Court: Ceres Wal-Mart documents are fair game

etracy@modbee.comJuly 10, 2013 

    Erin Tracy
    Title: Breaking news reporter
    Coverage areas: Breaking news, crime
    Bio: Erin Tracy started working for The Bee in September 2010. She has a journalism degree from Humboldt State University and previously worked at the Daily Democrat in Woodland and the Times-Standard in Eureka.
    Recent stories written by Erin
    On Twitter: @ModestoBeeCrime

— A group that sued the city of Ceres and Wal-Mart over a proposed supercenter at the city's south end experienced a small victory this week.

The 5th District Court of Appeal in Fresno ruled Monday that hundreds of documents that Wal-Mart and Ceres intended to withhold must be included as evidence in the administrative record.

Citizens for Ceres, a group of about 90 residents who oppose the development, filed suit in October 2011 after the City Council approved the 300,000-square-foot Mitchell Ranch Center.

Had the plan proceeded without litigation, scheduled construction would be well under way, said Ceres City Attorney Mike Lyions.

Citizens for Ceres claims that the council certified an Environmental Impact Report that failed to evaluate the project's potential to cause urban decay, physical deterioration and blight, and had an inadequate health-risk assessment, among other items.

The group ultimately hopes to persuade a judge to overturn city permission for the project, including the environmental impact report.

Before each side can even argue their case, the issue of the administrative record, which includes documents related to addressing the project's environmental effects, must be settled.

A Stanislaus Superior Court judge last year sided with the defendants, who wanted to exclude from the record 700 documents that mostly consisted of emails between the city and Wal-Mart.

Citizens for Ceres challenged the decision and the appellate court ruled in its favor Monday.

It ordered disclosed all correspondence between the city and Wal-Mart before the council's September 2011 decision.

The defendants argued that the majority of the documents should be excluded from the record because they were protected by attorney-client or attorney work-product privilege. The city and Wal-Mart stated that they would sometimes disclose privileged communications to each other and did so in pursuit of their common interests, according the court records.

The appellate court rejected this claim for some 650 documents because they were created before the council approved the project and therefore before the two parties had a common interest in the project.

For the rest of the documents, the court ruled the defendants need to provide more information to the superior court to support their privilege claims.

"We look forward to reviewing these public documents as a result of this victory," Citizens for Ceres spokesperson Sherri Jacobson said in a news release. "This ruling is important for those who believe government should be open and transparent rather than a series of secretive, back-room dealings."

The judge also ruled that Citizens for Ceres' court costs associated with the appeal be paid by the defendants.

Lyions said taxpayers will not spend any money on the lawsuit because the city has an agreement with Wal-Mart that it will be responsible for all legal fees.

He said he doesn't know exactly how much Wal-Mart has spent to date, but it is well into six figures.

The city and Wal-Mart must discuss what to do next during a closed session City Council meeting.

Lyions said the 3rd District Court of Appeal in Sacramento made a decision in 2009 regarding California Environmental Quality Act records that conflicts with the 5th District's decision.

To establish a rule of law on the matter, he said, Ceres and Wal-Mart might opt to request that the California Supreme Court weigh in before proceeding to trial.

Bee staff writer Erin Tracy can be reached at or (209) 578-2366. Follow her on Twitter @ModestoBeeCrime.

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