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Golden Door Properties, LLC v. Superior Court

Court of Appeal of California, Fourth Appellate District, Division One

July 30, 2020, Opinion Filed

D076605, D076924, D076993

Opinion

McCONNELL, P. J.Public Resources Code1 section 21167.6 prescribes the documents that “shall” be in the record of proceedings in a CEQA2 challenge to an environmental impact report (EIR). For example, under subdivision (e)(7) of that statute, “[a]ll written evidence or correspondence submitted to, or transferred from” the public agency with [*22]  respect to the project “shall” be included. Under subdivision (e)(10), the record “shall” also contain “all internal agency communications, including staff notes and memoranda” related to the project.

However, in this case the County of San Diego (County), as lead agency for the Newland Sierra project, no longer had “all” such correspondence, nor all “internal agency communications” related to the project. If those communications were by e-mail and not flagged as “official records,” the County's computers automatically deleted them after 60 days. When project opponents propounded discovery to obtain copies of the destroyed emails and related documents to prepare the record of proceedings, the County refused to comply.

After referring the discovery disputes to a referee, the superior court adopted the referee's recommendations to deny the motions to compel. The referee concluded that although section 21167.6 specifies the contents of the record of proceedings, that statute does not require that such writings be retained. In effect, the referee interpreted section 21167.6 to provide that e-mails encompassed within that statute are mandated parts of the record—unless the County has destroyed them first.

We disagree with that interpretation. [*23]  Preparing a record under section 21167.6 is not an end in itself, but rather the means for judicial review of CEQA determinations. A thorough record is fundamental to meaningful judicial review. Therefore, we hold that section 21167.6 requires the lead agency to retain such writings.

Moreover, in this case, to the extent the writings sought are encompassed within section 21167.6, subdivision (e), they are “official records” under the County's e-mail retention policies. Thus, the County should not have destroyed such e-mails, even under its own policies.

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2020 Cal. App. LEXIS 827 *

GOLDEN DOOR PROPERTIES, LLC, et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; COUNTY OF SAN DIEGO et al., Real Parties in Interest.

Notice: As modified Aug. 25, 2020.

Prior History: ORIGINAL PROCEEDINGS in mandate from Superior Court of San Diego County, No. 37-2018-00030460-CUTT-CTL, No. 37-2018-00054312-CU-TTCTL, No. 37-2018-00054559-CU-TT-CTL, Gregory W. Pollack [*1] , Judge.

Golden Door Properties, LLC v. Superior Court, 52 Cal. App. 5th 837, 2020 Cal. App. LEXIS 710 (July 30, 2020)

Disposition: Petition granted in part. Requests for judicial notice granted in part and denied in part.

CORE TERMS

e-mails, discovery, destroyed, exemption, log, deleted, compliance, environmental, destruction, retention, moot, extra-record, Guidelines, exhaustion, augment, staff, recommendations, notice, preapproval, disclosure, mandatory, correspondence, withholding, vacate, non-official, automatic, inclusion, rescinded, consolidated, referendum