By Katherine J. Hart
In Citizens for Ceres v. Superior Court (July 8, 2013) ___ Cal.App.4th ___ (Citizens for Ceres), the Fifth Appellate District considered a writ from the trial court’s order denying the Citizens’ motion to augment the administrative record with various communications and documents excluded by the City. In overruling the trial court’s order, the Court of Appeal held that while Public Resources Code section 21167.6(e)(10) does not abrogate the attorney-client and attorney work-product privileges, “the common interest privilege does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to project approval.” Such a ruling conflicts with the implied holding of the California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th1217 (California Oak) ruling on this issue.
The Citizens for Ceres case arose out of the City of Ceres’ (City) approval of a 300,000 square foot shopping center, including a 200,000 square foot Wal-Mart store. The City certified an environmental impact report (EIR) and approved the project in September 2011. Petitioners, the Citizens for Ceres (Citizens), challenged the City’s certification and approval of the project under the California Environmental Quality Act (CEQA).
The City prepared the administrative record, and in the course of reviewing the index for the proposed administrative record, the Citizens discovered the proposed record contained no emails or internal memoranda between the agency and its consultants or the applicant. Despite Citizens’ concerns regarding the dearth of emails and internal memoranda in the proposed administrative record, the City certified and lodged the record. The Citizens filed a motion to augment the record with emails and internal memoranda, which motion the City opposed on the grounds that such documents were attorney-client, work product privileged subject to the common interest doctrine. The City also prepared a privilege log of the withheld communications, along with four declarations supporting the confidentiality of the documents. The trial court denied the Citizens’ motion to augment the record, which the Citizens now appeal.
In overruling the trial court’s order denying the Citizens’ motion to augment the administrative record, the appellate court noted that the privilege log prepared by the City was unclear as to who the parties listed on the documents were (i.e., whether they were attorneys) and what privileges or protections applied to keep each of the documents from being disclosed. The court of appeal also noted that with the exception of four documents, the declarations did not state the declarants’ personal knowledge that any of the documents were communications made in the course of the attorney-client relationship or were the work product of an attorney.
The first issue addressed by the appellate court was whether CEQA abrogates all privileges generally. The court concluded CEQA does not abrogate all privileges generally because the phrase “notwithstanding any other law” at the beginning of section 21167.6 does not apply to subsection (e) thereof. The court of appeal reasoned that if the Legislature intended to abolish the attorney-client and work product privileges for purposes of compiling CEQA records, it would have stated that intention clearly, which it did not.
Next, the court addressed whether the common-interest doctrine protected communications between the City, its consultants, and the developer pre-project approval. In holding that the common interest doctrine does not protect such communications prior to project approval, the court of appeal stated that the doctrine extends to communications protected by the attorney-client privilege or the work product doctrine only where the disclosure is necessary to accomplish the purpose for which the legal advice was sought” and that the “doctrine is not an independent privilege but a doctrine specifying circumstances under which disclosure to a third party does not waive privileges.” In citing OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, the Fifth Appellate District noted that “for the common interest doctrine to attach, most courts seem to insist that the two parties have in common an interest in securing legal advice related to the same matter –and the communications be made to advanced their shared interest in securing legal advice on that common matter.” (Id. at p. 891.) The appellate court reasoned that the city and the applicant/developer had no common interest because “the developer ha[d] no interest in the development of an environmental document that does not support the developer’s proposal.” Additionally, the appellate court reasoned that “the agency cannot have an interest, prior to project approval, in producing a legally defensible EIR or other environmental document that supports the applicant’s proposal. At the same time, of course, the applicant’s primarily interest in the environmental review process is in having the agency produce a favorable EIR that will pass legal muster. These interests are fundamentally at odds.”
Citing the California Oak case, the City and applicant argued that the communications between them pre-project approval were privileged because they had a common interest in not only defending, but producing, a legally defensible EIR. The Fifth Appellate District disagreed and declined to follow California Oak.
Despite the ruling issued by the Third Appellate District in the California Oak case, public agency lawyers have remained skeptical about the protection afforded by the common interest doctrine and have taken the conservative approach, advising their clients that anything written in an email and/or memorandum (other than attorney client or attorney work product materials) is potentially subject to inclusion in the administrative record.
Because the Fifth Appellate District has explicitly disagreed with and declined to follow the Third Appellate District’s ruling on the issue of common interest doctrine as outlined in the California Oak case, there is now a very clear split among the appellate districts. Counsel on behalf of cities and/or counties will likely file a request for depublication. If the request is denied, hopefully, the City and/or Walmart will petition the California Supreme Court for review of this issue so lead agencies can obtain clear guidance on whether the common interest doctrine truly only attaches post-project approval as the Fifth Appellate District now suggests.
In the meantime, as I have always cautioned both my lead agency and developer clients alike, if you don’t want to see an email in the administrative record … DON’T WRITE IT! Instead, as Bill Abbott has always advised, “Pick up the damn phone.”
Katherine J. Hart is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.