53 Cal.App.5th 733
Cal. Ct. App.2020Background
- County of San Diego used a 60-day automatic e-mail deletion policy; many project-related e-mails were auto-deleted unless designated an 'official record.'
- Newland proposed the Newland Sierra development; Golden Door and several environmental groups opposed it and sought project records while the EIR process was ongoing.
- Public Resources Code § 21167.6(e) mandates that the record of proceedings in CEQA litigation include 'all written evidence or correspondence' and 'all internal agency communications' related to the project.
- The superior-court discovery referee concluded § 21167.6 did not impose a retention duty (treating the materials as merely enumerated record contents) and denied multiple motions to compel; the superior court adopted those recommendations.
- The Court of Appeal held that § 21167.6 requires retention of writings within its scope, that County policy could not lawfully auto-delete such e-mails, and it vacated/ordered reconsideration of the discovery denials (with limited exceptions for certain common-interest and procedural rulings).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 21167.6 requires a lead agency to retain writings enumerated for the CEQA record | § 21167.6's mandatory language ('shall', 'all', 'any') and CEQA's disclosure goals require retention of those writings | § 21167.6 only lists what belongs in the record; it is not a document-retention statute and retention duties are governed by other rules/policies | Held: § 21167.6 requires retention of writings it mandates be in the record; agencies may not destroy those materials pre-record preparation |
| Whether discovery to obtain writings within § 21167.6 is barred as 'extra-record' evidence | Plaintiffs sought documents that are statutorily part of the record (not extra-record) and thus discovery is proper to assemble the record | Defendants relied on Western States and the extra-record limitations to bar post-approval discovery | Held: Distinguish record-vs-extra-record; items statutorily included under § 21167.6 are record materials and subject to discovery to assemble the record; Western States does not excuse prior destruction |
| Whether prior appellate summary denial created law-of-the-case foreclosing renewed discovery | Plaintiffs: summary denial was not a merits decision and does not bind the trial court or referee | Defendants: prior appellate action and earlier referee rulings should control subsequent discovery rulings | Held: Summary denial of a writ is not a merits adjudication and is not law of the case; trial court/referee may reconsider in light of this opinion |
| Whether the common-interest doctrine shields preapproval communications between County and applicant | Plaintiffs: common-interest does not apply preapproval (Ceres) so communications should be producible | Defendants: joint-defense agreements and litigation posture created aligned interests and preserved privilege | Held: On these facts (preexisting plaintiff litigation and joint defense agreements), substantial evidence supported application of the common-interest doctrine to some preapproval communications; that portion of the referee's ruling was left intact |
| Whether County satisfied PRA/deliberative-process exemption burden for ~1,900 withheld documents | Plaintiffs: County gave only boilerplate declarations and an inadequate log; information withheld should be produced or subjected to detailed in camera review | County: general declarations about chilling effect and process protection suffice | Held: County's declarations were conclusory and insufficient as to each withheld document; superior court must permit opportunity to provide adequate factual support and re-evaluate exemptions |
| Appropriate remedy (augmentation, sanctions, set-aside) | Plaintiffs sought judgment, EIR invalidation, or at minimum augmentation with recovered materials | County urged denial of discovery and no remedial relief; argued costs and routine retention practices justify deletion | Held: Court denied judgment as premature; ordered vacatur of discovery denials (with limited exceptions), remand for further discovery/meet-and-confer, and left augmentation/remedy decisions to trial court after further proceedings |
Key Cases Cited
- Western States Petroleum Ass'n v. Superior Court, 9 Cal.4th 559 (1995) (extra-record-evidence rules in CEQA mandamus review explained)
- Madera Oversight Coalition, Inc. v. County of Madera, 199 Cal.App.4th 48 (2011) (distinguishes items that are statutory record from extra-record evidence)
- San Francisco Tomorrow v. City & County of San Francisco, 229 Cal.App.4th 498 (2014) (materials within § 21167.6 scope must be included in administrative record even if not before decisionmakers)
- Consolidated Irrigation Dist. v. City of Selma, 204 Cal.App.4th 187 (2012) (trial-court has no discretion to exclude matters statutorily mandatory parts of the CEQA record)
- Citizens for Ceres v. Superior Court, 217 Cal.App.4th 889 (2013) (common-interest doctrine and limits on preapproval privilege between applicant and agency)
- California Oak Foundation v. County of Tehama, 174 Cal.App.4th 1217 (2009) (common-interest analysis supportive of privilege in certain agency-applicant contexts)
- Kowis v. Howard, 3 Cal.4th 888 (1992) (summary denial of writ does not establish law of the case)
- Protect Our Water v. County of Merced, 110 Cal.App.4th 362 (2003) (remedy under CEQA when administrative record is inadequate for meaningful review)
- Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal.3d 376 (1988) (CEQA's public disclosure and informed self-government objectives)