadly, the city argues that, even if none of the documents at issue are protected by privileges, they all belong to a phase of the environmental review that is excluded from the administrative record. This argument is based on a reading of section 21167.6, subdivision (e)(10), which, we conclude, it is unnecessary for us to rule upon in these writ proceedings. The trial court has not yet made any ruling on the subject and should do so in the first instance if necessary.

Finally, we reject four arguments for denying writ relief which are based on the allegations that: (1) the challenger forfeited most of its challenges to the privilege claims by not presenting them properly in the trial court; (2) the challenger has not made a showing of prejudice; (3) the challenger failed to exhaust administrative remedies; and (4) the writ petition in this court is defective in form.

We issue a writ of mandate requiring the trial court to reconsider the claims of privilege in light of the holdings in this opinion.

FACTUAL AND PROCEDURAL HISTORIES

Real parties in interest Wal–Mart Stores, Inc. and Wal–Mart Real Estate Trust (the developer) applied to the city for land-use approvals necessary to build a 300,000–square–foot shopping center anchored by a 200,000–square–foot Wal–Mart store. On September 12, 2011, the city certified an environmental impact report (EIR) and approved the project. The challenger initiated proceedings in the superior court, claiming the city failed to comply with CEQA.

After the city prepared a draft index for the administrative record, the challenger sent a letter to the city, stating:

“The index ... does not appear to include a single informal communication (such as [an] email or memo) between the agency and its consultants or the applicant. In my experience representing applicants as well as my experience with CEQA administrative records, there are typically lengthy communications between the applicant and the agency in this form and these are appropriately included in the record.... Yet the index is completely devoid of such communications or notes. In fact, it does not appear the agency staff/consultant e-mail accounts were reviewed for Communications related to this matter. Please explain whether this is an oversight that will be corrected or a deliberate omission. [¶] If the latter, please explain the basis for the omission and if claimed for reasons of privilege, please provide a privilege log or similar device....”

Counsel for the city answered in a letter stating that the omissions of communications between the city and the developer were deliberate and based on privilege. The city had deliberately structured all communications to be privileged because it anticipated that the project would be controversial and could lead to litigation, and that the city had no intention of providing any information at all about the withheld documents:

“From the very earliest stages of the City's consideration of this project, it was clear that the project had the potential to be controversial and that there was a relatively high risk of litigation. Thus, from the very earliest stages of the City's consideration of the project, both the City and the project applicant retained legal counsel to assist with, and oversee compliance with CEQA and all other relevant laws and regulations. Communications, therefore were always made by and between legal counsel. These communications are protected from disclosure by the attorney-client privilege, the [attorney work-product] doctrine, the legislative privilege, the joint defense privilege, and, potentially, other privileges and protections. CEQA does not require the City to include any such privileged or protected documents in the administrative record or to waive any of these protections and privileges in preparing an administrative record. CEQA also does not require the preparation of a privilege log, as you have requested, and the City will not provide any such privilege log.”

On December 19, 2011, the city certified the administrative record without including any of these communications.

The challenger filed an objection to the certification of the record because of...