Court of Appeal Declines to Use Common-Interest Doctrine to Protect from Disclosure Communications Between City and Developer

The City of Ceres contemplated that litigation might arise from an application by Wal-Mart to build a shopping center.  Therefore, the City intentionally structured all communications between Wal-Mart and the City to be by and between lawyers only.  The City thought that in any subsequent litigation, the “attorney-to-attorney” communications would be protected from disclosure.  The City approved the project.  A group filed a CEQA action to block the project.  A necessary step in CEQA litigation is the preparation of the administrative record.  The group noticed that the record did not have any communications between the City and Wal-Mart.  The City claimed that because all communications were held by and between attorneys, they were privileged.  The trial court agreed with the City and the group filed a petition for writ of mandate.

On Monday, the Fifth District Court of Appeal weighed in and held that when a city and a developer communicate about a project through attorneys, those communications that occur before the project is approved are not protected from disclosure under the common-interest doctrine.  In concluding that the common-interest doctrine did not apply, the Court observed that “the developer has no interest in the development of an environmental document that does not support the developer’s proposal.”  The City, on the other hand, is neutral and its interest is in compliance with CEQA.  These two interests fundamentally conflict and per se preclude the application of the common-interest doctrine.

You can review the decision in Citizens for Ceres v. Superior Court (July 8, 2013 F065690) here.