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City to defend exclusion of emails in Walmart suit
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The Fifth District Court of Appeal in Fresno issued an "Order to Show Cause" on Oct. 3 in the pending lawsuit over the embattled proposed Walmart Supercenter store.

A group calling themselves "Citizens for Ceres" is suing the city of Ceres and Walmart over last year's Planning Commission and City Council approval of the Mitchell Ranch Shopping Center, which will be anchored by a Walmart Supercenter. Walmart plans to build the shopping center at the northwest corner of Mitchell and Service roads and vacate its existing Walmart at Hatch and Mitchell. Citizens have filed suit in Stanislaus County Superior Court challenging the city's ability to approve the project, arguing that the scope of environmental review was lacking. Specifically, the lawsuit faults the shopping center's Environmental Impact Report (EIR) for not adequately addressing any potential urban decay resulting as a result of building the new center.

"Citizens" and Walmart/city have been at odds since January about the content of the 'administrative record" on which the case will be heard in the Modesto court. Citizens wants the approximately 700 documents - mostly emails between Walmart and the city - included in the record. Walmart and the city have refused, saying that the documents are either "not relevant" or protected from disclosure by "attorney-client," "attorney-work product," or "deliberative process" privileges.

The Oct. 3 court order instructs Walmart and the city to file a formal opposition - called a "return" - in the suit. The Order to Show Cause instructs Walmart and the city, within 30 days, to file papers with the Fresno court explaining "why the relief ... should not be granted." The court asks the parties to address specific issues, including whether the city and Walmart met their initial burden to establish privilege, whether communications between the city and Walmart prior to project approval are outside the scope of privilege, and whether the parties have additional authorities or arguments regarding the application of privileges in the context of CEQA litigation.

Citizens for Ceres will have 30 days to file a written reply once Walmart and the city file their return.

Sherri Jacobson of "Citizens for Ceres" declared the order a small victory.

"This order means the Stanislaus County Superior Court proceedings will stay frozen until the Court of Appeal in Fresno resolves Citizens for Ceres' concerns regarding the administrative record," Jacobson said. "About 90 percent of appellate court petitions like this are summarily denied, so it is great news the court has issued the Order to Show Cause and asked such specific questions. We will be given the chance to further discuss our reasoning for challenging the 700 undisclosed documents that Walmart and the city previously would not agree to show us.

"The ball is now in the city's and Walmart's court to explain why the trial court decision should not be reversed. We believe there are strong grounds for the appellate court to reverse the decision to exclude documents from the record based on the city's and Walmart's assertions of privilege. Our group is pleased the court has decided to accept this issue for review."

"It's hard to read into this," said City Attorney Mike Lyions of the court's order. "Obviously the court wants to look into the attorney client privilege. They've said they want to review that and see what standards are going to be applicable."

Lyions said he expects briefs to be filed in December and expects a ruling from the Appellatte Court after the first of the year.

Lyions said that the "Citizens" group "trying to drag this out. They want to get their hands on each and every email .... stretching this out for a very long time."

In July the Superior Court ruled that the documents in question challenged are privileged and therefore the court could not force the city or Walmart to produce these documents or include them in the record.

The city, working with Walmart, ultimately produced several thousands of pages of documents but still asserted privileges over approximately 3,000 documents. Jacobson, however, said the city produced a "woefully under-inclusive record" by excluding thousands of documents.

In citing how the group may try to drag out the lawsuit, Lyions said he expect an appeal if the Modesto court rules favorably for the city and Walmart.