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...
