Last year brought the legal profession many things that we never expected, like trials conducted by Zoom and virtual happy hours, just to name a few. But it also brought a handful of new CEQA and land use decisions that, like many of the events of 2020, reminded legal practitioners to focus on the fundamentals. In litigation, that includes document preservation, evidence, and remedies. These details, though often overlooked in writ proceedings, can make or break your case.

Document Preservation

Civil litigants who know or reasonably anticipate that litigation is on the horizon have a duty to preserve relevant documents or risk sanctions (including, in extreme cases, terminating sanctions). In Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal.App.5th 733, we were reminded that this rule applies with equal force to a public agency conducting CEQA review.

In 2014, San Diego County began considering an approximately 600-acre residential and commercial development adjacent to the upscale Golden Door spa and resort. Almost immediately, Golden Door raised concerns about the project’s environmental impacts, and informed the County it would oppose the development. Nonetheless, the County took no special precautions to preserve documents or suspend its automatic deletion of emails.

Four years later, after the publication of the project’s Draft Environmental Impact Report, Golden Door served the County with a Public Records Act request, seeking documents related to the project. In response, the County produced 42 emails. When questioned about the limited production, the County explained that it had a policy of automatically deleting emails after 60 days.

The Fourth District Court of Appeal held that the County’s automatic deletion policy is unlawful because it destroys official records that the County is required to maintain. Specifically, CEQA provides that a broad range of documents “shall” be part of the record, including all correspondence and written materials relevant to the public agency’s compliance with CEQA or its decision on the project. (Pub. Res. Code § 21167.6.) By automatically deleting emails, the County made it impossible to create the required record.

Without an adequate record, the County may not be able to demonstrate its compliance with CEQA, adequately inform the public about the project, or demonstrate to the Court that its decisions are supported by substantial evidence. In other words, like any civil litigant, the County risked being penalized in future litigation due to poor document retention policies. But this risk can be avoided. Public agencies (as well as developers who partner with them) can take steps to ensure that all documents relevant to a project’s approval are maintained, and available in the event of future litigation.

Evidence

Just as civil litigators know that documents need to be preserved, we also know that at trial, we need to present the evidence that proves our case. This means putting on reliable witnesses who can provide testimony that satisfies the legal standards we are trying to meet. And in Tiburon/Belvedere Residents United to Support the Trails v. Martha Company (2020) 56 Cal.App.5th 461, we learned that it doesn’t matter how many witnesses you put on if they don’t check these boxes.

Petitioners Tiburon/Belvedere Residents United to Support the Trails (TRUST) sought quiet title to privately owned property north of San Francisco based on an alleged implied dedication that occurred prior to 1972, when a change in law essentially abolished implied dedications. To prove its case, TRUST needed to show that the property at issue was used by the general public, openly and continuously, for a period of more than five years preceding 1972, with full knowledge of the owner, without asking or receiving permission, and without objection.

TRUST put on 28 witnesses who testified that from 1967 to 1972, they used the property for recreation, without permission from the owner, and without any objections. Despite the overwhelming number of TRUST witnesses, there were two fatal flaws in the evidence presented.

First, and perhaps as an unavoidable consequence of the passage of time, almost half of its witnesses were minors in 1972. As the court noted, children are “‘born trespassers’ who cannot establish a reasonable belief by the public of its right to use the property.”

Second, all of TRUST’s witnesses lived in the area at the time. In other words, their testimony did not demonstrate widespread use by the general public, but rather showed limited local use that the property owner may have consented to as a neighborly accommodation, or failed to notice due the low visibility associated with local, as opposed to widespread, use.

In contrast, the property owner, who had diligently saved photographs showing fences, gates, and no trespassing signs on the property during the relevant time period, presented testimony demonstrating that it attempted to prevent public use. This, combined with the TRUST’s failure of proof, secured judgment in the property owner’s favor.

The lesson here? Even if – or perhaps especially if – your case relies on events that occurred well in the past, the quality of your evidence matters. As you prepare for trial, make sure you have the witnesses, and the testimony, to prove each element of your claim.

Remedies

While we must focus on proving our case, we also can’t overlook the most important part – what we get if we win, and how to minimize our losses if we don’t. But in CEQA cases, it is common for petitioners to simply request that the project approvals be vacated, with little analysis or argument about how to craft that relief. Last year, Sierra Club v. County of Fresno (2020) 57 Cal. App. 5th 979, reminded us that we should take as much care with remedies in writ proceedings as we do with damages, declaratory relief, or other civil remedies.

Sierra Club is the most recent installment of the Friant Ranch saga, which first began in 2007, when the County of Fresno issued its notice of preparation of a draft Environmental Impact Report (EIR) for a 942-acre master planned community. After the project was approved in 2011, litigation ensued, and the case has been working its way through the courts ever since. In 2018, the California Supreme Court concluded that the EIR’s discussion of the project’s air pollution impacts was inadequate, and remanded the case for further proceedings. (See Sierra Club v. County of Fresno (2018) 6 Cal.5th 502.) On remand, the trial court issued the requested writ of mandate, ordering the County to vacate the Friant Ranch project approvals and prepare a revised EIR.

The developer argued that this remedy was improper, and that instead of vacating the project approvals in their entirety, the court should have ordered a partial decertification of the EIR. The Court of Appeal for the Fifth District disagreed, holding that the relevant statutory language does not allow for partial certification. CEQA requires that lead agencies “certify the completion” of an EIR, and its compliance with CEQA, in its entirety. (See Pub. Res. Code § 21100; 14 Cal. Code Regs. § 15090.) There is no half measure.

One provision does, however, opens the door for partial decertification. Public Resources Code section 21168.9 contemplates that a court may issue a writ of mandate voiding a “determination, finding, or decision” of a public agency “in whole or in part.” While that language could support partial decertification of an EIR, the Court of Appeal concluded it was not proper in Sierra Club because the EIR’s air quality analysis was not severable from the other aspects of the project approvals.

Setting aside the statutory language, and the question of severability, it is apparent that the trial court decertified the EIR in its entirety because this was the remedy sought by the petitioners. At no point prior to the issuance of the writ of mandate did the County or the developer argue that this relief was improper, or present an argument for partial, rather than full, decertification. If they had addressed the remedies before it was too late, and presented a full-throated argument for partial decertification, it is possible that they could have minimized the impacts of this loss.

2021 and Beyond

This year will likely bring the legal profession even more surprises. But taking care of the basics such as document preservation, evidence, and remedies can often make the biggest difference in disputes, no matter how large or complex.