In a detailed 6-page order, issued by Presiding Justice McConnell and filed on August 25, 2020, the Fourth District Court of Appeal denied three petitions for rehearing, and “polished up” its lengthy published opinion filed at the end of last month in Golden Door Properties, LLC et al v. Superior Court of San Diego (County of San Diego, et al, Real Parties in Interest) (4th Dist. 2010) ____ Cal.App.5th ____.  (My August 5, 2020 post on the case can be found here.)  Most of the Court’s changes were minor and technical in nature, pertaining more to issues of concern to the parties on remand, rather than its major precedential holdings, but a few were noteworthy.

Slipped into a footnote was the Court’s sharp rebuttal to one of the County’s rehearing arguments in which it disclaimed a position attributed to it in the original opinion:

“In a rehearing petition, the County insists that it has never claimed it may destroy e-mails described in section 21167.6.  However, by asserting that section 21167.6 “does not mandate document retention” and that Government Code section 26205.1 allows it to destroy records “not expressly required by law to be . . . preserved” – this is precisely the County’s position.”

In a substantially rewritten paragraph towards the end of the opinion, the Court refined and “beefed up” its analysis finding the common interest/joint defense doctrine protected certain shared lead agency County/real party developer communications (concerning earlier lawsuits) even prior to the advent of the project approval challenged in the CEQA action:

“On this record, the referee correctly determined that the common interest doctrine applied to avoid waiver of the attorney-client and attorney work product privileges with respect to communications between the County and Newland involving their joint-defense of the two pre-approval lawsuits.  The Vallecitos case and Records Action each sought to defeat, or at least mortally wound the Project, preapproval.  For example, in the Vallecitos case, Golden Door sought an injunction mandating that the County “cease its action in processing the proposed Newland Project, including its EIR and application for a subdivision map” until a lawful revised water supply assessment demonstrated “sufficient water supply” for the Project.  Moreover, the complaint in Vallecitos alleges that the water supply assessment had a “fatal flaw” and that processing Newland’s EIR based on that analysis would invalidate the EIR’s consideration of alternatives and mitigation.  The Records Action also sought to end the Project.  Golden Door sought an injunction prohibiting the County from “[p]rocessing . . . the Newland Sierra project EIR until the County has demonstrated compliance with . . . all applicable laws.””

A qualifying footnote added to the next page on the same topic stated:

“A common interest, limited to defending these two preapproval lawsuits, may keep the attorney-client and/or work product privileges intact; however, such common interest does not otherwise alter the County’s duties as lead agency under CEQA.”

In addition to making these, and other more minor changes, the Court denied Petitioners’ and the County’s requests for rehearing, granted their requests for judicial notice of certain recent Superior Court orders, and left its judgment unchanged.  As is the case with most appellate rehearing petitions in my experience – even ones that are granted – this case shows the result of the court’s decision usually remains the same, although it may use the occasion to shore up its reasoning and support, and polish up its opinion.

 

Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.