Filed 6/25/15 Consolidated Irrigation Dist. v. Super. Ct. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

CONSOLIDATED IRRIGATION DISTRICT,
                                                                                           F070584
         Petitioner,
                                                                           (Super. Ct. No. 14CECG00877)
                   v.

THE SUPERIOR COURT OF FRESNO                                                             OPINION
COUNTY,

         Respondent;

CITY OF REEDLEY,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Dennis A.
Peterson, Judge.
         Law Offices of P. Scott Browne, P. Scott Browne and Marsha A. Burch for
Petitioner.
         No appearance for Respondent.
         Aleshire & Wynder, John W. Fox and Shannon L. Chaffin for Real Party in
Interest.
                                                        -ooOoo-
        Consolidated Irrigation District (District) filed an extraordinary writ petition
seeking appellate review of Superior Court of Fresno County’s order, which denied relief
to enforce District’s right to inspect or receive a copy of any public record or class of
public records under the California Public Records Act (CPRA) (Gov. Code,1 § 6250 et
seq.), inter alia. We grant the petition.
                                      BACKGROUND
        District and the City of Reedley (City), the real party in interest, are presently
engaged in proceedings brought under the California Environmental Quality Act (CEQA)
(Pub. Resources Code, § 21000 et seq.). Specifically, District “challenges the City’s
February 25, 2014 approval of the Reedley General Plan 2030 Update and proposed
Sphere of Influence Update[/]Amendment … [(]‘Project[’)] and … certification of an
environmental impact report (‘EIR’) for the Project.”
        On March 27, 2014, District petitioned the superior court for a writ of mandate
pursuant to CEQA and a writ of mandate, injunctive relief, and declarative relief pursuant
to CPRA. In the section titled “BACKGROUND FACTS,” District alleged, inter alia:

        “18. On January 28, 2014, [District] submitted a [CPRA] Request to the
        City requesting public records that made up the record of proceeding for the
        Project so it could prepare informed comments on the [final ]EIR and
        Project. [¶] … [¶]

        “27. On or about February 24, 2014, the City provided its response to
        [District]’s [CPRA] request. The City advised that it had excluded records
        that it considered privileged or exempt under the Deliberative Process
        exemption to [CPRA]. The City failed to provide a list of the documents
        withheld or omitted but a review of the documents provided, particularly
        the internal correspondence, demonstrates a paucity of the usual extensive
        email communications regarding a project that took nearly 5 years to
        complete. This is indicative that the City has improperly withheld large
        numbers of internal communications regarding the development of the EIR.
        The City has also failed to provide public records specifically requested,

1       Unless indicated otherwise, subsequent statutory citations refer to the Government
Code.


                                               2.
       such as the contract between the City and its environmental consultant.
       Such documents are critical to a determination whether the City proceeded
       in the manner required by law and fully disclosed in the EIR all information
       on impacts that it received during the preparation process.”
In the section titled “FOURTH CAUSE OF ACTION,” District contended:

       “87. … City has violated its mandatory duty under [CPRA] in failing to
       provide all of the public records requested and improperly claiming
       privilege and exemptions for many of the documents requested.

       “88. The documents are needed to prepare the Record of Proceeding in
       this case and the failure to provide them prevents [District] from
       completing the preparation of the Record of Proceeding.”
       In June 6, 2014, responses to District’s special interrogatories, City stated that it
did not provide (1) some of the files in the possession of its consultant, EMC Planning
Group, Inc. (EMC), because they were “beyond the scope” of CPRA; and (2)
approximately 300 e-mails between its staff, legal counsel, and consultants on the
grounds of attorney-client privilege, attorney work product doctrine, and deliberative
process privilege.
       On July 25, 2014, District filed a motion for injunctive relief to enforce CPRA,
which alleged:

              “[District] requested the consultant files relating to the 2030 General
       Plan Update in its original request under [CPRA]. The City failed to
       provide them. Those files are part of the CEQA record and the City is
       obligated to provide them under well-established caselaw. [District]
       therefore is seeking for the Court to order the City to provide those files to
       [District] or make them available for inspection at City offices. [District] is
       also seeking to have the Court order the preparation of a document by
       document privilege log so that [District] and the Court can review it and a
       determination can be [made] after an in camera inspection, of what
       documents or portions of documents should be disclosed as authorized by
       … [s]ection 6259. Finally, [District] is seeking certain specific documents
       referenced in emails that do not appear to be in the record.”
District also identified the 300 withheld e-mails in the accompanying memorandum of
points and authorities.



                                              3.
         On October 27, 2014, the superior court issued the following tentative ruling:

                “The verified [March 27, 2014,] petition does not show what ‘certain
         public records are being improperly withheld from a member of the public.’
         (Gov. Code, § 6259.) Here, the petition only states that … City … has
         violated its mandatory duty under [CPRA] in failing to provide all of the
         public records requested and improperly claiming privilege and exemptions
         for many of the documents requested…. [¶] … [¶]

                “In camera proceedings by the court to determine the applicability of
         enumerated privileges are available only in certain situations. (Gov. Code,
         § 6259.) Without knowing what the public records are that are being
         sought from the face of the petition, or the reasons they are being withheld
         by the public agency, the Court cannot determine if one of the enumerated
         privileges applies and if an in camera proceeding is warranted.”
Following an October 31, 2014, hearing,2 the court adopted its tentative ruling via minute
order.
         On December 10, 2014, District filed an extraordinary writ petition and a request
for an immediate stay. We stayed further proceedings in the superior court on
December 24, 2014, and issued an order to show cause on December 29, 2014.
                                       DISCUSSION3
I.       Overview of CPRA.
         CPRA “was enacted for the purpose of increasing freedom of information by
giving members of the public access to information in the possession of public agencies.”
(Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425; see § 6250 [“[T]he Legislature,
mindful of the right of individuals to privacy, finds and declares that access to


2      At the hearing, City offered District a disc containing EMC’s files, but still
asserted attorney-client privilege with respect to the e-mails.
3     Since it appears that City disclosed EMC’s files (see ante, fn. 2), we focus on the
withheld e-mails.
       We are only required to state the grounds upon which our decision is based. We
need not address every argument raised by the parties. (Lewis v. Superior Court (1999)
19 Cal.4th 1232, 1264.)


                                              4.
information concerning the conduct of the people’s business is a fundamental and
necessary right of every person in this state.”].) “Any person may institute proceedings
for injunctive or declarative relief or writ of mandate in any court of competent
jurisdiction to enforce his or her right to inspect or to receive a copy of any public record
or class of public records ….” (§ 6258.)
       “Whenever it is made to appear by verified petition to the superior court of the
county where the records or some part thereof are situated that certain public records are
being improperly withheld from a member of the public, the court shall order the officer
or person charged with withholding the records to disclose the public record or show
cause why he or she should not do so. The court shall decide the case after examining the
record in camera, if permitted by subdivision (b) of [s]ection 915 of the Evidence Code,[4]
papers filed by the parties and any oral argument and additional evidence as the court
may allow.” (§ 6259, subd. (a).) “If the court finds that the public official’s decision to
refuse disclosure is not justified under [s]ection[s] 6254[5] or 6255,[6] he or she shall order


4       “When a court is ruling on a claim of privilege under [Evidence Code section 1040
et seq.] (official information and identity of informer) or under [Evidence Code
section 1060] (trade secret) or under subdivision (b) of [Code of Civil Procedure
section 2018.030] (attorney work product) and is unable to do so without requiring
disclosure of the information claimed to be privileged, the court may require the person
from whom disclosure is sought or the person authorized to claim the privilege, or both,
to disclose the information in chambers out of the presence and hearing of all persons
except the person authorized to claim the privilege and any other persons as the person
authorized to claim the privilege is willing to have present. If the judge determines that
the information is privileged, neither the judge nor any other person may ever disclose,
without the consent of a person authorized to permit disclosure, what was disclosed in the
course of the proceedings in chambers.” (Evid. Code, § 915, subd. (b).)
5      “[T]his chapter does not require the disclosure of … [¶] … [¶] … [r]ecords, the
disclosure of which is exempted or prohibited pursuant to federal or state law, including,
but not limited to, provisions of the Evidence Code relating to privilege.” (§ 6254,
subd. (k).)
6      “The agency shall justify withholding any record by demonstrating that the record
in question is exempt under express provisions of this chapter or that on the facts of the

                                              5.
the public official to make the record public. If the judge determines that the public
official was justified in refusing to make the record public, he or she shall return the item
to the public official without disclosing its content with an order supporting the decision
refusing disclosure.” (Id., subd. (b).)
       Section 6259, subdivision (c), specifies that an extraordinary writ petition is the
sole avenue of appellate review: “[A]n order of the court, either directing disclosure by a
public official or supporting the decision of the public official refusing disclosure, is not a
final judgment or order … from which an appeal may be taken, but shall be immediately
reviewable by petition to the appellate court for the issuance of an extraordinary writ.”
“The purpose of … limiting appellate review of the trial court’s order to a petition for
extraordinary writ is to prohibit public agencies from delaying the disclosure of public
records by appealing a trial court decision and using continuances in order to frustrate the
intent of [CPRA].” (Filarsky v. Superior Court, supra, 28 Cal.4th at pp. 426-427.)

II.    Appellate review by way of extraordinary writ petition is appropriate
       in the instant case.
       An appellate court will grant an extraordinary writ petition if the petitioner (1)
does not have another adequate remedy at law; and (2) will suffer irreparable injury if the
writ is not issued. (Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194
Cal.App.4th 288, 299-300.) Both prerequisites are satisfied in this case.
       Section 6259, subdivision (c), “unambiguously forecloses an appeal and instead
expressly authorizes a writ as the sole and exclusive means to challenge the trial court’s
ruling.” (MinCal Consumer Law Group v. Carlsbad Police Dept. (2013) 214
Cal.App.4th 259, 264.) “Although appellate review by extraordinary writ petition is said
to be discretionary” (Powers v. City of Richmond (1995) 10 Cal.4th 85, 113), “[t]he
discretionary aspect of writ review comes into play primarily when the petitioner has

particular case the public interest served by not disclosing the record clearly outweighs
the public interest served by disclosure of the record.” (§ 6255, subd. (a).)


                                              6.
another remedy by appeal” (ibid.). “When an extraordinary writ proceeding is the only
avenue of appellate review, a reviewing court’s discretion is quite restricted.” (Ibid.)
The Supreme Court explained:

       “‘“[I]ssuance [of an extraordinary writ] is not necessarily a matter of right,
       but lies rather in the discretion of the court, but where one has a substantial
       right to protect or enforce, and this may be accomplished by such a writ,
       and there is no other plain, speedy and adequate remedy in the ordinary
       course of law, he [or she] is entitled as a matter of right to the writ, or
       perhaps more correctly, in other words, it would be an abuse of discretion
       to refuse it.”’ [Citations.]” (Id. at p. 114.)
In the absence of writ review, District would “suffer harm or prejudice in a manner that
cannot be corrected on appeal” (Omaha Indemnity Co. v. Superior Court (1989) 209
Cal.App.3d 1266, 1274) since it cannot otherwise contest the superior court’s erroneous
finding that the March 27, 2014, petition lacked sufficient detail (see at pp. 8-10, post).
       That the ruling affects the contents of the administrative record in the underlying
CEQA action (see Pub. Resources Code, § 21167.6; see also Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 574-576 [CEQA litigants may not rely on
or cite to evidence outside of the administrative record except in rare instances]) also
militates in favor of writ review. “The Legislature has provided for expedited review of
CEQA cases” (County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 12), as
shown by “the time limits for compilation of the administrative record in subdivision (b)
and (c) of [Public Resources Code] section 21167.6” (id., at p. 12), inter alia. As a result,
“‘“‘the remedy by appeal is rendered inadequate in the [CEQA] context ….’”’” (Ibid.)
(See 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act
(Cont.Ed.Bar 2d ed. 2015) § 23.73, p. 23-88 [“[Extraordinary writ] petition may be the
only available remedy when a challenger claims the trial court improperly excluded
confidential documents from the record on the basis of an asserted privilege.”].) In
addition, the Third Appellate District concluded in a recent decision that a CEQA party
who appeals from a ruling wrongly excluding purportedly privileged e-mails from the


                                              7.
administrative record must first seek and obtain writ review of said ruling; otherwise, the
party cannot demonstrate prejudicial error on appeal. (Citizens for Open Government v.
City of Lodi (2012) 205 Cal.App.4th 296, 305-310.)
III.   District pleaded sufficient facts in its March 27, 2014, petition.

       a. Standard of review.
       “[W]e shall conduct an independent review of the trial court’s ruling [under
CPRA].” (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1336; accord,
Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 708-709.)
       b. Analysis.
       Section 6259, subdivision (a), calls for a “verified petition” detailing that “certain
public records are being improperly withheld from a member of the public ….” A
petition is “generally subject to the general rules of pleading applicable to civil actions.”
(Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271; see Code Civ. Proc.,
§ 1109.) Traditionally, a pleading needed to set forth ultimate facts, not evidentiary facts
or legal conclusions. (See Green v. Palmer (1860) 15 Cal. 411, 414-415; see also Rhode
v. Bartholomew (1949) 94 Cal.App.2d 272, 279 [“Ultimate facts are the logical
conclusions deduced from certain primary facts evidentiary in character.”].) However,
“the distinction between ultimate facts, conclusions of law, and evidentiary matter is one
of degree only, and the decisions often appear to be haphazard and inconsistent.” (4
Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 378, p. 514.)
       Nowadays, under the modern “fair-notice test” (Ludgate Ins. Co. v. Lockheed
Martin Corp. (2000) 82 Cal.App.4th 592, 608), a pleading “is required only to set forth
the essential facts of [a] case with reasonable precision and with particularity sufficient to
acquaint a defendant with the nature, source and extent of [the] cause of action”
(Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245; see Code Civ. Proc.,
§ 452 [“In the construction of a pleading, for the purpose of determining its effect, its



                                              8.
allegations must be liberally construed, with a view to substantial justice between the
parties.”]). “Less particularity is required when it appears that defendant has superior
knowledge of the facts, so long as the pleading gives notice of the issues sufficient to
enable preparation of a defense.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 458;
accord, Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550; see Burks v. Poppy
Construction Co. (1962) 57 Cal.2d 463, 474 [“[T]he particularity of pleading required
depends upon the extent to which the defendant in fairness needs detailed information
that can be conveniently provided by the plaintiff ….”].)
       Here, the superior court ruled that the March 27, 2014, petition “only states that …
City … has violated its mandatory duty under [CPRA] in failing to provide all of the
public records requested and improperly claiming privilege and exemptions for many of
the documents requested….” However, paragraph 27 of the petition’s
“BACKGROUND FACTS” (see Code Civ. Proc., § 425.10, subd. (a)(1)) specified that
(1) “the City provided its response to [District]’s [CPRA] request”; (2) “[t]he City
advised that it had excluded records that it considered privileged or exempt under the
Deliberative Process exemption to [CPRA]”; (3) “[t]he City failed to provide a list of the
documents withheld or omitted”; and (4) “a review of the documents provided,
particularly the internal correspondence, demonstrates a paucity of the usual extensive
email communications,” suggesting that “the City has improperly withheld large numbers
of internal communications regarding the development of the EIR.” Two months later,
City conceded in special interrogatory responses that it did not disclose roughly 300 e-
mails, citing attorney-client privilege, attorney work product doctrine, and deliberative
process privilege. The court should not have required District to be clairvoyant and
describe City’s withheld e-mails with even greater precision, given that City (1)
possessed superior knowledge of its own e-mails (2) mounted a defense in recognition of
the nature, source, and extent of District’s cause of action under CPRA; and (3) as the
party claiming several privileges, had “the burden of establishing the preliminary facts

                                             9.
necessary to support [their] exercise” (Costco Wholesale Corp. v. Superior Court (2009)
47 Cal.4th 725, 733).
                                        DISPOSITION
      Let an extraordinary writ issue directing the superior court to resolve the
substantive issue of whether City’s withheld e-mails are privileged and/or exempt from
California Public Records Act disclosure. The stay of further proceedings in the superior
court is vacated upon finality of this opinion. (State Water Resources Control Bd. v.
Superior Court (2002) 97 Cal.App.4th 907, 919.) Costs are awarded to petitioner. (Cal.
Rules of Court, rule 8.493(a)(1)(A).)

                                                               _____________________
                                                                  DETJEN, Acting P.J.
WE CONCUR:


 _____________________
 FRANSON, J.


 _____________________
 PEÑA, J.




                                            10.
