This case involves a challenge under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)
The dispute over these documents arose when the challenger pointed out that the administrative record prepared and certified by the city included no communications between the city and the developer. The city responded that the project had "the potential to be controversial"; that such communications therefore "were always made by and between legal counsel" for the city and the developer; and consequently all the communications were privileged. The challenger filed a motion to augment the administrative record by compelling the city to include the assertedly privileged communications. The trial court denied the motion, leading to these writ proceedings.
We reject the challenger's argument that CEQA's provisions defining the administrative record abrogate the attorney-client privilege and the attorney
We conclude, however, that the common interest doctrine, which is designed to preserve privileges from waiver by disclosure under some circumstances, does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to approval of the project. This is because, when environmental review is in progress, the interests of the lead agency and a project applicant are fundamentally divergent. While the applicant seeks the agency's approval on the most favorable, least burdensome terms possible, the agency is dutybound to analyze the project's environmental impacts objectively. An agency must require feasible mitigation measures for all significant impacts and consider seriously and without bias whether the project should be rejected if mitigation is infeasible or approved in light of overriding considerations.
The applicant and agency cannot be considered to be advancing any shared interest when they share legal advice at the preapproval stage. Under established principles, this means that the common interest doctrine does not apply. After approval, by contrast, the agency and applicant have a united interest in defending the project as approved, and privileges are not waived by disclosures between them from that time onward. In making this distinction between preapproval and postapproval disclosures, we potentially disagree with California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217, 1222-1223 [94 Cal.Rptr.3d 902] (California Oak), in which the court found the common interest doctrine to be applicable to postapproval disclosures between an applicant and a lead agency and perhaps also to preapproval disclosures between them. We will grant writ relief to allow the trial court to apply the rule we have stated.
In the unpublished portion of the opinion, we consider several additional topics. First, we discuss the showing necessary to establish the common interest doctrine's protection for any postapproval communications for which it may be claimed. Second, there are many other assertedly privileged documents that were not disclosed between the city and the developer. It will still be necessary for the trial court to reexamine those privilege claims because the court applied an incorrect standard in upholding them. In upholding all the challenged privilege claims without exception, the court expressed the view that the party asserting a claim of privilege need only assert it to obtain protection. In reality, the party asserting the privilege is required to make a showing of preliminary facts supporting the privilege. The court made no findings of these preliminary facts, and there is no substantial evidence in the record that would have supported those findings for any document. The city will be permitted to amend its submissions to make the necessary showings.
Finally, we reject four arguments for denying writ relief which are based on the allegations that (1) the challenger forfeited most of its challenges to the privilege claims by not presenting them properly in the trial court; (2) the challenger has not made a showing of prejudice; (3) the challenger failed to exhaust administrative remedies; and (4) the writ petition in this court is defective in form.
We issue a writ of mandate requiring the trial court to reconsider the claims of privilege in light of the holdings in this opinion.
Real parties in interest Wal-Mart Stores, Inc., and Wal-Mart Real Estate Trust (the developer) applied to the city for land use approvals necessary to build a 300,000-square-foot shopping center anchored by a 200,000-square-foot Wal-Mart store. On September 12, 2011, the city certified an environmental impact report (EIR) and approved the project. The challenger initiated proceedings in the superior court, claiming the city failed to comply with CEQA.
After the city prepared a draft index for the administrative record, the challenger sent a letter to the city, stating: "The index ... does not appear to include a single informal communication (such as [an] email or memo) between the agency and its consultants or the applicant. In my experience representing applicants as well as my experience with CEQA administrative records, there are typically lengthy communications between the applicant and the agency in this form and these are appropriately included in the record.... Yet the index is completely devoid of such communications or notes. In fact, it does not appear the agency staff/consultant e-mail accounts were reviewed for Communications related to this matter. Please explain whether this is an oversight that will be corrected or a deliberate omission. [¶] If the latter, please explain the basis for the omission and if claimed for reasons of privilege, please provide a privilege log or similar device...."
The challenger filed an objection to the certification of the record because of the omission of the communications. Later, the challenger filed a motion asking the trial court to order the city to augment the administrative record to include them. The motion argued that communications between the city and the developer, as well as the city's internal communications, were required to be included in the administrative record by section 21167.6, subdivision (e). The challenger further argued that, because section 21167.6 states that it applies "`notwithstanding any other provision of law,'" no privileges applied.
In its opposition to the motion, the city informed the court that it had agreed to provide a privilege log, although it continued to maintain that it was under no obligation to do so. The log, as later supplemented, listed 3,311 documents. An overwhelming majority of the log entries indicated that the city was claiming the attorney-client privilege, the protection of the attorney work product doctrine, or both. Many entries also indicated that, although the documents were disclosed between the city and the developer, waiver of privileges was prevented by the common interest doctrine. The log actually refers to a joint defense privilege, but, as we will explain, California has no joint defense privilege. The city's intention was to refer to the nonwaiver effect of the common interest doctrine.
As far as we can tell from the record, the city provided little information on the basis of which it would be possible to determine whether any of the claimed privileges or protections applied. A total of about three dozen names appear in the privilege log as the names of people by or to whom documents were sent. With a few exceptions, however, neither the log nor any declaration supporting it provides any information identifying these people, stating which of them are attorneys or clients, or explaining which parties they represented or worked for. From the record as a whole, we have been able to identify six of them as attorneys for the city or the developer. There was, however, no straightforward way to identify the other 30 or so individuals listed. Further, although the record contains four declarations related to the assertedly privileged documents, none of these state the declarants' personal knowledge that any of the documents were communications made in the course of an attorney-client relationship or were the work product of an attorney, with the exception of four items said to be attorney work product. Two declarations stated that the city and the developer sometimes disclosed privileged communications to each other and did so in pursuit of their common interests and with the expectation that the communications would remain confidential. The declarations did not, however, state that this was true, to the declarants' personal knowledge, regarding any or all of the common interest documents listed in the log except for four documents. For about 650 other documents where the protection of the common interest doctrine is claimed in the log, there are no supporting facts.
The court held its first hearing on the motion to augment on April 20, 2012. The parties had formal meet-and-confer discussions in a jury room, and the hearing was continued. After the April 20 hearing, the challenger provided the city with a list of 2,275 privilege claims that it was disputing. On May 18, 2012, the city sent a chart indicating its responses regarding these disputed items. The responses indicated that the city had decided to disclose, and had already disclosed, a significant number of the documents. For the majority, however, the city adhered to its privilege claims — at least provisionally.
In a letter to the court dated May 23, 2012, describing the "issues that still remain between the parties," the challenger reserved its right to maintain its challenges to the 2,275 items about which the city had supplied responses:
In a letter to the court dated May 24, 2012, the city stated that its review of the 2,275 challenges "has provided the opportunity to make necessary changes to the privilege log," and it would submit an amended log "when the City is sure that no further changes will need to be made." This implied the city was uncertain which of its privilege claims actually were valid.
In his letter to the court dated May 23, 2012, the challenger's counsel described the city's production of "thousands of documents" after the April 20 hearing. These are documents conceded to be within CEQA's description of the administrative record in section 21167.6, subdivision (e), but omitted from the administrative record that was certified by the city on December 19, 2011. Instead of promptly submitting these documents to the court to be included in the administrative record, the city apparently expected the challenger to review them and determine which ones it wanted to include. The city's position was that it did not object to the inclusion of any of them. In a letter to opposing counsel dated May 7, 2012, counsel for the city remarked that, although the privilege log "references a large number of administrative draft sections of the EIR," he found that it was "nearly impossible to match these documents to specific entries on the privilege log" his office had prepared months before. Further, the privilege log itself includes many entries for which privileges are claimed but no individuals are named as those participating in the communication. Ninety-three of these entries still had not been corrected by the time the parties submitted their final briefs preceding the July 6, 2012, hearing. This indicates that, at the time the city certified the administrative record and for seven months afterward, it never made a final determination of the documents it believed should be included in the administrative record or of the documents it wanted to claim it could withhold and why.
The court held another hearing on May 25, 2012. The court and parties discussed four categories of documents and agreed there were no other categories. The court and parties also expressed an expectation that the list of disputed documents would be narrowed by the time of the next hearing, so that the city and the developer could give a general indication of the substance and purpose of the documents, the challenger could make arguments based on that additional information, and the court could rule. The
When the simultaneous briefs were filed on June 26, 2012, it was obvious that the parties had not reached any agreement about the number of documents that remained in contention. The challenger attached to its brief a list of more than 500 documents and asked the court to order their disclosure. The city's brief discussed 25 documents, implying that only these remained in dispute, while the developer's brief asserted that the parties "have boiled the disputed issues down to" 19 documents and redactions in 13 other documents.
The belief of the city and the developer that a drastic reduction in the scope of the dispute had taken place appears to be based on the challenger's letter of June 14, 2012, in which the challenger discussed 50 documents. That letter did not, however, state that it contained the challenger's list of the privilege claims being challenged. Instead, it explained that it contained the challenger's remarks on certain documents the city and developer had already produced, some of which the challenger was arguing should be included in the administrative record. It also stated the challenger's responses to a new set of privilege claims asserted by the city in a recent letter. The letter did not contain any agreement to abandon the challenges to any of the privilege claims.
On June 29, 2012, counsel for the city and the developer wrote to counsel for the challenger to express their "outrage" at the fact that a large number of documents remained in dispute; they claimed there was an "extreme disconnect" between the challenger's statements at the May 25 hearing and its list of disputed documents in its June 26 brief. Counsel for the challenger wrote back that the challenger "has repeatedly stated that [it] does not waive any rights or claims to documents" and "has never agreed to limit its request" for documents in the manner the city and the developer assumed.
The final hearing on the challenger's motion to augment the administrative record took place on July 9, 2012. The court expressed surprise that a large number of documents was still in dispute. "I got the impression we were down to 30-some odd documents," it said. This impression appears to have been derived from the city and developer's submissions alone, since the challenger's brief included a list of more than 500 disputed documents. The city's attorney said there were "[c]lose to 700," the developer's attorney agreed, and the court often referred to that figure, but we have found no basis for it in the record.
The court later said it felt "blindsided" by the fact that the challenger was still challenging several hundred of the city's original 3,311 privilege claims. "I went from 32 documents, and now I'm supposed to do 700," it added, again apparently relying on the city's and the developer's representations about only a few documents being in dispute.
"That's not what I had in mind." A moment later, it said, "And I'm not going to look at 700, so give me an example." Still later, it said, "I thought okay, well, 32, I can do 32. No problem. I can't do 700...."
Several times, the court stated its view that a party asserting a privilege had no burden beyond the mere assertion itself, while the party opposing the privilege claim had a burden of proving the privilege was inapplicable:
"You have the burden. They claim attorney/client privilege. They have the right to claim that as officers of the court. It's your obligation, your burden, to tell me why they're not attorney/client privilege. [¶] ... [¶]
Finally, saying, "I don't know what else to do with this," and "I'm getting to the point where we need to get this thing resolved one way or the other," the court made a blanket ruling upholding all the privilege claims
The challenger filed its petition for a writ of mandate in this court on September 7, 2012, seeking relief from the trial court's order. The petition argues that the allegedly privileged documents should be ordered included in the administrative record because section 21167.6 renders all privileges inapplicable. Alternatively, the petition argues that several hundred of these documents should be ordered included in the administrative record because respondents never made the necessary showing of preliminary facts to establish that the privileges apply to the documents for which they are claimed.
We issued a stay order on September 17, 2012. On the same day, the city filed a "Preliminary Opposition" to the writ. On September 18, 2012, Wal-Mart filed an "Informal Opposition."
The preliminary and informal opposition briefs make six arguments: (1) The matter is not ripe for review because the trial court has not filed a written order embodying its ruling from the bench, and Court of Appeal, Fifth District, Local Rules, rule 3(b) (rule 3(b)), requires a "a copy of the order or judgment from which relief is sought" to be attached to the writ petition. (2) The city and developer "are currently asking the trial court to directly address" their purported failure to establish the preliminary facts necessary to
On October 3, 2012, we issued an order to show cause why relief should not be granted. Included in the order to show cause was a briefing order, stating:
"The parties' submissions should include, but need not be limited to, responses to the following questions:
"1. Did respondents sustain their burden of establishing preliminary facts necessary to support all their claims of attorney-client privilege and attorney work product protection? If not, what additional declarations or other evidence must they submit to sustain this burden? Is their burden different when the privilege log shows that an attorney merely received a `cc' of a document?
"2. For communications between the city and its attorneys and for work product of the city's attorneys, disclosure to Wal-Mart waives privileges unless the common interest doctrine applies. Likewise, for communications between Wal-Mart and its attorneys and for work product of Wal-Mart's attorneys, disclosure to the city waives privileges unless the common interest doctrine applies.
"(a) For privilege log entries that show disclosure between the city and Wal-Mart, which side has the burden of showing that privileges are or are not preserved under the common interest doctrine? What facts must be shown? What kinds of evidence can show those facts? Does the record contain substantial evidence on the basis of which the trial court could find that the doctrine protected each document for which it was claimed, assuming respondents had a burden of producing such evidence? Should the trial court have conducted an in-camera review to determine whether the common-interest doctrine applies to each document for which it was claimed? (See OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874 [9 Cal.Rptr.3d 621].)
"3. Besides those already discussed in the petition and in respondents' informal opposition briefs, are there any arguments or authorities that would help the court to determine whether the clause `[n]otwithstanding any other provision of law' in Public Resources Code section 21167.6 should be construed as superseding or limiting any privileges? (See, e.g., Remy, et al., Guide to CEQA (11th ed. 2006) pp. 859-861.)
"4. According to the privilege log, many of the items challenged by petitioner not only are privileged, but also are excluded from the administrative record because they are `drafts' within the meaning of Public Resources Code section 21167.6, subdivision (e)(10). Does petitioner intend to challenge the `draft' designation of these items, or instead to concede that because of the designation, petitioner's challenges to the privileges claimed for those items are moot? If petitioner intends to challenge the designations, what are the grounds for the challenge?
"If petitioner states in its traverse that it intends to challenge the `draft' designations, respondents will be permitted to file an additional brief in response within 10 business days after the filing of the traverse."
The city and developer filed returns in which they expanded on their earlier arguments and responded to the court's questions. The challenger filed a traverse, responding to the court's questions and stating that it intended to continue to challenge the "draft" designations. The city filed a reply to the traverse. We granted leave to amici curiae California State Association of Counties and League of California Cities to file a joint brief in support of the city and the developer.
The challenger's most sweeping argument is that section 21167.6, subdivision (e), supersedes evidentiary privileges because it requires materials to be
Section 21167.6 provides:
"Notwithstanding any other provision of law, in all actions or proceedings brought pursuant to [CEQA's judicial review provisions], except those involving the Public Utilities Commission, all of the following shall apply: [¶] ... [¶]
"(e) The record of proceedings shall include, but is not limited to, all of the following items:
"(1) All project application materials.
"(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project.
"(3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division.
"(4) Any transcript or minutes of the proceedings at which the decisionmaking body of the respondent public agency heard testimony on, or considered any environmental document on, the project, and any transcript or minutes of proceedings before any advisory body to the respondent public agency that were presented to the decisionmaking body prior to action on the environmental documents or on the project.
"(5) All notices issued by the respondent public agency to comply with this division or with any other law governing the processing and approval of the project.
"(6) All written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation.
"(8) Any proposed decisions or findings submitted to the decisionmaking body of the respondent public agency by its staff, or the project proponent, project opponents, or other persons.
"(9) The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division.
"(10) Any other written materials relevant to the respondent public agency's compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency's files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.
"(11) The full written record before any inferior administrative decisionmaking body whose decision was appealed to a superior administrative decisionmaking body prior to the filing of litigation." Section 21167.6 also provides that the lead agency "shall prepare and certify the record of proceedings" and "shall lodge a copy of the record of proceedings with the court...." (§ 21167.6, subd. (b)(1).)
Several provisions of section 21167.6, subdivision (e), are of significance in this case, as they would require inclusion in the administrative record of types of documents the city apparently withheld, unless privileges are applicable and have not been waived by disclosure. Subdivision (e)(7) — requiring inclusion of all "written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with [CEQA] or with respect to the project" — encompasses correspondence between the applicant and agency pertaining to the project. Subdivision (e)(10) includes "all internal agency communications, including staff notes and memoranda related to the project or to compliance with [CEQA]." Any materials for which the city claimed a privilege because they were communications among city staff in which the city's counsel was included would fall within this provision, but for the privilege. Other provisions could be at issue as well. For instance, if an attorney was involved in the communication, the city might have withheld "staff reports and related documents prepared by the respondent public agency" that are relevant to CEQA compliance, the agency's action on the project, or the agency's findings, and that would belong in the administrative record if privileges are not applicable. (§ 21167.6, subd. (e)(2), (3).)
The challenger contends that, because section 21167.6, subdivision (e), applies "[n]otwithstanding any other provision of law," its plain meaning requires inclusion in the administrative record even of documents that fall within the attorney-client privilege and the attorney work product doctrine. The challenger relies on the fact that, generally speaking, the expression "`notwithstanding any other provision of law'" is "a `"term of art'" ... that declares the legislative intent to override all contrary law." (Klajic v. Castaic Lake Water Agency (2004) 121 Cal.App.4th 5, 13 [16 Cal.Rptr.3d 746], citation omitted.) The city and developer rely on California Oak, supra, 174 Cal.App.4th at page 1221, which held that "[s]ection 21167.6 is not an abrogation of the attorney-client privilege or work product" doctrine. As the challenger points out, however, the California Oak opinion does not discuss the effect of the phrase "notwithstanding any other provision of law."
The party claiming the privilege usually makes the preliminary showing via declarations. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) ¶ 8:192, p. 8C-52 (rev. # 1, 2012).) In general, the court cannot require disclosure for in camera review of materials assertedly protected by attorney-client privilege. (Evid. Code, § 915; Costco, supra, 47 Cal.4th at pp. 736-737.)
"(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
The attorney is the holder of this privilege. (Lasky, Hass, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264, 271 [218 Cal.Rptr. 205].) A party asserting the privilege must "prove the preliminary facts to show that the privilege applies." (Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 447 [120 Cal.Rptr. 787].) When a party asserts the absolute
The purpose of the attorney-client privilege is to enhance the effectiveness of our adversarial legal system by encouraging full and candid communication between lawyers and clients. (See, e.g., City & County of S. F. v. Superior Court (1951) 37 Cal.2d 227, 235 [231 P.2d 26].) The purposes of the work product doctrine are to "[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases," and to "[p]revent attorneys from taking undue advantage of their adversary's industry and efforts." (Code Civ. Proc., § 2018.020.)
The question presented here is difficult. California Oak does not explain why "any other provision of law" does not include the provisions establishing privileges. Roberts v. City of Palmdale (1993) 5 Cal.4th 363 [20 Cal.Rptr.2d 330, 853 P.2d 496] (Roberts), on which the city and developer also rely, does not present an analogous situation. There, our Supreme Court held that the California Public Records Act (Gov. Code, § 6250 et seq.) and the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) did not abrogate the attorney-client privilege and require disclosure of an attorney's letter communicating legal advice to a city council. Both the public records act and the Brown act, however, have provisions expressly making exceptions to disclosure for privileged communications. (Roberts, supra, at pp. 370, 379.) CEQA does not.
Our conclusion does not render meaningless the phrase "[n]otwithstanding any other provision of law" in section 21167.6. The phrase applies to the whole of section 21167.6, not just subdivision (e). One main effect the phrase has is to distinguish CEQA's mandamus procedures from some of the procedures for mandamus actions generally, which are set out in the Code of Civil Procedure.
The challenger argues that, because the interests of a lead agency and a project applicant diverge fundamentally while the project application is pending, the common interest doctrine does not operate to prevent waiver of privileges when the agency and applicant disclose communications to each other during the application's pendency. We agree.
The dispute over the administrative record in this case began when the challenger noticed that the record certified by the city contained no communications between the city and the developer. The city responded by saying that all these communications were privileged because they were made through counsel, and privileges were not waived by disclosure because of the common interest doctrine. The doctrine therefore is central to the case.
The doctrine is based on Evidence Code sections 912 and 952:
"A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege) ..., when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer ... was consulted, is not a waiver of the privilege." (Evid. Code, § 912, subd. (d).)
It is this last notion, "joint concern," that is the basis of the common interest doctrine. Evidence Code sections 912 and 952, however, make no reference to common interests or joint concerns; they refer instead to a reasonable necessity of disclosure. Those two sections give rise to the common interest doctrine. This is because, in limited situations, the alignment of the parties' common interests may mean disclosures between them are reasonably necessary to accomplish the purposes for which they are consulting counsel.
With this background in mind, we turn to whether a lead agency can share with the project applicant a preapproval interest in the creation of a legally defensible EIR that supports the applicant's proposal. It is important to be clear at the outset that the common interest, if there is any, is in the creation of a legally defensible environmental document that supports the applicant's proposal. There is no point in asking, as the city and developer in this case would have it, whether the applicant and agency have a common interest simply in the development of a legally defensible environmental document. This is because the developer has no interest in the development of an environmental document that does not support the developer's proposal.
In Save Tara, the city entered into an agreement to develop property conditioned on subsequent environmental review and CEQA compliance. Before environmental review was completed, the city lent money to the developer for preparatory activities, announced publicly that it was determined to proceed with the project, and began relocating tenants whom the project would displace. (Save Tara, supra, 45 Cal.4th at pp. 140-142.) Our Supreme Court held that the city violated CEQA because it was committed to the project before going through environmental review. The defect in the proceedings was that the city's actions tended "strongly to show that City's
In our view, the lead agency's obligation not to commit to the project in advance, but instead to carry out an environmental review process and create environmental documents that reveal the project's impacts without fear or favor, and only then make up its mind about project approval, means 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 primary 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.
The conflict between the agency's interests and the applicant's is far from being only theoretical. For many issues of the first degree of importance — whether an impact is significant or a mitigation measure is feasible, for instance — there may be substantial evidence on both sides. Either conclusion might survive judicial review. It is on issues like these that the preparers of environmental documents must make their most crucial decisions. On these issues, the interests of the agency and applicant are opposed, even though they share an interest in producing a document that will be legally sufficient. The agency's duty is to present the conclusion best supported by the facts, while the applicant's interest is to present the conclusion most favorable to its proposal. These often will be opposite conclusions, although either would be legally sufficient.
In saying this, we do not mean to imply that the members of an agency's governing board are legally prevented from having a favorable opinion of a project from the outset. We also do not mean to imply that the agency and applicant should not work together on the EIR. Agencies and applicants routinely do so and CEQA contemplates that they will. The point is simply that the lead agency, as an agency, cannot have any commitment to the project as proposed until after environmental review is complete. This means its interests as it pursues the environmental review process are fundamentally not aligned with those of the applicant, and preapproval disclosure of communications by one to the other waives any privileges the communications may have had.
One case is cited by the city and the developer that arguably contains a holding contrary to ours. In California Oak, supra, 174 Cal.App.4th 1217, a county considering a project subject to CEQA received four documents from its outside counsel, which had been retained to advise it on CEQA compliance. The county disclosed the documents to counsel for the developer. (California Oak, supra, at p. 1221.) The county claimed the documents were protected by the attorney-client privilege, and the common interest doctrine prevented waiver by disclosure to the developer. The challengers moved unsuccessfully for an order compelling the county to include the documents in the administrative record. On appeal, they argued that section 21167.6 superseded the attorney-client privilege, and the common interest doctrine did not apply. (California Oak, supra, at pp. 1220-1221.) The Court of Appeal rejected these arguments. On the common interest doctrine, the court stated: "[The challenger] argues that [the county's] communication to [the developer] was not reasonably necessary for the accomplishment of the purpose for which [the county] took advice from the outside counsel. To wit: `[T]his purpose — to achieve compliance with CEQA — differed from [the developer's] purpose, which was to defend their permits against a CEQA [lawsuit].' [The challenger] takes too crabbed a view of [the county's] purpose in considering the advice of the outside counsel. [¶] The purpose of achieving compliance with the CEQA law, reasonably viewed, entails a further purpose. It includes producing an EIR that will withstand a legal challenge for noncompliance. Thus, disclosing advice to a codefendant in the subsequent joint endeavor to defend the EIR in litigation can reasonably be said to constitute `"involvement of third persons to whom disclosure is reasonably necessary to further the purpose of the [original] legal consultation."'" (California Oak, supra, 174 Cal.App.4th at pp. 1222-1223, italics added.)
The city and the developer argue that the court's remarks imply that it intended to refer to all privileged communications between the agency and applicant, not just those taking place after project approval. They say the statement that the agency's purposes include producing a legally sufficient EIR mean the court "must have been addressing communications relating to the production of a legally compliant EIR, not just defending an already approved EIR." If so, we disagree for the reasons we have stated and decline to follow California Oak.
As we have already indicated, the situation is different after project approval. Then the agency's and applicant's interests are aligned, assuming the approval has not left any dispute remaining between them. Both are legitimately committed to the same thing at that point — defending the project as approved. Under those circumstances, there is nothing about the agency-applicant relationship that would stand in the way of applying the common interest doctrine, assuming its elements are satisfied with respect to the particular communications for which its protection is claimed.
Let a writ of mandate issue directing the superior court to do all of the following:
(1) vacate its order sustaining the city and developer's privilege claims;
(2) permit the city to amend its submissions to make the necessary showing of preliminary facts to support its privilege claims;
(3) based on the city's amended submissions, reconsider all privilege claims contested by the challenger, sustaining only those that are adequately supported under the standards expressed in this opinion; and,
(4) overrule all privilege claims for communications disclosed between the city and developer before September 12, 2011.
Costs are awarded to Citizens for Ceres.
Cornell, J., and Franson, J., concurred.