(Super. Ct. No. 39200900213817CUWMSTK) (Super. Ct. No. CV025999)
The opinion of the court was delivered by: Robie , J.
Citizens for Open Government v. City of Lodi
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This opinion addresses three actions consolidated in the trial court under the California Environmental Quality Act. ((CEQA); Pub. Resources Code, § 21000 et seq.) The plaintiffs/petitioners are two citizens groups -- Citizens for Open Government (Citizens) and Lodi First -- that are challenging reapproval by defendant the City of Lodi (the city) of a conditional use permit for a proposed shopping center project (the project) to be developed by Browman Development Company (Browman Company) after the original environmental impact report (EIR) for the project was revised and recertified. The project is anchored by a Wal-Mart Supercenter, slated to take the place of a smaller Wal-Mart across the street from the project.
The first action was the city's application for discharge of the trial court's December 2005 writ of mandate. The December 2005 writ issued because the original EIR was inadequate in its analysis of energy impacts and cumulative urban decay impacts. The revised EIR addressed those two areas and three others: the discussion of agricultural resources, the statement of project objectives, and the discussion of project alternatives. The city's application for discharge of the 2005 writ followed the city council's action certifying the revised EIR and approving the project. In that revised EIR, the city concluded some comments it had received on the draft revised EIR were beyond the scope of the revisions and barred by res judicata. Therefore, no substantive response was provided.
The second and third actions were Citizens's and Lodi First's petitions for writ of mandate contending the city violated CEQA by certifying the revised EIR. Among the issues they raised were whether res judicata applied, whether a stipulation entered into by Citizens with the city and Browman Company waived the defense of res judicata, and whether the substantive analyses of certain sections of the revised EIR were adequate.
The trial court consolidated these actions and issued one ruling. In that ruling, the court granted the city's request to discharge the December 2005 writ and denied Citizens's and Lodi First's petitions for writ of mandate.
Citizens and Lodi First both appeal from the resulting judgments. Lodi First also appeals from the order discharging the writ. In these appeals, they allege deficiencies in the administrative record and the revised EIR and error in the trial court's ruling precluding them from challenging certain issues based on res judicata. We find no prejudicial error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2002, Browman Company applied to the city for a use permit to develop a 35-acre shopping center project in west Lodi on farmland previously used for row crops. The project was 339,966 square feet of commercial retail space with the anchor tenant a 226,868 square-foot Wal-Mart Supercenter, which would take the place of an existing 119,684 square-foot Wal-Mart that lacked a grocery department and was located across the street from the project.
The 2004 EIR And The City's Initial Approval Of The Project
In April 2003, the city issued a notice of preparation of a draft EIR. In August 2004, the city published its draft EIR. In December 2004, the city's planning commission certified the final EIR and approved the project. Lodi First appealed the certification and approval, claiming the project conflicted with the city's zoning code, was inconsistent with the city's general plan, and did not satisfy CEQA.
In February 2005, the city council denied Lodi First's appeal and affirmed the planning commission's certification of the final EIR. The city filed a notice of determination of its approval of the project later that month.
Proceedings In The Trial Court
And The Appellate Court On The 2004 EIR
In the trial court, Lodi First and Citizens filed separate lawsuits (Lodi First I and Citizens I) challenging the city's approval of the project. In October 2005, the trial court dismissed Citizens I because Citizens had not filed an administrative appeal. In December 2005, the trial court granted the petition for writ of mandate in Lodi First I, holding that the 2004 EIR was inadequate under CEQA in its analysis of the project's energy impacts and cumulative urban decay impacts. Rather than appeal the trial court's ruling in Lodi I, in May 2006 the city council rescinded approval of the project and decertified the 2004 EIR.
In October 2006, this court reversed the trial court's dismissal of Citizens I, holding that Citizens had exhausted administrative remedies by appearing before the city and objecting to the project and the 2004 EIR and that the appeal was not moot. This court remanded the matter to the trial court. (Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 869, 872, 875-876, 879.)
The Stipulation And 2007 Revised EIR
In November 2006, the city issued a notice of preparation for the revised EIR.
In July 2007, Citizens stipulated with the city and Browman Company to dismiss Citizens's action filed in Citizens I. Among other things, the stipulation stated: "Subject to applicable exhaustion of administrative remedies requirements, Citizens shall have the right to assert any claim, including any claim asserted in this action, in any subsequent litigation over Lodi's reconsideration of the Project and the adequacy of the revised EIR."
In October 2007, Pacific Municipal Consultants prepared draft revisions to the 2004 EIR. The revisions included "a revised discussion of urban decay impacts as well as a full section on energy." In addition, the city "decided to make revisions to three additional areas of the EIR, namely[,] the statement of project objectives, the discussion of agricultural resources, and the discussion of project alternatives."
In October 2007, the city circulated the revisions for public review and comment through December 2007. The city responded in writing to the comments and made further revisions to the draft EIR. The city concluded some comments it had received on the draft revised EIR were beyond the scope of the revisions and barred by res judicata. Therefore, no substantive response was provided.
In March 2008, the city published the final revised EIR, which consisted of comments on the draft revisions to the 2004 EIR and the written responses to the comments.
In October 2008 at a public hearing, the planning commission considered the final revised EIR and the project. At the beginning of the hearing, the city's special counsel hired for this CEQA litigation stated the commission was limited to reviewing the five areas of the EIR the city updated either voluntarily or by court order. The commission declined to certify the final revised EIR because it lacked sufficient detail. The commission took no action on the project itself.
In December 2008, the city council heard appeals by Browman Company and Wal-Mart. After a public hearing on the appeals, the city council voted to overturn the planning commission and voted to certify the final revised EIR. However, allegations of Brown Act*fn1 violations at that hearing (not relevant here) led the city council to hold a second public hearing in March 2009.
In March 2009, the second public hearing was held to reconsider the appeals. At the beginning of the hearing, the community development director stated the discussion was limited to the five areas of the EIR the city updated either voluntarily or by court order. The city council voted to certify the final revised EIR.
Following certification, the planning commission reviewed Browman Company and Wal-Mart's request to approve the project.
In April 2009, a motion to approve the project resulted in a tie among the commissioners, which meant a denial of the project. Browman and Wal-Mart appealed the denial. Lodi First also appealed because the commission "did not make any affirmative denial of the Project."
In May 2009, the city council held a public hearing on the appeals. The council conditionally approved the project entitlements and adopted the findings of fact and statement of overriding considerations for the project.
Trial Court Litigation Regarding Discovery
And The 2008 Final Revised EIR
In June 2009, the city filed a petition to discharge the writ in Lodi First I. As part of its return to the writ of mandate, the city lodged the supplemental administrative record.
In June 2009, Citizens and Lodi First each filed separate lawsuits (Citizens II and Lodi First II) challenging the 2008 final revised EIR. In October 2009, Citizens II, Lodi First II, and the petition to discharge the writ in Lodi First I were partially consolidated.
After these lawsuits were filed, both Citizens and Lodi First sent letters to Wal-Mart and Browman Company contending the supplemental administrative record excluded documents, including internal agency communications and communications with city consultants. In response, the city, among other things, prepared a log of documents it claimed were privileged and augmented the supplemental administrative record with other documents. Still believing it was due other documents, Citizens filed a motion to augment the administrative record in which Lodi First joined. In December 2009, the court granted the motion in part. The court denied the motion in part because some documents were privileged under the attorney-client privilege, the attorney work product doctrine, and/or the deliberative process doctrine. Finally, following an in camera inspection of 27 e-mails the city claimed were protected by the deliberative process privilege, the court ordered five produced.
The hearing on the merits of the coordinated actions was held in February 2010. In May 2010, the court granted the city's request to discharge the December 2005 writ in Lodi First I and denied the petitions in Citizens II and Lodi First II.
Following judgment, Citizens filed a notice of appeal from Citizens II and Lodi First filed an appeal from Lodi First II. Lodi First also appealed from the order discharging the writ in Lodi I.
Challenge To The Administrative Record
Lodi First and Citizens raise three challenges to the administrative record. One, Lodi First contends the court erred in applying the deliberative process privilege to exclude from the administrative record 28*fn2 e-mails between the city's staff and their consultants regarding preparation of the revised EIR. Two, Citizens contends the trial court "erred by not separately considering documents attached to emails." And three, Citizens contends the court abused its discretion in holding that nine e-mails between the city and Wal-Mart/Browman Company's attorneys were privileged.
The Deliberative Process Privilege
"Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated." (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 540, superseded by statute on another point in Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 915.)
Lodi First contends the court erred in applying the deliberative process privilege to exclude from the administrative record 28 e-mails (really 22 e-mails) between the city's staff and their consultants regarding preparing the revised EIR.
Lodi First has four arguments why the privilege does not apply here. One, the introductory language to the statute delineating the contents of the administrative records in CEQA cases that states, "Notwithstanding any other provision of law. [¶] . . . [¶] (e) the record of proceedings shall include, but is not limited to, all of the following items: [¶] . . . [¶] (7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project." (Pub. Resources Code, § 21167.6, italics added.) As Lodi First sees it, the "[n]otwithstanding any other provision of law" language abrogates the deliberative process privilege here. Two, the deliberative process privilege "appears" not to apply to quasi-judicial decisions. As Lodi First sees it, "the [c]ity was not enacting broad policy in approving the [p]roject, but rather was applying established policy to a specific development proposal." Three, the privilege did not apply to certain e-mails that postdated the release of the final revised EIR in August 2008. And four, "the public interest in full disclosure outweighs any interest in nondisclosure." As Lodi First sees it, the city failed to make "the detailed and specific showing required to establish its privilege claim." Given the record here, we find the fourth argument persuasive and do not reach the others.
This court has explained the showing that must be made by the one claiming the deliberative process privilege: "Not every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the [one claiming the privilege] to establish the conditions for creation of the privilege. The trial court's determination is subject to de novo review by this court, although we defer to any express or implied factual findings of the superior court." (California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 172-173.)
In the trial court, the city's argument for why the privilege applied here was as follows: "[T]he City Manager, City Attorney, Community Development Director, outside counsel, and expert EIR consultants engaged in various deliberative discussions and document exchanges concerning the Project and the [revised] EIR. In order to foster candid dialogue and a testing and challenging of the approaches to be taken, those discussions are appropriately exempt from disclosures under the deliberative process privilege . . . ." In response, Lodi First argued the city had "at no point demonstrated that the public's interest in nondisclosure outweigh[ed] the public's interest in disclosure of these documents. . . . [¶] To the extent that the communications reveal a dispute among the experts, specifically the economic consultants retained by the City and the economic consultants retained by Lodi First, they should be disclosed pursuant to guidelines Section 151151 . . . . " Without comment, the trial court found the deliberative process privilege applied to 22 of them.
In this court, Lodi First claims the city's "naked assertion" that disclosing staff communications would "hamper 'candid dialogue and a testing and challenging of the approaches to be taken'" is not sufficient to demonstrate the public interest in nondisclosure clearly outweighs the public interest in disclosure. The city's response on appeal to Lodi First's appellate argument is the following one line: "Lodi First's argument flies in the face of well settled law affirming the strong public policy underlying the need for the deliberative process privilege."
Lodi First is correct the city never established the conditions for creation of the privilege. The city's explanation in the trial court of why the privilege applies, i.e., to "foster candid dialogue and a testing and challenging of the approaches to be taken," was simply a policy statement about why the privilege in general is necessary. Indeed, the city's explanation was similar to one of the policy reasons for the deliberative process privilege enunciated by this court: the privilege "'protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions.'" (California First Amendment Coalition v. Superior Court, supra, 67 Cal.App.4th at p. 170.) While the policy behind the privilege makes sense, invoking the policy is not sufficient to explain the public's specific interest in nondisclosure of the documents in this case. That policy could apply to almost any decision-making process. The city therefore failed to carry its burden to explain what the public's specific interest in nondisclosure was in this case.*fn3 (California First Amendment Coalition v. Superior Court, supra, 67 Cal.App.4th at p. 172.) The city also failed to carry its burden to explain why the public's interest in nondisclosure in this case "clearly outweigh[ed]" the public interest in disclosure. (Ibid.) Because the city failed to carry its burden, the court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.
The question then becomes prejudice. Lodi First argues in its opening brief that "because an EIR is presumed adequate and a petitioner bears the burden of proving error in light of the whole record . . . an incomplete record prevents the petitioner from meeting its burden." In light of Lodi First's argument, we requested the parties brief the following issue: "Assume the trial court erred in excluding certain allegedly privileged documents from the administrative record. As a practical matter, is the issue not amenable to appellate review (and therefore more properly raised by writ review) because appellant lacks the ability to demonstrate prejudicial error as it has not seen the documents that were erroneously excluded?" As we will now explain, applying well established appellate rules, we hold reversal is not required because Lodi First has failed to meet its burden to show prejudicial error in the trial court's exclusion of these e-mails from the administrative record.
"No judgment shall be set aside . . . in any cause, on the ground of . . . the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Under this standard, the appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, Lodi First's opening brief acknowledges it cannot satisfy its burden to prove prejudice on appeal because of the "incomplete record," i.e., because it has not seen the documents that were erroneously withheld.
In its supplemental brief, however, Lodi First claims that respondents' act of improperly withholding the documents "is itself prejudicial." In support, it quotes the maxim of jurisprudence, "[t]he law never requires impossibilities" (Civ. Code, § 3531), and argues that requiring Lodi First "to prove prejudice without ever having seen the improperly withheld documents imposes an impossible burden on CEQA petitioners." Not so.
The answer to Lodi First's predicament was to seek writ review of the trial court's December 14, 2009, ruling on the motion to augment the administrative record, in which the court determined the deliberative process privilege applied. "'"[W]hen the remedy by appeal is rendered inadequate in the context of a specific case, this court may, in its discretion, permit an aggrieved party to bypass the appellate process and pursue extraordinary relief."'" (Hornung v. Superior Court (2000) 81 Cal.App.4th 1095, 1098.) Specifically, writ review of a discovery ruling is appropriate if "an order prevents a party from having a fair opportunity to litigate his or her case." (Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 286-287.) Here, Lodi First could have sought writ review of the court's ruling improperly excluding documents based on the deliberative process privilege by arguing that review by appeal was inadequate. It was inadequate because without having seen the documents, Lodi First could not carry its burden on appeal to show prejudice.
Lodi First, however, contends that "the incomplete record itself is a prejudicial error that requires reversal, regardless of the actual contents of the withheld documents." In support, it primarily cites Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362. That case holds nothing of the sort. There, the administrative record which was contained in "14 binder-sized volumes . . . read as if its preparers randomly pulled out documents and threw them into binders, failing to organize them either chronologically or by subject matter. Key findings required under CEQA [we]re impossible to find--let alone sufficient to enable [the appellate court] to determine whether they are supported by substantial evidence." (Id. at p. 365.) "Because [the appellate court] c[ould ]not discern the required findings under CEQA, [it] reversed the judgment." (Id. at p. 373.)
In contrast, the missing documents here do not deprive us of our ability to review the judgment. Rather, their exclusion deprived Lodi First of the opportunity to review 22 e-mails between the city staff and EIR consultants to determine whether those documents could have bolstered the analysis of the arguments it was going to make on appeal. To remedy that deprivation, however, Lodi First could have sought writ review to avoid the predicament in which it finds itself now, i.e., the inability to carry its burden to demonstrate prejudice.
Taken to its extreme, Lodi First's position is that anytime even one insignificant document is erroneously excluded from the administrative record, reversal is required. This is not the law. For example, in a recent case, the Court of Appeal, Fifth Appellate District, held that even assuming a comment letter was erroneously excluded from the administrative record, its exclusion "d[id] not constitute reversible error because its exclusion resulted in no prejudice to plaintiffs. . . . Stated otherwise, the outcome of this appeal would have been the same as the outcome reached had the . . . comment letter never been written or had the letter been included in the administrative record." (Madera Oversight Coalition Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 75.)
In that case, the content of the letter was known to all parties because the commenter had submitted the letter regarding the draft EIR for all the parties to see but then the commenter requested the letter be withdrawn. (Madera Oversight Coalition, Inc. v. County of Madera, supra, 199 Cal.App.4th 48, 75, fn. 12.) Therefore, each party could make its own arguments regarding whether exclusion of the letter from the administrative record was or was not prejudicial. Here, we will not stand in the shoes of Lodi First and determine without input from the parties whether the error in excluding these documents was prejudicial where there was another route by which Lodi First could have obtained the erroneously-excluded documents and made its own argument as to why the error in excluding the documents was prejudicial.*fn4
We conclude by addressing Lodi First's argument that we treat its appeal as a petition for extraordinary writ. We will not exercise our discretion to treat this appeal as a writ petition. "As a general rule, a writ petition should be filed within the 60-day period that is applicable to appeals. [Citations.] 'An appellate court may consider a petition for an extraordinary writ at any time [citation], but has discretion to deny a petition filed after the 60-day period applicable to appeals, and should do so absent "extraordinary circumstances" justifying the delay.'" (Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701.)
Here, the 60-day period applicable to appeals has long since lapsed. The trial court made its final determination excluding the allegedly privileged documents from the administrative record on December 14, 2009, when it ruled on the motion to augment the administrative record.
There is no extraordinary circumstance justifying the delay. Lodi First claims there is because nothing in the law "hints or holds that review by way of extraordinary writ is the only means available for reviewing a record dispute under CEQA." As an example, Lodi First cites this court's decision in California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217. There, an environmental group appealed after the trial court denied its petition for writ of administrative mandamus to overturn approval of a project and associated EIR. (Id. at pp. 1219-1220.) The appeal included a challenge to the trial court's order denying the group's motion for an order to compel the city to include in the administrative record four letters from the city's outside counsel the city believed were protected by the attorney-client privilege and the work product privilege. (Id. at p. 1220-1221.) Our court disagreed and found the privileges applied. (Id. at p. 1221.)
Nothing in California Oak Foundation undermines the position we take here. There, our court never reached the issue of prejudice from the excluded documents because there was no error in excluding them in the first place. (California Oak Foundation v. County of Tehama, supra, 174 Cal.App.4th at p. 1221.)
As another example, Lodi First cites County of Orange v. Superior Court (2003) 113 Cal.App.4th 1. There, the county and the developer filed a writ petition in the appellate court from the trial court's ruling excluding from the administrative record both an addendum which consisted of about 1,100 pages and miscellaneous county documents which consisted of 700 additional pages relating to that addendum. (Id. at pp. 1, 7.) The project opponents claimed this evidentiary ruling should not be reviewed by writ petition. (Id. at p. 11.) The appellate court held "[u]nder the circumstances of this case, a peremptory writ in the first instance, as requested in the petition, is appropriate." (Id. at p. 13.) The appellate court noted, "the rule against writ review of evidentiary matters is not absolute. . . . [T]he rule would not apply '"'when the remedy by appeal is rendered inadequate in the context of a specific case.'"'" (Id. at pp. 11-12.)
County of Orange supports our conclusion here. The case cited the Legislature's recognition "that, particularly in the CEQA context, time is money. The name of the game may be, from the project opponent's point of view, to spot the inadequacy in the EIR, but the game itself must be played quickly. [¶] Let us assume, [the exclusion of materials] is an error that must be corrected by way of the remedy of appeal. That doesn't necessarily mean the appeal will be an adequate remedy. To build guaranteed delay into the process is to guarantee that the project opponents will prevail to the extent of delaying the project, which itself must necessarily be one of their goals. The Legislature has obviously structured the legal process for a CEQA challenge to be speedy, so as to prevent it from degenerating into a guerilla war of attrition by which project opponents wear out project proponents. . . . [¶] Realistically, we expect an appeal from whatever decision the trial court makes. . . . That appeal is part of the rules of the game. But it is not within the rules to build into the legal process the probability of two appeals . . . ." (County of Orange v. Superior Court, supra, 113 Cal.App.4th at pp. 12-13.)
In sum, where Lodi First chose to proceed on appeal and demonstrated respondents had not carried their burden of showing that the 22 documents excluded from the administrative record were indeed covered by the deliberative process privilege, Lodi First cannot claim it is impossible to demonstrate prejudice (for its lack of ability to see the documents) because Lodi First created its own predicament by failing to seek writ review. An appellant's burden to prove prejudicial error is well established. Indeed, it is part of our state's Constitution. Because Lodi First has failed to carry that burden, it is not entitled to reversal on appeal.
The Trial Court Did Separately Consider
The Attachments To The E-mails
While litigating the contents of the administrative record, respondents stated in a letter to Lodi First and Citizens, "[s]ome of the e-mails listed in the privilege log include attachments. Any privileges that apply to the e-mails apply to the entirety of the e-mail, including any attachments." The privilege log did not indicate which withheld e-mails contained attachments. In its motion to augment the record to include these and other items, Citizens requested the attachments be made part of the administrative record or at ...