The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 11, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.
Review Granted
Ardon v. City of Los Angeles, S223876—Review Granted—March 11, 2015.
This case presents the following questions: (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act (PRA) request waive those privileges and protections? (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them?
After obtaining documents from a PRA request, plaintiff’s counsel informed the defendant City that she had obtained a document that appeared to have been prepared in response to two other documents listed in the privilege log and which disclosed the contents of those two other documents. The City responded that the documents had been inadvertently produced. It demanded that plaintiff’s counsel return the documents and agree not to rely on them in any way. Plaintiff’s counsel declined, contending the City had waived any claim of privilege. The City moved to compel the return of the three documents and to disqualify plaintiff’s counsel. The trial court denied the City’s motion, concluding that the production of the documents waived any privilege that previously attached to them, regardless of whether the production was due to mistake, inadvertence or excusable neglect.
The Court of Appeal, Second District, Division Six, held in a published decision, Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175, that (1) disclosures pursuant to the PRA that are made inadvertently, by mistake or through excusable neglect, do not waive any privilege that would otherwise attach to the production. Government Code section 6254.5 unambiguously expresses the Legislature’s intention that everything produced in a response to a PRA request must be accessible to everyone except in the limited circumstances stated in the statute itself. The court also held that such an exception would confer on the public entity the power to make selective disclosures through “low level employees” and thereby extinguish the provision in the PRA intended to make such disclosures available to everyone. (2) Finally, the court held that plaintiff’s counsel’s exercise of her statutory and constitutional rights to petition the government regarding a matter of public importance was entirely within the scope of permitted professional conduct, and there was thus no basis to disqualify her or any member of her law firm under Rule of Professional Conduct 2-100.
Cleveland National Forest Foundation v. San Diego Association of Governments (People), S223603—Review Granted and Issues Limited—March 11, 2015.
The question is whether an environmental impact report (EIR) for a regional transportation plan must include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals set forth in Executive Order No. S-3-05, in order to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).
The Court of Appeal, Fourth District, Division One, held in a published decision, Cleveland National Forest Foundation v. San Diego Association of Governments (People) (2014) 231 Cal.App.4th 1056, that CEQA requires a discussion of mitigation alternatives that could both substantially lessen the transportation plan’s significant greenhouse gas emissions impacts and feasibly be implemented. A few examples of goals that would comply with Executive Order No. S-3-05 include: supporting the planning and development of smart growth areas through transportation investments and other funding decisions; offering incentives for transit-oriented developments in smart growth areas; coordinating the funding of low carbon transportation with smart growth development; and encouraging parking management measures that promote walking and transit use in smart growth areas.
Justice Patricia Benke dissented, disagreeing with the majority that CEQA had any impact on the substance of the EIR.
Review Denied (with dissenting justices)
None.
Depublished
None.
