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Walmart suit drags on and on

Walmart suit drags on and on

An artist's rendering of the proposed Walmart Supercenter which is likely to be tied up in court for an extended time.


POSTED November 27, 2013 10:09 a.m.
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The Walmart Supercenter and its Mitchell Ranch Shopping Center were approved by the Ceres City Council in 2011 but the building site at the northwest corner of Mitchell and Service roads remains vacant.

Will the project become a reality in the new year?

Not likely, said City Attorney Michael Lyions, who keeps abreast of the legal wrangling over the 26-acre project although he is not directly defending the city in its challenge by a group calling themselves Citizens for Ceres. The law firm of Meyers Nave is defending the city in what has become one of the most protracted lawsuits against Walmart in California.

"Citizens" is suing Walmart and the city of Ceres on their assertion that the city did not adequately follow environmental review law before the council approved the shopping center. Group spokesman Sherri Jacobson termed the project EIR as "legally defective" which "should not have been certified by the city of Ceres." The group, however, fought the center from the moment Walmart was named as the anchor and criticized the project on a full gamut of issues.

The center is proposed with an 185,668-square-foot Supercenter and 10 other retail shops totaling 114,162 square feet. Specifically, the project includes three other major tenants, four smaller shops, a stand-alone retail building and two to three new eating establishments. No tenants besides Walmart have been named but Applebee's has expressed interest.

Before the trial court can hear and decide the matter, both sides are still sorting out which documents should be included into the "administrative record," the set of documents on which a judge will decide if the city adequately addressed environmental concerns. The city and Walmart asserted that many emails should be left out as attorney-client or attorney work-product privilege but in June the California Court of Appeal's Fifth Appellate District in Fresno determined that emails were not necessarily protected.

"We had to give up a lot of documents," said Lyions. "We're being very cooperative in terms of the documents that are being produced because we want to move this thing along."

The trial court judge is now working on implementing the appellate court's decision, he said.

Meyers Nave has completed a further privileged log with "better definitions and information on those documents we want to continue as attorney-client or attorney work-product privilege. Plus we have gone ahead and consented and disclosed many other documents," according to Lyions.

Only 30 to 50 out of thousands of documents are still in dispute, he said. Both opposing law firms are required to meet in good faith in an attempt to work out differences of opinion over the documents, said Lyions. The trial court has set a Jan. 10 hearing date for the parties to come back and "tell the judge what documents remain in dispute, if any." The judge would then make a ruling to close up the process and seal the administrative record.

If the judge feels too many records remain in question, said Lyions, the court judge may refer the matter to a "discovery referee" to hear the arguments and make recommendations to the trial court judge.

The wrangling over emails for the administrative record could be resolved by early February but the city attorney said there are "no guarantees."

"With any degree of luck we're thinking that perhaps we have a ruling on the merits in this case sometime in late spring or right at the beginning of summer," said Lyions.
The Citizens group could continue dragging matters out if they receive an adverse ruling over the documents by pursuing another writ.

He believes if the city prevails, "Citizens" may file an appeal to the appellate court, which would drag out things for an additional year and half until a ruling is issued.

"The question is will we have a Super Walmart while I'm still working here? I don't know."

The draft Environmental Impact Report (EIR) issued for the Mitchell Ranch Shopping Center took 2 1/2 years to craft.

 

 

 

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