Citizens for Ceres v. Superior Court
217 Cal. App. 4th 889
| Cal. Ct. App. | 2013Background
- Citizens for Ceres challenged the City of Ceres and Wal-Mart project under CEQA in a writ of mandate proceeding.
- The City certified the environmental impact report and approved the Wal-Mart-anchored shopping center on Sept. 12, 2011.
- The administrative record certified by the City omitted communications between the city and the developer, claiming privilege (attorney-client and work product).
- The challenger moved to augment the record; the trial court denied, prompting writ proceedings in this court.
- This court held CEQA does not abrogate attorney-client privilege or work-product doctrine; preapproval disclosures between agency and applicant are waived, but postapproval disclosures may be protected if a proper common-interest showing exists; the case was remanded for reconsideration with proper showing of preliminary facts and possible in-camera review where appropriate.
- The court directed a writ of mandate to reorder the privilege determinations, allowing amendments and limiting wholesale suppression of documents prior to project approval.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CEQA abrogation of privileges | 21167.6 requires inclusion notwithstanding law | Privileged communications may be withheld | No, CEQA does not abrogate privileges. |
| Common-interest doctrine pre-approval | Preapproval disclosures should be protected if common interest exists | Preapproval disclosures are not protected by the doctrine | Waiver of privilege for preapproval disclosures; common-interest does not apply preapproval. |
| Common-interest doctrine post-approval | Doctrine should protect postapproval disclosures when elements are met | Must prove elements for each document; blanket protection improper | Postapproval disclosures may be protected if elements are shown; not automatic. |
| Burden to show preliminary facts | Privilege claims established by declarations alone | Need factual preliminary showing | Court erred; requires showing of preliminary facts for each claim. |
| Remedy and scope of record | Writ should compel augmentation and reconsideration | Record augmentation unnecessary for all items | Writ granted; trial court to reconsider privilege claims with proper showings; preapproval communications ordered included. |
Key Cases Cited
- Madera Oversight Coalition, Inc. v. County of Madera, 199 Cal.App.4th 48 (Cal. Ct. App. 2011) (CEQA administrative record breadth; summary guidance on contents)
- California Oak Foundation v. County of Tehama, 174 Cal.App.4th 1217 (Cal. Ct. App. 2009) (common-interest doctrine scope; pre/post-approval application nuances)
- OXY Resources California LLC v. Superior Court, 115 Cal.App.4th 874 (Cal. Ct. App. 2004) (elements of common-interest doctrine; confidentiality and necessity)
- Roberts v. City of Palmdale, 5 Cal.4th 363 (Cal. 1993) (open-government policies; permanency of privilege protections)
- Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (Cal. 2009) (preliminary facts burden; in camera review limitations; dominant purpose test for privilege)
- Save Tara v. City of West Hollywood, 45 Cal.4th 116 (Cal. 2008) (CEQA reflects agency neutrality before environmental review)