Golden Door Props., LLC v. Superior Court of San Diego Cnty.

• Decision Date: 30 July 2020
• Docket Number: D076605, D076924, D076993
• Citation: 53 Cal.App.5th 733,267 Cal.Rptr.3d 32
• Court: California Court of Appeals Court of Appeals
• Parties: GOLDEN DOOR PROPERTIES, LLC, et al., Petitioners, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; County of San Diego et al., Real Parties in Interest

53 Cal.App.5th 733

267 Cal.Rptr.3d 32

GOLDEN DOOR PROPERTIES, LLC, et al., Petitioners,

v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;County of San Diego et al., Real Parties in Interest

D076605, D076924, D076993

Court of Appeal, Fourth District, Division 1, California.

Filed July 30, 2020

As Modified on Denial of Rehearing August 25, 2020

Latham & Watkins, Christopher W. Garrett, Daniel Brunton and Emily Haws, San Diego, for Petitioners Golden Door Properties LLC, California Native Plant Society, Hidden Valley Zen Center, Friends of Hidden Valley Zen Center, Buena Creek Action Group, Deer Springs Oaks Action Group, Twin Oaks Valley Road Action Group, Lisa Amantea, Michael Amantea, Darryl C. Bentley, Carol Bryson, Pamela J. Diniz, Stanley Diniz, Francis J. Eason, Rebecca Engel, Thomas Engel, Donald J. Folse, Elsie E. Gregory, Georgann Higgins, Claudia Hunsaker, Karen May, BJ McIntire, Cindi Peterson, Ana Cl Rosavall, James T. Rosvall, Katherine B. Rosvall, Leigh Rayner, Joanne Rizza, Darla Kennedy, and William R. Young.

Chatten Brown Carstens & Minteer, Jan Chatten-Brown, Santa Monica, and Josh Chatten-Brown, Hermosa Beach, for Petitioner Sierra Club.

Shute, Mihaly & Weinberger, William J. White and Edward Schexnayder, San Francisco, for Petitioner Endangered Habitats League.

John Buse, Aruna Prabhala and Peter Broderick, San Francisco, for Petitioner Center for Biological Diversity.

Law Offices of Roger B. Moore and Roger B. Moore for California Water Impact Network as Amicus Curiae on behalf of Petitioners.

Law Offices of Thomas N. Lippe and Thomas N. Lippe, San Francisco, for Save Berkeley's Neighborhoods as Amicus Curiae on behalf of Petitioners.

First Amendment Project, James R. Wheaton, Oakland, and Paul Clifford for Natural Resources Defense Council, The First Amendment Project, Electronic Frontier Foundation, Californians Aware, Planning and Conservation League Foundation, and Environmental Law Foundation as Amici Curiae on behalf of Petitioners.

No appearance by Respondent.

Thomas E. Montgomery, County Counsel, Joshua M. Heinlein, Senior Deputy County Counsel; Sheppard, Mullin, Richter & Hampton, John E. Ponder, Whitney A. Hodges and Karin Dougan Vogel, San Diego, for Real Party in Interest County of San Diego.

Gatzke Dillon & Ballance, Mark J. Dillon, Kevin P. Sullivan, San Diego, and Kimberly A. Foy, Cardiff, for Real Party in Interest Newland Sierra, LLC.

Best, Best & Krieger, Michelle Ouellette and Amy Hoyt, Riverside, for Real Party in Interest Dudek & Associates, Inc.

Byron & Edwards, Michael M. Edwards and Zachary M. Lemley, Carlsbad, for Real Parties in Interest Linscott, Law & Greenspan and Fehr & Peers.

Schwartz, Semerdjian, Cauley & Moot and Owen M. Praskievicz, San Diego, for Real Party in Interest Development Planning and Financing Group.

Chen, Horowitz & Franklin and Alexander J. Chen, Los Angeles, for Real Party in Interest Fuscoe Engineering.

Tyson & Mendes and Mitchel B. Malachowski for Real Party in Interest T.Y. Lin International Group.

Koenig Jacobsen and Gary L. Jacobsen, San Diego, for Real Party in Interest Leighton & Associates.

Motschenbacher & Blattner and Jeremy G. Tolchin for Real Party in Interest GSI Water Solutions, Inc.

Christopher Perez for Real Party in Interest AECOM.

Judkins, Glatt & Rich and David H. Getz for Real Party in Interest John Burns Real Estate Consulting.

Jennifer B. Henning for California State Association of Counties, League of California Cities, and California Special Districts Association as Amici Curiae on behalf of Real Party in Interest County of San Diego.

McCONNELL, P. J.

Public Resources Code ¹ section 21167.6 prescribes the documents that "shall" be in the record of proceedings in a CEQA² challenge to an environmental impact report (EIR). For example, under subdivision (e)(7) of that statute, "[a]ll written evidence or correspondence submitted to, or transferred from" the public agency with respect to the project "shall" be included. Under subdivision (e)(10), the record "shall" also contain "all internal agency communications, including staff notes and memoranda" related to the project.

However, in this case the County of San Diego (County), as lead agency for the Newland Sierra project, no longer had "all" such correspondence, nor all "internal agency communications" related to the project. If those communications were by e-mail and not flagged as "official records," the County's computers automatically deleted them after 60 days. When project opponents propounded discovery to obtain copies of the destroyed e-mails and related documents to prepare the record of proceedings, the County refused to comply.

After referring the discovery disputes to a referee, the superior court adopted the referee's recommendations to deny the motions to compel. The referee concluded that although section 21167.6 specifies the contents of the record of proceedings, that statute does not require that such writings be retained. In effect, the referee interpreted section 21167.6 to provide that e-mails encompassed within that statute are mandated parts of the record—unless the County has destroyed them first.

We disagree with that interpretation. Preparing a record under section 21167.6 is not an end in itself, but rather the means for judicial review of CEQA determinations. A thorough record is fundamental to meaningful judicial review. Therefore, we hold that section 21167.6 requires the lead agency to retain such writings.

Moreover, in this case, to the extent the writings sought are encompassed within section 21167.6, subdivision (e), they are "official records" under the County's e-mail retention policies. Thus, the County should not have destroyed such e-mails, even under its own policies.

The referee's erroneous interpretation of section 21167.6 is the cornerstone for all the challenged rulings. Accordingly, we will order a writ of mandate issue directing the superior court to vacate its orders denying the motions to compel and after receiving input from the parties, reconsider those motions in light of this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties and the Project

Golden Door owns a spa and resort on approximately 600 acres in San Diego County. In January 2015, Newland Sierra LLC (Newland) proposed 2,135 new residential units and 81,000 square feet of commercial development (the Project) in close proximity to Golden Door's property. The County is lead agency for the Project.

B. Golden Door's April 2014 Opposition to the Project

In 2009, the County rejected a proposed development (known as Merriam Mountains) for the Project site. Golden Door had opposed Merriam Mountains because of its environmental impacts. Asserting that Newland's Project was "similar to the Merriam Mountains project that the Board of Supervisors rejected," in April 2014 Golden Door's attorneys wrote to the County, expressing concerns that the Project would create significant traffic and noise impacts, increase greenhouse gas emissions from greater vehicle miles traveled, violate the County's General Plan, impact biological resources, overextend the area's water supply, and create "noise and vibration from the many years of blasting that will be required to ‘blast’ the mountains as each phase of the project is constructed ...." The letter states these impacts "would significantly harm the Golden Door's business" and "construction of the Project could mean the end of the Golden Door," which had been operating since 1958. The letter ends by stating that Golden Door had "retained expert consultants" and would "continue to oppose the Project."

C. The First Lawsuit—December 2016

In December 2016—years before the Project EIR was certified—Golden Door filed a superior court petition for a writ of mandate and complaint for injunctive relief against Vallecitos Water District, the County, and Newland, entitled Golden Door Properties, LLC v. Vallecitos Water District et al. (Super. Ct. San Diego County, 2016, No. 37-2016-00037559-CU-WM-NC, hereafter the "Vallecitos case"). Generally speaking, the complaint alleges that the water district will not have "sufficient water supply to serve the Newland Project," and the Project will adversely affect groundwater.³

D. Golden Door's Public Records Requests

In June 2017, the County released the Project's draft EIR (DEIR). The following month, Golden Door submitted a Public Records Act ( Gov. Code, § 6250 et seq. ; PRA) request to the County for the DEIR's technical analyses. Claiming that only the EIR consultants had possessory rights to these documents, the County refused production.

In October 2017, Golden Door's attorneys submitted another PRA request to the County, seeking contracts the County relied on to claim that the consultants alone had possessory rights to the technical reports. Days later, Golden Door's attorneys "clarified" that this PRA request encompassed " ‘all documents and communications in the County's possession ... pertaining to [the Project].’ "

The Project's environmental review had been ongoing for nearly three years; however, in response to these PRA requests the County produced only 42 e-mails, covering only the 60-day period from September through October 2017. Golden Door's attorneys asked the County to explain how the Project could have generated only 42 e-mails. County counsel explained the County had a "60-day auto-deletion program for e-mails that do not meet the criteria for an official record."

Plaintiffs' attorneys received no response to their follow-up question, " ‘Simply put, where are the e-mails from early 2015 to September 2017?’ " They believed "that the County had destroyed all e-mail correspondence related to the [Project's] environmental review prior to September 2017."

E. The County's 60-Day Automatic Deletion of E-mail Policy, in General

Effective June 2008, County Administrative Manual item 0040-09-01 provides that after 60 days, "e-mail messages will be deleted automatically."⁴ Effective June 21, 2018, item 0040-11...