Carpe Diem - The importance of timely advice in...

Billy Xiong Announces: “For the Record”: Fourth District Holds CEQA’s “Mandatory”

Attorney at Law Billy Xiong Lawyer Legal Xiong Xiong Billy

In a 77-page published opinion filed on July 30, 2020, the Fourth District Court of Appeal (Div. One) issued a writ of mandate largely overturning San Diego Superior Court rulings denying plaintiffs’ motions to compel discovery and to augment the administrative record in a CEQA case; the disputes arose from Real Party San Diego County’s admitted deletion of email documents as “non-official records” pursuant to its records retention policies. Golden Door Properties, LLC et al. v. Superior Court of San Diego (County of San Diego, et al., Real Parties in Interest) (4th Dist. 2020) ___ Cal.App.5th ___.

Addressing what it termed an issue “of first impression,” the Court of Appeal held that Public Resources Code § 21167.6 is “mandatory” and “broadly inclusive” with respect to the documents comprising a CEQA action’s record of proceedings; it thus held “that a lead agency may not destroy, but rather must retain writings section 21167.6 mandates for inclusion in the record of proceedings.” It also rendered a number of other holdings concerning the mootness, exhaustion, and common interest doctrines; CEQA discovery generally; and PRA issues.

Relevant Background and the Court’s Holdings On Mootness And CEQA’s Administrative Record Statute

Plaintiff Golden Door, owner of a 600-acre spa and resort property in San Diego County, opposes a large mixed-use project (2,135 residential units and 81,000 square feet of commercial development) that has been proposed by developer Newland Real Estate Group, LLC in close proximity to its property on CEQA and other grounds. Prior to the project EIR’s certification in late 2018, Golden Door wrote the County in 2014 stating its opposition to the project; it sued the County, a water district, and Newland in late 2016 to try to stop the project on grounds of an inadequate water supply; it made PRA requests to the County relating to the project in 2017; and in mid-2018 (right after the project’s DEIR was released) it again sued alleging County had improperly destroyed official records and violated the Public Records Act (PRA), inter alia. After the project EIR was certified, Golden Door and 33 other plaintiffs filed two additional separate CEQA lawsuits against the project.

Golden Door propounded requests for production of documents to the County in its records-related and CEQA actions that largely duplicated its PRA requests and essentially sought documents that would comprise the administrative record in the CEQA action; it also propounded business records subpoenas to the County’s CEQA consultants seeking the same documents, many of which (i.e., about 2 ½ years’ worth of emails not flagged by County employees as “official records”) had been deleted by County pursuant to its records retention policy. Under that policy, County’s computers automatically deleted email communications unless flagged as “official records” after 60 days. County’s policy led to the motions by Golden Door to compel production of documents and to augment the record which resulted in the trial court rulings that were largely overturned by the appellate court’s opinion.

The Court had little trouble in concluding that Public Resources Code § 21167.6 required the County to retain the email records that it deleted, as a matter of the plain statutory language and to ensure the complete and thorough record needed for meaningful judicial review. But first it held that the issue was not mooted by an early 2020 voter referendum disapproving the project’s General Plan Amendment and the County Board’s subsequent decision rescinding many, but not all, of Newland’s land use approvals. Because (1) some approvals – including the project’s tentative subdivision map – were not rescinded, (2) Newland’s attorney indicated it intended to proceed with the project in some form, (3) the case presented an issue of broad public interest and statewide significance (as indicated by a previous Supreme Court grant and retransfer on the email destruction issue), (4) the issues will likely recur, and (5) County continued to defend its document destruction policy as lawful, the Court of Appeal held the action was not moot, and that even if the action was moot the Court would exercise its discretion to decide the issues under a mootness exception.

In holding County’s email destruction policy to be unlawful when applied to a CEQA case under section 21167.6, the Court held the statute is mandatory in that it applies “[n]otwithstanding any other law” and states the record “shall include . . . all of the following [enumerated] items . . . .” It is also broadly inclusive in using the operative words “all” and “any”, such as when it requires the record to include “[a]ny other written materials relevant to the respondent public agency’s compliance with [CEQA] or to its decision on the merits of the project, including . . . all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.” (§ 21167.6(e)(10).) Per the Court, this expansive and unambiguous statutory language “cannot reasonably be interpreted to mean all written materials, internal agency communications and staff notes except those emails the local agency has already destroyed.”

The Court reasoned that this conclusion is also consistent with CEQA’s core policies of protecting informed self-government and ensuring political accountability. It noted: “It would be pointless for the Legislature to have enumerated mandatory contents of the record of proceedings if, at the same time, a lead agency could delete such writings not to its liking, and then claim they are not in the record because they no longer exist.” Further, only limited opportunities exist to augment the record, making a “complete and thorough record under section 21176.6 . . . crucial to enable the judicial branch to fulfill its CEQA role assuring the agency’s determinations are lawful and supported by substantial evidence.” Thus, the Court held “that a lead agency may not destroy, but rather must retain writings section 21167.6 mandates for inclusion in the record of proceedings.”

In rejecting County’s argument that this interpretation imposed requirements not explicitly stated in CEQA (see § 21083.1), the Court reasoned that section 21167.6 is “explicitly mandatory . . . and inclusive” and that to give its language effect “requires that the mandated writings not be intentionally destroyed.” The Court rejected County’s argument that a lead agency is only required to retain writings that the CEQA Guidelines or a statute designate for retention; the Guidelines and statutory provisions requiring retention of DEIR comments (Guidelines, §§ 15095(c), 15208) and notices of determination (Pub. Resources Code, §§ 21167(b), 21152(a)) and exemption (§§ 21167(d), 21152(b)) are not exclusive, and serve a different purpose than § 21167.6, which aims to ensure meaningful judicial review in CEQA actions.

Further, the trial court missed a key distinction and erred in applying the rules for admission of extra-record evidence in administrative mandamus actions, when what plaintiffs actually sought was discovery of record evidence, i.e., documents § 21167.6 mandates to be included in the record. The Court found instructive San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 532, which held audio records and their transcripts were mandatory parts of the record under § 21167.6(e)(10) “even if not before the decisionmakers when they approved the project.” Such evidence is not extra-record evidence, and were the rule “[o]therwise, a lead agency could intentionally destroy a document that section 21167.6 mandates be included in the record, and then claim the document should be excluded because, by the very act of wrongful destruction, it was not before the decisionmaker when it made CEQA determinations.”

Nor did any of the other legal authorities invoked by the County support its position that it could lawfully destroy CEQA record documents; further, as properly interpreted, its own document retention policy did not even support its position since under it documents “required by law to be kept” had to be retained at least two years, not destroyed in 60 days. The Court dismissed County’s argument based on other agencies’ purported practices by stating “even if that were true, the validity of the County’s policy as applied in a CEQA case is not based on a popularity poll, but rather on the statutory language interpreted in light of CEQA policies and goals.”

Failure to Exhaust Arguments Rejected

The Court rejected plaintiffs’ alleged failure to exhaust, proffered as an alternative ground supporting the trial court’s rulings, stating that “assuming without deciding that exhaustion principles apply to an alleged violation of section 21167.6, subdivision (e) – the record indisputably shows that Golden Door preserved this issue” through a letter to the County’s Board. Further, Golden Door did not waive the issue by responding in reply to County’s first raising of an exhaustion defense in its opposition brief in the trial court. While new evidence is generally not permitted in reply papers, an exception exists for points “strictly responsive” to arguments first raised in opposition papers, as the exhaustion defense was here. Per the Court: “Plaintiffs had no obligation in their moving papers to anticipate and negate Newland’s exhaustion-of-remedies defense.”

Argument That Discovery Not Generally Allowed in A CEQA Case Rejected

In rejecting as “incorrect” the County’s argument that discovery is not generally allowed in a CEQA action, the Court observed that the Civil Discovery Act applies to civil actions and to special proceedings of a civil nature, such as mandate petitions. Any delay due to plaintiff’s discovery in the CEQA action here was due to County’s apparent failure to comply with § 21167.6. Due to that statute’s “mandatory and broadly inclusive” nature, however, the Court also noted that “[m]ost cases should not require discovery to establish the record of proceedings, nor the inherent delay it entails.”

Court Rejects Arguments of Excessive Expense of Email Retention, Provides Guidance

Responding to County’s assertion that email storage costs $76,000 per month, the Court noted CEQA does not require retention of “every email and preliminary draft,” but only emails having “relevance to the Project or the agency’s CEQA compliance with respect to the Project” and that “email[s] equivalent to sticky notes, calendaring faxes, and social hallway conversations” are not within § 21167.6(e)’s scope and need not be retained. Nor, it added, must project-related emails be retained in perpetuity, and “[t]he lapse of [CEQA’s short] applicable limitations periods with no action having been commenced is a relevant consideration in determining email retention periods consistent with section 21167.6.”

Court Recognizes Split of Authority on When Common Interest Doctrine Can Apply in CEQA Actions, Holds It Need Not Resolve Split to Hold Doctrine Applied Here

County and Newland asserted privilege claims in response to plaintiffs’ motions to compel, and § 21167.6 does not abrogate the attorney-client privilege or work product protection. (Citing Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 913.) Voluntary disclosure of privileged documents to a third party waives the privilege, but an exception known as the “common interest doctrine” provides that “[p]ersons who possess common legal interests may share attorney client information without waiving the privilege.” For the doctrine to apply, the parties must share a common interest in securing legal advice related to the same matter and the communications must be made to advance that shared interest. Ceres held the doctrine “does not protect preapproval shared communications” in a CEQA case, while another decision – California Oak Found. v. County of Tehama (2009) 174 Cal.App.4th 1217, 1222-1223 appears to have applied the doctrine to protect privileged documents and communications shared pre-project approval in a CEQA matter based on the rationale that the applicant and lead agency share a common interest in achieving a legally compliant EIR.

In this case, post-litigation but pre-project approval joint defense agreements (JDAs) were entered into between County and Newland with respect to the records action, and between County, Newland and the water district with respect to the water litigation. Finding it did not need to “weigh in on” the Ceres/California Oak split, the Court upheld the trial court’s ruling that the common interest doctrine applied to preapproval shared communications based on attorney-declarant evidence that such JDAs existed, without need of introducing the JDAs themselves into evidence. The Court reasoned that the water and records litigation each sought to “kill” the project even before it was approved, creating a “preapproval common defense interest” shared by County and Newland, and thus distinguishing the case from Ceres. Per the Court: “A project opponent cannot by its own litigation strategy create a pre-approval common defense interest, and then claim the agency and applicant have acted improperly in furthering the interest by sharing relevant attorney-client communications.”

“Law of the Case” – Not!

In rejecting the “rule of the case principle” invoked by the trial court in denying the motions to compel, the Court provided some uncontroversial but nonetheless important reminders about the nature and parameters of the “law of the case” doctrine. That doctrine essentially provides that when, in deciding an appeal, the appellate court states in its opinion a principle or rule of law necessary to its decision, that rule or principle becomes “law of the case” that is binding in both the lower court and on appeal in subsequent proceedings. However, the doctrine does not apply to statements of principles or rules in trial court rulings and does not apply to an appellate court’s summary denials of writ petitions, which are not merits adjudications and thus establish no “law of the case.”

County’s Claims of PRA Exemptions Require Further Descriptive Justification

County withheld approximately 1,900 documents from disclosure in response to plaintiffs’ PRA requests in reliance on the PRA’s exemptions for “preliminary drafts” not retained in the ordinary course of business (Gov. Code, § 6254(a)) and the “deliberative process exemption.” (Citing Caldecott v. Superior Court (2015) 243 Cal.App.4th 212, 225.) But the County failed to carry its burden of proving these claimed PRA exemptions applied because it failed to “describe the justification for nondisclosure with reasonably specific detail and demonstrate that the information is within the claimed privilege or exemption.” While the process does not require the agency to disclose the very information it seeks to protect, it must still provide information specific enough to give the requester a meaningful opportunity to contest the document’s withholding, and cannot rely on “conclusory or boilerplate assertions” merely reciting the statutory standards. (Citing American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 66, 82-83; Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 305-307.)

Remedy

Finally, while directing the trial court to vacate its orders denying the discovery motions and motion to augment, and to conduct further proceedings in conformity with its opinion, the Court declined to enter judgment for plaintiffs setting aside the project approvals based on the administrative record being inadequate for judicial review. (See Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364-365, 372.) The Court found Protect Our Water inapplicable because there “the court was presented with a record of proceedings, albeit a grossly deficient one” whereas in the case before it the record “is still a work in progress[.]” Thus, plaintiffs’ request for such a remedy was denied without prejudice as premature.

 

Jonathan Cartu

Leave a Reply