Golden Door Props., LLC v. Superior Court

• Decision Date: 30 July 2020
• Docket Number: D076993,D076924,D076605
• 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.
• Court: California Court of Appeals

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 APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

July 30, 2020

CERTIFIED FOR PUBLICATION

ORDER MODIFYING OPINION; DENYING PETITIONS FOR REHEARING; AND GRANTING REQUESTS FOR JUDICIAL NOTICENO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on July 30, 2020 be modified as follows:

1. On page 5, last line, delete "Newland Real Estate Group, LLC" and replace it with "Newland Sierra LLC".

2. On page 13, in existing footnote 10, insert the following after the first sentence:

The County contends it ultimately "certified a CEQA administrative record . . . comprised of more than 223,000 pages containing over 6,000 emails and attachments."

3. On page 14, insert a new footnote after the last word of the last paragraph as follows. This will require renumbering of all subsequent footnotes:

The County contends that LL&G and Dudek produced to the County all e-mails between themselves and the County, and that the County ultimately included them in the administrative record. To the extent Plaintiffs dispute this assertion, it is an issue for the trial court to resolve on remand.

4. On page 26, in footnote 17, insert the following at the beginning of the footnote:

In a rehearing petition, the County insists that it has never claimed it may destroy e-mails described in section 21167.6. However, by asserting that section 21167.6 "does not mandate document retention" and that Government Code section 26205.1 allows it to destroy records "not expressly required by law to be . . . preserved"—this is precisely the County's position.

5. On page 44, delete the existing footnote 25 and replace it with the following footnote 25:

Although Golden Door's writ petitions cite section 26202, for the first time in the reply brief Plaintiffs develop a different and extensive argument that Government Code section 26202, when considered with Government Code sections 26205 and 26205.1, requires the County to retain records for a two-year minimum. However, because Plaintiffs' three writ petitions omit this argument and, in fact, none cites section 26205, we decline to consider the point.

6. On page 49, insert a new footnote at the end of the first full paragraph as follows, which will require renumbering of subsequent footnotes:

In a rehearing petition, the County contends that some of these documents were already in the record or pertained to other projects. However, Golden Door points out that one such document was in the record only because "Golden Door attached the salvaged email to its own comment letters after obtaining a copy from Fish and Wildlife." Moreover, the "other project" is a related one for a proposed freeway interchange at Interstate 15/Deer Springs Road. Golden Door's property is located in a valley containing the Deer Springs Valley, west of Interstate15. This freeway interchange project is also the subject of Golden Door's PRA requests. In any event, even the County concedes in its rehearing petition that the e-mail containing the U.S. Fish and Wildlife Service's views was not included in the County's production.

In its rehearing petition, Newland makes similar contentions, asserting that each of the Fish and Wildlife and U.S. Fish and Wildlife Service e-mails that Golden Door offered as evidence of destroyed e-mails "are the kind of e-mails that this Court has said do not require retention." (Italics omitted.) These arguments are more appropriately directed to the trial court on remand when it reconsiders the merits of the motions to compel. The important point here is that Golden Door's claim that the County destroyed e-mails that are required to be retained under section 21167.6 is not a "bald assertion" nor is it "unsupported by any credible evidence."

7. On page 56, in the second full paragraph, after the sentence ending with "this issue is forfeited", insert the following citation:

(Cal. Rules of Court, rule 8.204(a)(1)(B); 8.485(a).)

8. On page 62, delete the last full paragraph that begins with "On this record" and replace it with the following:

On this record, the referee correctly determined that the common interest doctrine applied to avoid waiver of the attorney-client and attorney work product privileges with respect to communications between the County and Newland involving their joint-defense of the two pre-approval lawsuits. The Vallecitos case and Records Action each sought to defeat, or at least mortally wound the Project, preapproval. For example, in the Vallecitos case, Golden Door sought an injunction mandating that the County "cease its action in processing the proposed Newland Project, including its EIR and application for a subdivision map" until a lawful revised water supply assessment demonstrated "sufficient water supply" for the Project. Moreover, the complaint in Vallecitos alleges that the water supply assessment had a "fatal flaw" and that processing Newland's EIR based on that analysis would invalidate the EIR's consideration of alternatives and mitigation. The Records Action also sought to end the Project. Golden Door sought an injunction prohibiting the County from "[p]rocessing . . . the Newland Sierra project EIR until the County has demonstrated compliance with . . . all applicable laws."

9. On page 63, in the second full paragraph, delete the fourth sentence that states, "That defense would necessarily entail defending the Project" and replace it with:

That defense would necessarily entail defending aspects of the Project that were at issue in the Vallecitos case and the Records Action.

10. Also on page 63, in the second full paragraph, after the word "communications" immediately before the beginning of section F, insert a new footnote as follows, which will require renumbering of all subsequent footnotes:

A common interest, limited to defending these two preapproval lawsuits, may keep the attorney-client and/or work product privileges intact; however, such common interest does not otherwise alter the County's duties as lead agency under CEQA.

11. On page 75, in the first full paragraph, delete the second sentence that begins "Rather than ruling..." and replace that sentence with the following:

The referee and trial court did not rule on each individual request for production. Nor did they adjudicate, on a document-by-document basis, each claim of attorney-client privilege, attorney work product protection, and application of the common interest doctrine. Rather, the referee and superior court issued broad rulings on legal principles involved, and on that basis denied the motions.

The petition for rehearing filed by Petitioners Golden Door Properties, LLC et al. is denied.

The petition for rehearing filed by the County of San Diego, and joined in by Newland Sierra LLC and by Dudek is denied.

The petition for rehearing filed by Newland Sierra LLC and joined in by Dudek is denied.

Petitioners' request for judicial notice of an order issued by the superior court on August 10, 2020 in Golden Door Properties, LLC v. County of San Diego, et al. (Super. Ct. San Diego County, 2019, No. 37-2019-00026459-CU-UM-CTL) is granted. (Evid. Code, § 452, subd. (d)(1).)

The County of San Diego's request for judicial notice of an order vacating the above-referenced superior court order is granted. (Evid. Code, § 452, subd. (d)(1).)

There is no change in the judgment.

McCONNELL, P. J.

Copies to: All parties

CERTIFIED FOR PUBLICATION

(Super. Ct. Nos. 37-2018-00030460-CU-TT-CTL, 37-2018-00054312-CU-TT-CTL, 37-2018-00054559-CU-TT-CTL)

ORIGINAL PROCEEDINGS in mandate. Gregory W. Pollack, Judge. Petition granted in part. Requests for judicial notice granted in part and denied in part.

Latham & Watkins, Christopher W. Garrett, Daniel Brunton and Emily Haws 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 and Josh Chatten-Brown for Petitioner Sierra Club.

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

John Buse, Aruna Prabhala and Peter Broderick 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 for Save Berkeley's Neighborhoods as Amicus Curiae on behalf of Petitioners.

First Amendment Project, James R. Wheaton 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 for Real Party in Interest County of San Diego.

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

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

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