Save Lafayette Trees v. East Bay Regional Park Dist.

Filed 6/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SAVE LAFAYETTE TREES et al.,
Plaintiffs and Appellants, A156150
v. (Contra Costa County
Super. Ct. No.
EAST BAY REGIONAL PARK MSN1701909)
DISTRICT,
Defendant and Respondent;
PACIFIC GAS AND ELECTRIC
COMPANY,
Real Party in Interest and
Respondent.
Appellants Save Lafayette Trees, Michael Dawson and David Kosters
filed an amended petition/complaint seeking to vacate respondent East Bay
Regional Park District (EBRPD)’s approval of a memorandum of
understanding with respondent Pacific Gas and Electric Company (PG&E)
that allows for the removal of 245 trees from EBRPD land. The trial court
sustained respondents’ demurrers without leave to amend and dismissed the
lawsuit.
1
We affirm as the first cause of action seeking relief under the California
Environmental Quality Act (CEQA; Pub. Res. Code, §§ 2100 et seq.1 ) is time-
barred and the non-CEQA causes of actions cannot be amended to allege
claims for which relief can be granted.
FACTUAL AND PROCEDURAL BACKGROUND
On review of the order sustaining demurrers, we accept as true all
properly pleaded material factual allegations and all materials subject to
judicial notice. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.)2
1 All further undesignated statutory section references are to the Public
Resources Code and the CEQA Guidelines (Cal. Code Regs., tit. 14, §§ 15000
et seq.) are referred to as “Guidelines section . . . .” “Whether the Guidelines
are binding regulations is not an issue in this case, and we therefore need not
and do not decide that question. At a minimum, however, courts . . . afford
great weight to the Guidelines except when a provision is clearly
unauthorized or erroneous under CEQA.” (Laurel Heights Improvement
Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.)
2 Our factual and procedural background includes portions of the
certified public record of the March 17, 2017 proceedings before EBRPD’s
Board of Directors, of which the trial court took judicial notice.
On appeal, PG&E has filed a request for judicial notice asking us to
consider three additional documents directed at addressing certain factual
assertions made in appellants’ opening brief. We deny PG&E’s request for
judicial notice as the additional documents are not necessary to resolve this
appeal. (See Hughes Electronics Corp. v. Citibank Delaware (2004) 120
Cal.App.4th 251, 266, fn. 13 [“[a]s a general matter, judicial notice is not
taken of matters irrelevant to the dispositive points on appeal”].)
EBRPD has also filed a request for judicial notice on appeal asking us
to consider documents submitted for judicial notice in the trial court
(documents 1 through 11) and one document not presented in the trial court
(document 12). We grant EBRPD’s request for judicial notice of the 11
documents submitted in the trial court and which appear in the appellate
appendices, as well as document 12 (Legislative Counsel’s Digest of Senate
Bill No. 1298 – 1963 amendment to § 5541). (See Center for Biological
Diversity, Inc. v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, 1356, fn. 7
[court took judicial notice of fact of proceedings in administrative record, but
2
A. Background
On March 21, 2017, following a public hearing, EBRPD’s Board of
Directors committed to accept PG&E funding for “[e]nvironmental
[r]estoration and [m]aintenance at Briones Regional Park and Lafayette-
Moraga Regional Trail.” The staff report prepared in connection with the
approved funding explained: “PG&E’s Community Pipeline Safety Initiative
helps to ensure that PG&E pipelines are operating safely by looking at the
area above and around the natural gas transmission lines to be certain that
first responders and PG&E emergency response crews have critical access to
the pipelines in the event of an emergency or natural disaster. As part of this
initiative, PG&E conducted an in-depth review of trees located up to 14 feet
from the gas transmission pipeline on District property in Contra Costa
County. The results of the review were shared with the District and it was
determined that a total of 245 trees are located too close to the pipeline and
will be removed for safety reasons. [¶] . . . [¶] In consideration of the trees
that will be removed for safety reasons, PG&E will provide the District with a
payment of $1,000 for each tree that is being removed, for a total payment of
$245,000. PG&E will also provide one replacement tree for each of the 31
District-owned trees within the City of Lafayette, per the City’s ordinance.
PG&E will work with the District on appropriate community outreach in
advance of the planned safety work. In addition, PG&E will provide the
did not assume the truth of the statements or opinions]; Evans v. City of
Berkeley (2006) 38 Cal.4th 1, 7, fn. 2 [judicial notice proper for city council
resolution]; People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525,
1532 [legislative history and “Legislative Counsel’s Digest” are properly the
subject of judicial notice]; Evid. Code, § 452, subds. (b), (d) [judicial notice
permissible for “[r]egulations and legislative enactments issued by or under
the authority of . . . any public entity in the United States,” and for “records
of any court” of this state].)
3
District with $10,000 to be used on two years of maintenance related to
maintaining pipeline safety at Briones Regional Park.”
Following the public hearing on March 21, the Board issued Resolution
No. 2017-03-065, passed by motion, authorizing the acceptance of “funding
from PG&E’s Community Pipeline Safety Initiative for Environmental
Restoration and Maintenance at Briones Regional Park and Lafayette-
Moraga Regional Trail,” as follows:
EAST BAY REGIONAL PARK DISTRICT
RESOLUTION NO.: 2017-03-065
March 21, 2017
AUTHORIZATION TO ACCEPT FUNDING FROM PG&E’S COMMUNITY
PIPELINE SAFETY INITIATIVE FOR ENVIRONMENTAL RESTORATION
AND MAINTENANCE AT BRIONES REGIONAL PARK AND LAFAYETTE-
MORAGA REGIONAL TRAIL
“WHEREAS, PG&E’s Community Pipeline Safety Initiative helps to
ensure that PG&E[’s] pipeline is operating safely by looking at the area above
and around the natural gas transmission lines to be certain that first
responders and PG&E emergency response crews have critical access to the
pipelines in the event of an emergency or natural disaster; and
“WHEREAS, PG&E conducted an in-depth safety review of the pipeline
on EBRPD property in Contra Costa County and has identified 245 trees that
need to be removed for gas pipeline safety; and
“WHEREAS, the Community Pipeline Safety Initiative will provide
funding for tree replacement and maintenance; and
“WHEREAS, District procedures require Board Approval to accept
funding; and
“NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors
of the East Bay Regional Park District hereby:
“1. Approves the acceptance of funding from PG&E’s Community
Pipeline Safety Initiative; and
4
“2. Authorizes and directs the General Manager or Assistant
General Manager of Finance and Management Services/CFO, on
behalf of the District and in its name, to accept grant funds and
execute and deliver such documents including, but not limited to
applications, agreements, payment requests and amendments
and to do such acts as may be deemed or appropriate to
accomplish the intentions of this resolution; and
“BE IT FURTHER RESOLVED, that the Assistant General Manager of
Finance and Management Services/CFO or Budget Manager is hereby
authorized to amend the current year’s budget, without further Board action,
upon receipt of the executed contract from the Grants Manager. The budget
amendment will include an increase in budgeted revenue and a
corresponding increase in appropriation for the amount stipulated in the
contract, including any interest.”
Thereafter, on March 22 and 23, 2017, representatives of EBRPD and
PG&E signed a memorandum of understanding (MOU) “regarding
implementation of the Community Pipeline Safety Initiative on EBRPD
property in Contra Costa County.” The MOU stated, in pertinent part:
“Purpose
The purpose of this MOU is to establish an agreement between PG&E and
EBRPD to guide implementation of the Community Pipeline Safety
Initiative, as well as ongoing maintenance and monitoring of the area above
the natural gas transmission pipeline, on EBRPD property.
Proposed Work and Mitigation
• As part of the Community Pipeline Safety Initiative, PG&E
conducted an in-depth review of trees located up to 14 feet from
the gas transmission pipeline on EBRPD property. The results of
the review were shared with EBRPD and it was determined that
a total of 245 trees are located too close to the pipeline and will be
removed for safety reasons.
• PG&E will provide EBRPD with a payment of $1,000 for each
tree that is being removed for safety reasons, for a total payment
of $245,000.
5
• PG&E will provide one replacement tree for each of the 31
EBRPD-owned trees within the City of Lafayette, per the City’s
ordinance.
• PG&E will work with EBRPD on appropriate community
outreach in advance of the planned safety work.
• PG&E will provide $10,000 to EBRPD to use towards two years
of trail maintenance.
• PG&E will provide gas standby personnel to be onsite for all trail
maintenance work performed by EBRPD adjacent to the pipeline
that involves soil adjustment. . . .
Ongoing Monitoring and Maintenance
• PG&E will monitor any trees left in place near the pipeline as
part of PG&E’s ongoing pipeline inspections and patrols. This
will include annual foot patrol surveys as well as regular aerial
patrols.
• PG&E will notify and coordinate with the Park Supervisor for
access to park land for pipeline monitoring and maintenance
work in non-emergency situations.
• Should any tree develop into a safety concern or require removal
for a critical maintenance project in the future, PG&E will work
with EBRPD to address it at that time.”3
3 In its responsive brief filed February 22, 2021, PG&E informs us that,
following the entry of judgment, “PG&E removed 93% of the 245 trees that
were the subject of the MOU. Appellants made no effort to seek any type of
injunctive relief to preserve the status quo. Only 17 of the relevant trees – all
located along the Lafayette-Moraga Regional Trail on EBRPD-owned lands
within the City of Lafayette – have not been removed. Those trees are
currently subject to a preliminary injunction issued by the Bankruptcy Court
(N.D. Cal., S.F. Div.) at the request of the City, prohibiting their removal
pending the resolution of ongoing adversary proceedings between the City
and PG&E; [a]ppellants are not parties to those proceedings, which involve
PG&E’s proposed rejection and rescission of a Tree Removal Agreement
(“TRA”) between it and the City and the TRA’s proper interpretation. (Adv.
Proc. Nos. 20-03122, 20-03124.)”
We also note appellants filed an action challenging the City of
Lafayette’s March 27, 2017 approval of a separate “agreement with PG&E
6
On June 27, 2017, EBRPD filed a Notice of Exemption (“NOE”) under
CEQA in the county clerk’s office, announcing that the Board of Directors had
reviewed and determined the MOU was not an activity subject to CEQA. It
was further determined that “any activity related to the MOU would be
categorically exempt” under CEQA, citing to section 21080.23 (Work on
Existing Pipelines), and Guidelines sections 15301(b) (Existing Facilities),
15302 (Replacement or Reconstruction), and 15304 (Minor Alterations to
Land).
B. Trial Court Proceeding
On July 31, 2017, appellants and EBRPD entered into an agreement by
which they agreed to “toll all applicable statutes of limitations for 60 days”
(hereafter tolling agreement). PG&E did not consent to the tolling
agreement.
Within the 60-day tolling period, on September 29, appellants
commenced this action by filing a petition/complaint challenging EBRPD’s
approval of the MOU against EBRPD as respondent/defendant and PG&E as
real party in interest. Appellants also filed a proof of service that they had
given EBRPD the required mail notice (§ 21167.54) of their intent to file a
CEQA action on September 28. The petition/complaint was personally served
which authorized and imposed conditions on the removal of up to 272 trees
within its local natural gas pipeline rights-of way.” (Save Lafayette Trees v.
City of Lafayette (2019) 32 Cal.App.5th 148, 153.) This court found timely a
cause of action alleging violations of CEQA, but dismissed as time-barred the
non-CEQA causes of actions. (Id. at pp. 155-159, 160-162.)
4 Section 21167.5 provides: “Proof of prior service by mail upon the public
agency carrying out or approving the project of a written notice of the
commencement of any action or proceeding described in Section 21167
identifying the project shall be filed concurrently with the initial pleading in
such action or proceeding.”
7
on EBRPD on September 29, and personally served on PG&E’s
representative on October 2, within 20 days of service on EBRPD.
The first amended petition/complaint, filed March 28, 2018, is the
pleading under review on this appeal. The first cause of action alleges
EBRPD failed to undertake a CEQA analysis of the potential environmental
impact of the removal of trees before approving the MOU (CEQA cause of
action). The second cause of action alleges, in pertinent part, that EBRPD’s
approval of the MOU violated the procedural and substantive requirements
of the City of Lafayette Tree Protection Ordinance and EBRPD Ordinance 38.
The third cause of action alleges EBRPD violated appellants’ state
constitutional due process rights by approving the MOU without providing
public notice “reasonably calculated to apprise [appellants] and other directly
affected persons that hundreds of trees near their properties and along many
miles of highly popular public recreational trails would be removed, and their
property interests would be thereby affected”.5
The trial court sustained PG&E’s demurrer to the CEQA cause of
action without leave to amend based upon its findings that it was time-barred
under both the 35-day and 180-day limitations periods set forth in section
21167.6 The court sustained EBRPD’s demurrer to the second and third
5 The amended petition also included a fourth cause of action alleging
EBRPD had “proceeded in excess of its authority and abused its discretion” in
approving the MOU without compliance, in pertinent part, with CEQA, the
City of Lafayette’s Municipal Code, EBRPD Ordinance 38, and “the Due
Process section of the California Constitution.” The trial court sustained
EBRPD’s demurrer without leave to amend the fourth cause of action on the
basis that it was derivative of the other causes of action and “must fall as
they fall.” Appellants do not seek to reinstate this cause of action.
6 Section 21167 states, in relevant part: “An action or proceeding to
attack, review, set aside, void, or annul the following acts or decisions of a
8
causes of action without leave to amend based upon its findings that they did
not state causes of action for which relief could be granted and could not be
amended to cure any defects. Following entry of a judgment of dismissal,
appellants filed a motion to vacate the judgment that was denied. Their
timely appeal ensued.
DISCUSSION
A. Legal Framework
“In our de novo review of an order sustaining a demurrer, we assume
the truth of all facts properly pleaded in the complaint or reasonably inferred
from the pleading, but not mere contentions, deductions, or conclusions of
law. [Citation.] We then determine if those facts are sufficient, as a matter
of law, to state a cause of action under any legal theory [Citation.] [¶] In
making this determination, we also consider facts of which the trial court
properly took judicial notice. [Citation.] Indeed, a demurrer may be
sustained where judicially noticed facts render the pleading defective
public agency on the grounds of noncompliance with this division shall be
commenced as follows:
“(a) An action or proceeding alleging that a public agency . . . has
approved a project that may have a significant effect on the environment
without having determined whether the project may have a significant effect
on the environment shall be commenced within 180 days from the date of the
public decision to carry out or approve the project, or if the project is
undertaken without a formal decision by the public agency, within 180 days
from the date of the commencement of the project. [¶] . . . [¶]
“(d) An action or proceeding alleging that a public agency has
improperly determined that a project is not subject to this division . . . shall
be commenced within 35 days from the date of the filing by the public agency
. . . of the notice authorized by subdivision (b) of Section 21108 [Notice of
Exemption] . . . . If the notice has not been filed, the action or proceeding
shall be commenced within 180 days from the date of the public agency’s
decision to carry out or approve the project, or, if the project is undertaken
without formal decision by the public agency, within 180 days from the date
of commencement of the project.”
9
[citation], and allegations in the pleading may be disregarded if they are
contrary to facts judicially noticed.” (Scott v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 743, 751-752 (Scott).)
“In order to prevail on appeal from an order sustaining a demurrer, the
appellant must affirmatively demonstrate error. Specifically, the appellant
must show that the facts pleaded are sufficient to establish every element of
a cause of action and overcome all legal grounds on which the trial court
sustained the demurrer.” (Scott, supra, 214 Cal.App.4th at p. 752.)
B. Dismissal of CEQA Cause of Action as Time-Barred
We review de novo the order sustaining PG&E’s demurrer to the first
cause of action under CEQA. (Coalition for Clean Air v. City of Visalia (2012)
209 Cal.App.4th 408, 419-420.) As the CEQA cause of action was properly
dismissed as barred by the 180-day limitations period, we do not address the
parties’ additional arguments concerning the 35-day limitations period.
The trial court found the 180-day limitations period began to run on
March 21, 2017, expired on September 18, and, accordingly, the CEQA cause
of action was time-barred as the lawsuit was filed “eleven days” late on
September 29, 2017. (See Walton v. Guinn (1986) 187 Cal.App.3d 1354, 1360
[although “an amended complaint supersedes the original, the time of filing
of the original complaint is still the date of commencement of the action for
purposes of the statute of limitations”].) While EBRPD agreed to toll the
statute of limitations, the trial court properly found the CEQA cause of action
was subject to dismissal because PG&E, a necessary and indispensable party
to that cause of action, had not consented to the tolling agreement. (Salmon
Protection & Watershed Network v. County of Marin (2012) 205 Cal.App.4th
195, 204, fn. 6 (SPAWN); see Code Civ. Proc., § 389, subd. (b); County of
Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 36-40 [court upheld
10
dismissal of the action where petitioners failed to join necessary and
indispensable parties before the statute of limitations ran]; but cf.
Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 847-
862 [court found CEQA cause of action could proceed in the absence of a
necessary but not indispensable party].)
1. Tolling Agreement Was Not Binding on PG&E
The trial court did not abuse its discretion in finding PG&E a
“necessary party” within the meaning of Code of Civil Procedure section 389,
subdivision (a), and an “ ‘indispensable party,’ i.e., a party without whom” the
CEQA cause of action could not “ ‘in equity and good conscience’ proceed.”
(Id., subd. (b).) We do not agree with appellants that PG&E, not a signatory
to the tolling agreement, was nonetheless bound by the tolling agreement “to
the same extent” as EBRPD.
PG&E, as a named party, was entitled to either assert or waive the
statute of limitations defense to the amended petition/complaint. (See
Travelers Indemnity Co. v. Bell (1963) 213 Cal.App.2d 541, 547 [defense of
statute of limitations “is a ‘personal privilege’ to be asserted or waived at the
option of the one entitled to assert it”]; Friends of Shingle Springs
Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1474,
1494-1495 [where appellant filed a petition for writ of mandate challenging
certification and approval by county, through its board of supervisors, of a
mini-mart and gas station complex, court entertained real party in interest
project proponent’s demurrer on the basis that appellant did not have legal
capacity to file petition].)
In addition, PG&E was a necessary party to the tolling agreement as
supported by persuasive dictum in our decision in SPAWN, supra, 205
Cal.App.4th 195. In SPAWN, plaintiff Salmon Protection and Watershed
11
Network (SPAWN) sought to challenge the adequacy of an environmental
impact report (EIR) certified in connection with the adoption of a general
plan update for the San Geronimo Valley watershed. (Id. at 199.) SPAWN
and the county entered into a series of tolling agreements extending the 30-
day limitations period in section 21167 for the filing of a complaint
challenging the sufficiency of the EIR until September 14, 2010, during which
time the parties engaged in unsuccessful settlement negotiations. (Id. at p.
199.) In March 2011 the court allowed intervention by owners of properties
within the affected watershed. (Id. at pp. 199, 200.) The complaint in
intervention alleged that SPAWN’s petition was untimely because the
purported agreement tolling the statute of limitations was not permitted
under CEQA. (SPAWN, supra, at p. 199.) The trial court sustained
demurrers without leave to amend the complaint in intervention, holding
that CEQA did not prohibit tolling agreements. (SPAWN, supra, at p. 199.)
In upholding the trial court’s ruling that tolling agreements under CEQA
were permissible, we commented:
“Since a party whose project has been approved by a public agency is a
real party in interest in a challenge under CEQA to the validity of the
approval and must be named as such (§ 21167.6.5, subd. (a)), an agreement to
toll the limitation period, to be effective, must have the concurrence of the
recipient of the approval that is being challenged. The project proponent, the
public agency, and the party asserting noncompliance with CEQA are the
three parties that must agree to toll the limitation period. If the project
proponent wishes to proceed in accordance with the expedited statutory
schedule, presumably believing that approach is most likely to speedily
remove the challenge, the proponent need not agree to toll the limitation
period. However, if the approval recipient is prepared to extend the date for
12
filing a complaint in the belief that negotiations are more likely to yield a
prompt resolution of the dispute and permit the project to proceed, the
principal reason for urging haste with litigation disappears.” (SPAWN,
supra, 205 Cal.App.4th at p. 204, fns. omitted.)
We went on to hold, however, that in that case the intervenors were not
necessary parties to an effective tolling agreement because they were not real
parties in interest:
“The dispute in the present case differs from the prototypical CEQA
controversy concerning the approval of a site-specific project in that the
project for which an EIR was prepared here is an amendment to a countywide
plan, involving no individual project proponent. Although the intervenors’
properties may indirectly be affected by the update to the countywide plan,
the interveners are not real parties in interest in litigation challenging its
adoption. In granting their motion for intervention (Code Civ. Proc., § 387),
the trial court stated that intervenors are ‘necessary’ parties within the
meaning of Code of Civil Procedure section 389, subdivision (a) only because
of SPAWN’s request for an injunction prohibiting the approval of
development projects on their properties, and they are not ‘indispensable’
parties within the meaning of Code of Civil Procedure section 389,
subdivision (b). . . . Section 21167.6.5 subdivision (d) provides explicitly that
the failure to name persons other than those who are real parties in interest
is not grounds for dismissing the proceedings. Not being real parties in
interest, their approval is unnecessary to the entry of an agreement to toll
the running of the limitations period.” (SPAWN, supra, at pp. 204-205, fn.
omitted.)
The SPAWN dictum espouses well-settled law regarding “agreements
to extend or waive statute of limitations. Although parties certainly may
13
contract to extend the limitation periods (e.g. Hambrecht & Quist Venture
Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532,
1547 . . .), it is well established that such an agreement has no effect on other
potential parties not in privity.” (FNB Mortgage Corp. v. Pacific General
Group (1999) 76 Cal.App.4th 1116, 1135 (italics added), citing Code Civ. Proc,
§ 360.5 [a waiver of the statute of limitations is to be “signed by the person
obligated”].)
Here, PG&E is clearly a real party in interest. Appellants would have
us find that is of no import because, according to appellants, the real party in
interest is not a necessary signatory to an effective tolling agreement as the
deadlines for filing CEQA lawsuits are governed by an agency’s actions – and
therefore the agency has the sole power and is the only party necessary to an
agreement to toll the statute of limitations. (§§ 21167.6, 21167.6.5.7) In
7 Section 21167.6 provides, in pertinent part:
“Notwithstanding any other law, in all actions or proceedings brought
pursuant to Section 21167, . . . all of the following apply:
“(a) At the time that the action or proceeding is filed, the plaintiff or
petitioner shall file a request that the respondent public agency prepare the
record of proceedings relating to the subject of the action or proceeding. The
request, together with the complaint or petition, shall be served personally
upon the public agency not later than 10 business days from the date that
action or proceeding was filed.”
Section 21167.6.5 provides, in pertinent part:
“(a) The petitioner or plaintiff shall name, as a real party in interest,
the person or persons identified by the public agency in its notice filed
pursuant to subdivision (a) or (b) of Section 21108 [Notice of CEQA
Determination or Notice of CEQA Exemption], . . . or, if no notice is filed, the
person or persons in subdivision (b) or (c) of Section 21065, as reflected in the
agency’s record of proceedings for the project that is the subject of an action
or proceeding brought pursuant to Section 21167, . . ., and shall serve the
petition or complaint on that real person in interest, by personal service,
mail, facsimile, or any other method permitted by law, not later than 20
business days following the service of the petition or complaint on the public
14
other words, it is appellants’ contention that where an agreement between
the petitioner and the agency tolls all applicable limitation periods for filing –
and subsequent service – of a petition or complaint, all obligations to, or
interests and rights of any real party in interest automatically run from that
extended tolled deadline under section 21167.6.5. Appellants support their
argument by asking us to consider our recognition in Save Lafayette Trees v.
City of Lafayette, supra, 32 Cal.App.5th 148 at page 162, that “CEQA’s
deadlines for service of CEQA petitions govern[ ] ‘[n]otwithstanding any other
law.’ ”
Appellants’ focus on CEQA’s service requirements is of no moment.
The “ ‘propriety’ ” of timely compliance with the service requirements on a
real party in interest “would matter if, and only if, valid service of” the
pleading “constituted commencement of an action against” the real party in
interest “for statute of limitations purposes. [¶] It did not.” (Fireman’s Fund
Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1144;
italics added.) The “notwithstanding any other law” in section 21167.6
governing “service” requirements “can only establish that statute’s
precedence over other statutes arguably covering the same subject matter;”
for example, “[w]hile section 21167.6 sets forth rules for the time in which
service must be made, it does not purport to govern the manner;” and
consequently, we would “adhere to the standard rules contained in the Code
of Civil Procedure which cover the manner of service.” (Board of Supervisors
v. Superior Court (1994) 23 Cal.App.4th 830, 840, fn. 7.)
Here, we are concerned with the commencement of an action for the
purposes of the statute of limitations. Because sections 21167.6 and
agency. [¶] . . . [¶] (d) Failure to name potential persons, other than those real
parties in interest described in subdivision (a), is not grounds for dismissal
pursuant to Section 389 of the Code of Civil Procedure.”
15
21167.6.5 do not provide any specific rules for the “filing” of the petition or
complaint that commences a CEQA action, we adhere to the standard rules in
the Code of Civil Procedure that govern the commencement of a civil action
for the purpose of stopping the running of the statute of limitations. (Code
Civ. Proc., §§ 350, 411.10.) Hence, the filing of the appropriate pleading in
court is the only act that “stops the running of the statute” of limitations
against a party and the trial court properly recognized that any service
requirements were inapplicable to the question at hand. (Pimental v. City of
San Francisco (1863) 21 Cal. 351, 367; see Garcia v. Lacey (2014) 231
Cal.App.4th 402, 411 [“civil actions (such as lawsuits for damages or
equitable relief) and special proceedings (such as writ petitions) are
commenced when the plaintiff’s complaint or petition is filed with the
court”].)
The trial court also properly found that the tolling agreement was not
effective as it was not agreed to by real party in interest PG&E, a necessary
and indispensable party to the CEQA cause of action. The “primary purpose”
of the limitation period in section 21167 “is to protect project proponents from
extended delay, uncertainty and potential disruption of a project caused by a
belated challenge to the validity of the project’s authorization.” (SPAWN,
supra, 205 Cal.App.4th at p. 205.) CEQA does not statutorily authorize
tolling agreements so while the parties can agree to toll any applicable
limitations period, that is not by statutory right, but by private agreement of
the parties and hence pursuant to the terms of any such agreement.
Appellants’ position that PG&E is not a necessary party to any tolling
agreement would in practice defeat the primary purpose of the limitation
period (protection from delay and uncertainty) because no settlement
agreement could be reached without all necessary parties, including PG&E.
16
2. CEQA Claim Barred by 180-Day Limitations Period
Appellants contend that, even in the absence of the tolling agreement,
the CEQA cause of action was timely filed as the 180-day limitations period
did not start on March 21, 2017 (as found by the trial court) because neither
the Board’s on-line agenda notice for the March 21, 2017 public hearing or
“the accompanying description of the Board Resolution in question mentioned
or even implied that any trees would be removed” as part of PG&E’s funding
proposal. Appellants further alleged in their amended petition/complaint
that EBRPD purportedly “failed to provide any written notice, by mail,
posting, or publication, reasonably calculated to apprise the public . . . of
PG&E’s proposed removal of trees.” Thus, according to appellants, the 180-
day limitations period did not commence until they had “constructive notice
of the project,” which was many weeks after the approval of the MOU. We
find these arguments unavailing.
Our Supreme Court has held that when an agency approves a project
without filing either a notice of determination (NOD) as to whether a project
will have a significant environment impact or a notice of exemption (NOE) as
to whether a project is statutorily exempt from CEQA, section 21167
nonetheless “permits a legal challenge to be brought up to 180 days after the
agency’s decision or commencement of the project,” which “is deemed
constructive notice for potential CEQA claims.” (See Committee for Green
Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 47
(Committee for Green Foothills), italics added; Stockton Citizens for Sensible
Planning v. City of Stockton (2010) 48 Cal.4th 481, 500 (Stockton Citizens for
Sensible Planning) [accord].)
Section 21167 does not establish any special notice requirements for
the commencement of the 180-day limitations period from project approval.
17
“[A]ll that is required is that the public agency makes a formal decision to
‘carry out or approve the project.’ ” (Citizens for a Green San Mateo v. San
Mateo County Community College Dist. (2014) 226 Cal.App.4th 1572, 1597.)8
“The Guidelines define ‘approval’ as ‘the decision by the public agency which
commits the agency to a definite course of action in regard to the project
intended to be carried out by any person.’ (Guidelines, §15352, subd. (a).)
The Guidelines continue: ‘The exact date of approval of any project is a
matter determined by each public agency according to its rules, regulations,
and ordinances. Legislative action in regard to a project often constitutes
approval.’ (Ibid.)” (County of Amador v. El Dorado County Water Agency
(1999) 76 Cal.App.4th 931, 963 (County of Amador).)
The facts in the judicially noticed documents in the record9 show that,
following the public hearing on March 21, 2017, EBRPD was committed to a
definite course of action by issuing a resolution authorizing (and directing the
execution of an agreement) accepting funding from PG&E for the cost of the
tree replacement (following necessary removal of 245 trees) and maintenance
8 Consequently, we find inapposite appellants’ reliance on Defend Our
Waterfront v. State Lands Com. (2015) 240 Cal.App.4th 570, which addresses
the issue of adequacy of public notice for the purposes of determining
whether a plaintiff has exhausted his administrative remedies before filing a
CEQA lawsuit (id. at p. 584).
9 “Where, as here, judicial notice is requested of a legally operative
document, . . . the court may take notice not only of the fact of the document
and its recording or publication, but also facts that clearly derive from its
legal effect. [Citation.] Moreover, whether the fact derives from the legal
effect of a document or from a statement within the document, the fact may
be judicially noticed where, as here, the fact is not reasonably subject to
dispute.” (Scott, supra, 214 Cal.App.4th at p. 754; italics in original.) To the
extent appellants’ allegations in the amended petition/complaint are directed
at lack of sufficiency of the approval notice we disregard them as being
contrary to the judicially noticed facts. (Intengan v. BAC Home Loans
Servicing LP (2013) 214 Cal.App.4th 1047, 1055.)
18
at Briones Regional Park and Lafayette-Moraga Regional Trail. The MOU,
executed by EBRPD and PG&E on March 22 and 23, 2017, was consistent
with the resolution and the project as outlined in the staff report submitted
to the Board. (See Cumming v. City of San Bernardino Redevelopment
Agency (2002) 101 Cal.App.4th 1229, 1235 [“public record gave sufficient
notice to start [CEQA 180-day] statute of limitations running” where the
“scope of the . . . project was disclosed in the public documents made available
for review before the sale was approved”]; but cf. County of Amador, supra, 72
Cal.App.4th at pp. 964-965 [the 180-days limitations period did not start to
run from project approval because the agency’s resolution, which only
authorized negotiations, was not an approval of the project].)
Accordingly, the public was given the necessary “constructive notice”
that the 180 days started to run from March 21, 2017, the “statutory
triggering date” of project approval. (Committee for Green Foothills, supra,
48 Cal.4th at p. 47; see County of Del Norte v. City of Crescent City (1999) 71
Cal.App.4th 965, 980 [court found date city council held public hearing and
enacted policy in the form of a resolution, passed by motion, to be date 180-
day limitations period commenced]; City of Chula Vista v. County of San
Diego (1994) 23 Cal.App.4th 1713, 1720 [even if the “wording of the NOE . . .
was insufficient to start the running of the 35-day limitations period, . . . the
broader 180-day limitations period applies . . . because the facts alleged in the
City’s petition, as read in conjunction with judicially noticeable facts, clearly
show that the ‘project’ (i.e. the agreement) was approved by the County on
November 28, 1989 and the actual agreement executed on January 29, 1992
was not substantially different from the original ‘project,’ ” and “[a]ccordingly,
the 180-day limitations period began to run on November 28, 1989 and
expired 180 days later, barring the City’s petition which was not filed until
19
July 22, 1992”].) Our Supreme Court has made clear that any “flaws in a
project approval process” do not delay the limitations period normally
applicable when, as in the instant case, EBRPD “gave notice of the very
approval the [appellants] seek to challenge.” (Stockton Citizens for Sensible
Planning, supra, at 48 Cal.4th at p. 511; italics in original.)
Nor are we persuaded by appellants’ arguments that the action should
be deemed timely filed based on the decisions in Concerned Citizens of Costa
Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929 (Concerned
Citizens of Costa Mesa) and Ventura Foothill Neighbors v. County of Ventura
(2014) 232 Cal.App.4th 429 (Ventura Foothill Neighbors). Our recitation of
the facts in those cases demonstrate they are inapposite. In Concerned
Citizens of Costa Mesa, the plaintiffs’ CEQA challenge for failure to file a
supplemental environment impact report (“EIR”) was deemed timely because
the statutory triggering date for the plaintiffs’ action (challenging the project
actually constructed – which included an amphitheater – as opposed to what
was described in the EIR) was “within 180 days of the time the plaintiff[s]
knew or reasonably should have known that the project under way differs
substantially from the one described in the EIR.” (42 Cal.3d at pp. 939-940;
italics added.) Ventura Foothill Neighbors also concerned a situation where
the agency had approved an EIR for a building to be 75 feet tall, but the
project proponent later increased the height to 90 feet and the agency gave no
notice that the changed project was subject to CEQA or filed an addendum to
the EIR, and thus there was no actual notice of the new height until an
inquiry was made at the construction site. (232 Cal.App.4th at pp. 432-433.)
The plaintiff’s challenge to the height change was timely, even though section
21167, subdivision (e) required actions to be filed within 30 days of the
decision announced in a filed notice of determination, because the notice of
20
determination had omitted the change in the building’s height. (Id. at p.
436.) Thus, in both cases the actions were determined to be timely filed
because a “statutory triggering date never actually transpired” to start the
running of the statute of limitations. (Communities for a Better Environment
v. Bay Area Air Quality Management Dist. (2016) 1 Cal.App.5th 715, 725.)
Here, we are not concerned with an omission similar to what occurred in
Concerned Citizens of Costa Mesa and Ventura Foothill Neighbors. The
record shows “a statutory triggering date” – March 20, 2017 – EBRPD’s
formal decision approving Resolution No. 2017-03-065, authorizing
acceptance of PG&E’s funding for tree replacement (following the necessary
removal of 245 trees) and maintenance at Briones Regional Park and
Lafayette-Moraga Regional Trail.
In sum, we conclude the first cause of action under CEQA was properly
dismissed, as a matter of law, because the lawsuit was not filed within 180
days of EBRPD’s public “decision to carry out or approve the project” under
section 21167. Our determination renders moot and accordingly we do not
address appellants’ additional argument that the agency’s NOE failed to
provide sufficient notice to trigger CEQA’s shorter 35-day limitations period
under section 21167, or their argument that the CEQA cause of action is not
governed by the shorter 90-day limitations period in Government Code
section 65009, which governs land use planning and zoning actions of a city, a
county, or a city and county (see Save Lafayette Trees v. City of Lafayette,
supra, 32 Cal.App.5th at pp. 160-162).
C. Dismissal of Second Cause of Action
1. City of Lafayette Tree Protection Ordinance
The trial court found the second cause of action’s allegations that
EBRPD’s approval of the MOU violated the City of Lafayette Tree Protection
21
Ordinance could not be sustained because EBRPD’s action was authorized by
sections 5541 and 5541.110, a state law, which preempted the City of
10 Section 5541 reads:
“A district may plan, adopt, lay out, plant, develop, and otherwise
improve, extend, control, operate, and maintain a system of public parks,
playgrounds, golf courses, beaches, trails, natural areas, ecological and open
space preserves, parkways, scenic drives, boulevards, and other facilities for
public recreation, for the use and enjoyment of all the inhabitants of the
district, and it may select, designate, and acquire land, or rights in land,
within or without the district, to be used and appropriated for such purposes.
It may cause such trails, parkways, scenic drives, and boulevards to be
opened, altered, widened, extended, graded or regraded, paved or repaved,
planted or replanted, repaired, and otherwise improved, . . ., and may do all
other things necessary or convenient to carry out the purposes of this article.
“The board of directors of a district shall not interfere with control of
any of the foregoing or other public property, that are existing, owned or
controlled by a municipality or county in the district, except with the consent
of the governing body of the municipality, or of the county if the same is in
unincorporated territory, and upon such terms as may be mutually agreed
upon between the board of directors of the district and the governing body.”
Section 5541.1 reads: “The East Bay Regional Park District may plan,
adopt, lay out, plant, develop, and otherwise improve, extend, control,
operate, and maintain vehicular recreational areas and trails for the use and
enjoyment of all the inhabitants of the district, and it may select, designate,
and acquire land, or rights in land, within or without the district, to be used
and appropriated for such purposes. The East Bay Regional Park District
may cause such vehicular recreational areas and trails to be opened, altered,
widened, extended, graded or regraded, paved or unpaved, planted or
replanted, repaired, and otherwise improved.
“The Board of Directors of the East Park Regional Park District shall
not interfere with the control of any vehicular recreational area or trail that
is existing, owned, or controlled by a municipality or county in the district,
except with the consent of the governing body of the municipality, or of the
county if the same is in unincorporated territory, and upon such terms as
may be mutually agreed upon between the board of directors and the
governing body.”
22
Lafayette Tree Protection Ordinance11, a local ordinance in conflict with a
state law. In challenging the trial court’s ruling, appellants contend the City
of Lafayette Tree Protection Ordinance is not preempted by state law and,
therefore, EBRPD is required to comply with it in regard to trees located on
district land situated within the geographical boundaries of the City of
Lafayette despite EBRPD’s broad authority to maintain its land under
section 554112. We disagree.
11 City of Lafayette Tree Protection Ordinance, adopted in 2003 and
amended in 2010 and 2014 (Lafayette Mun. Code, chs. 6-17), provides, in
pertinent part:
“6-1701 Purpose and Findings
B. Findings. The City Council finds that:
1. The policies of the City are to protect existing woodlands and
their associated vegetation, protect native trees, preserve
riparian habitat, encourage the planting of native species, and
avoid the cutting of mature trees.
2. In order to implement these policies and to promote the public
health, safety and welfare, it is necessary to protect existing trees
and require the replacement of trees that have been destroyed or
removed.
3. Protected trees are valuable assets to the City and the
community, and the public shall be compensated when a
protected tree is destroyed or removed in a manner that is not in
compliance with this chapter.”
“6-1703 Destruction of a protected tree
It is a violation of this chapter for any person to remove or destroy a
protected tree without a category I or category II permit under section 6-1706
or 6-1707, or without the approval of an exception under section 6-1705.”
12 While our discussion addresses the preemptive effect of section 5541, it
applies equally to the preemptive effect of section 5541.1. For convenience,
however, our discussion makes reference only to section 5541.
23
In Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th
1139 at pages 1149-1150, our Supreme Court set forth the principles of state
law preemption as follows:
“The party claiming that general state law preempts a local ordinance
has the burden of demonstrating preemption. [Citation.] We have been
particularly ‘reluctant to infer legislative intent to preempt a field covered by
municipal regulation when there is a significant local interest to be served
that may differ from one locality to another.’ [Citation.] . . . [¶] Thus, when
local government regulates in an area over which it traditionally has
exercised control, such as the location of particular land uses, California
courts will presume, absent a clear indication of preemptive intent from the
Legislature, that such regulation is not preempted by state statute.
[Citation.] . . . [¶] Moreover, the ‘general principles governing state statutory
presumption of local land use regulation are well settled. . . . “A county or city
may make and enforce within its limits all local, police, sanitary, and other
ordinances and regulations not in conflict with general laws.’’ (Cal. Const.,
art. XI, § 7; italics added [in original].) “ ‘Local legislation in conflict with
general law is void. Conflicts exist if the ordinance duplicates [citations],
contradicts [citation], or enters an area fully occupied by general law, either
expressly or by legislative implication [citations].’ ” ’ [Citation.] [¶] Local
legislation is ‘duplicative’ of general law when it is coextensive therewith and
‘contradictory’ to general law when it is inimical thereto. Local legislation
enters an area ‘fully occupied’ by general law when the Legislature has
expressly manifested its intent to fully occupy the area or when it has
impliedly done so in light of recognized indicia of intent. [Citation.]” With
these principles in mind, we now address the parties’ arguments.
24
“The Legislature first authorized the creation of regional park districts
in 1933 ‘for the purpose of acquiring, improving, and maintaining parks,
playgrounds, beaches, parkways, scenic drives, boulevards and other facilities
for public recreation.’ (Stats. 1933, ch. 1043, p. 2664.) This act was later
codified in 1939 as section 5500 et seq. (Stat. 1939, ch. 94, p. 1217 et seq.) and
then expanded in 1975 to include regional open space districts as well as
combination use districts, called regional park and open space districts
(§ 5500, as amended Stats. 1975, ch. 813, § 2, p. 1846). Such districts now . . .
stretch from Los Angeles County in the south to Napa and Sonoma Counties
in the north. [13] The oldest and most developed district, and the one
envisioned by the authors of the original legislation in 1933, is East Bay
Regional Park District.” (Ste. Marie v. Riverside County Regional Park &
Open-Space Dist. (2009) 46 Cal.4th 282, 286 (Ste. Marie).) As of the filing of
the March 29, 2018, amended petition/complaint, EBRPD encompassed “65
regional parks, recreation and wilderness areas, shorelines, preserves and
land bank areas totaling approximately 121,000 acres in Contra Costa and
Alameda Counties.”
The authority of a regional park district to manage the resources on its
titled lands – is one that is faced by each Amici, which like EBRPD, “own and
steward lands that cross municipal jurisdictions.” “The enabling legislature
grants extremely broad and all-inclusive powers over the lands that the
[d]istrict has acquire[d] and own[ed]” and for which it holds title, and “is
essential to each [d]istrict’s ability to fulfill its mission and to manage its
13 We granted leave and have received a joint Amici Brief in support of
EBRPD from the Midpeninsula Regional Open Space District, Santa Clara
Valley Open Space Authority, Marin County Open Space District, Monterey
Peninsula Regional Park District, and the Napa County Regional Park and
Open Space District. Appellants have filed a responsive brief in opposition to
the Amici Brief.
25
resources.” Section 5541 authorizes EBRPD to “plan, adopt, lay out, plant,
develop, and otherwise improve, extend, control, operate, and maintain a
system of public parks, playgrounds, golf courses, beaches, trails, natural
areas, ecological and open space preserves, parkways, scenic drives,
boulevards, and other facilities for public recreation” (hereafter collectively
“recreational recourses”), and “may do all other things necessary or
convenient to carry out the purposes of this article.” (§ 5541.) This broad
grant of authority over recreational resources is subject to one limitation
(hereafter section 5541 exception): “The board of directors of a district shall
not interfere with control of any of the foregoing or other public property, that
are existing, owned or controlled by a municipality or county in the district,
except with the consent of the governing body of the municipality, or of the
county if the same is in unincorporated territory . . . .” (§ 5541.)
Appellants contend section 5541’s exception prohibits EBRPD’s
interference with all recreational and other public property that is either
“owned or controlled” by the City of Lafayette, and therefore EBRPD must
comply with the city’s Tree Protection Ordinance because the city “has
elected to control the removal of healthy, mature trees from the District’s
lands within the City by requiring permits under its Tree Protection
Ordinance.” We conclude that section 5541’s exception is “most logically and
plainly read to restrain” a park district from “taking control of locally (city or
county) owned, built, or operated parks and recreational facilities” and other
public property, located within the geographical boundaries of regional park
district, “such as a city’s public golf course.” (Italics added.)
Our interpretation of section 5541’s exception is supported by the
available legislative history. Before 1963, the second paragraph of section
5541 prohibited park district interference with “ ‘existing public park,
26
playground, beach, parkway, scenic drive, boulevard, or other public property
owned or controlled by a municipality or county in the district,’ ” and
repeated the recreational resources from the first paragraph. “[T]he 1963
amendments added ‘golf courses’ to the list of recreational resources that a
park district could control in the first paragraph,” and the second paragraph’s
repetitive list of recreational resources was replaced with: “ ‘of the foregoing
or other public property, that are existing.’ ” Therefore, “ ‘existing’ ”
references the list of recreational resources listed in the first paragraph. The
Legislature Counsel’s Digest for this 1963 amendment summarizes the
relevant amendment as follows: “Provides that a regional park district may
exercise powers for recreation purposes among which are golf courses but not
limited to such enumerated purposes but the district is not to interfere with
control of existing recreational facilities owned or controlled by municipality
or county except with the consent of the governing body.’ ” (Italics added.)
Thus, the reason for the section 5541 exception appears to be an
acknowledgment that as between EBRPD and the cities and counties,
EPRPD “has no right to control” recreational resources that are owned or
controlled by those local entities. (Vasilenko v. Grace Family Church (2017) 3
Cal.5th 1077, 1084.)
Appellants do not allege that EBRPD’s approval of the MOU was an
attempt to regulate recreational resources that are controlled by the City of
Lafayette, as mentioned in section 5541’s exception. Rather, they argue that
the City of Lafayette may interfere with EBRPD’s control of its own land, a
proposition which is not supported by section 5541’s exception. As Amici
concisely explained, if section 5541’s exception were read as appellants
suggest, “it would defeat any purposes behind having separate Parks and
Open Space Districts formed under the enabling legislature at all, as, [the
27
Park Districts] would have no authority to ‘plan, adopt, lay out, plant,
develop, and otherwise, improve, extend, control, operate, and maintain a
system of public parks, playgrounds, golf courses, beaches, trails, natural
areas, ecological and open space preserves’ as prescribed by the first sentence
in . . . [section 5541]. That interpretation would be nonsensical and a self-
cancelling reading of the statute” that should be rejected. And, as argued by
EBRPD, to accept appellants’ interpretation of section 5541’s exception would
mean that “cities and counties must consent to all management decisions
affecting all park district [r]ecreational [r]esources since all will necessarily
be [geographically located] within either a city or county. . . . This reading
would undermine the broad authority given to park districts in [s]ections
5500 et. seq., . . . impermissibly allowing the exception to become the rule.”
(See Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2009)
173 Cal.App.4th 13, 26 [rejecting statutory interpretation where “the
exception would swallow the rule”]; Teachers’ Retirement Bd. v. Genest (2007)
154 Cal.App.4th 1012, 1028 [“[w]e avoid an interpretation that renders any
portion of the statute superfluous, unnecessary, or a nullity; this is so
because we presume that the Legislature does not engage in idle acts”].)
The Legislature, when creating the regional park districts, specifically
provided in section 5595: “ ‘This article14 shall be liberally construed to
promote its objects and to carry out its intent and purposes.’ ” And, as noted,
“the intent of the legislative scheme was to create park districts ‘for the
purpose of acquiring, improving, and maintaining parks, playgrounds,
beaches, parkways, scenic drives, boulevards and other facilities for public
14 “The term ‘article’ in section 5595 refers to article 3 (‘Regional Park,
Park and Open Space, and Open-Space Districts’) of chapter 3 (‘Districts’) of
division 5 (‘Parks and Monuments’) of the Public Resources Code.” (Ste.
Marie, supra, 46 Cal.4th at p. 294, fn. 8.)
28
recreation.’ (Stats. 1933, ch. 1043, p. 2664.)” (Ste. Marie, supra, 46 Cal.4th
at p. 294.) To that end the Legislature has also provided in section 5593 that
“[a]ll matters and things necessary for the proper administration of the
affairs of districts which are not provided for in this article shall be provided
for by the board of directors of the district.” As noted by Amici, if the
Legislature intended to “subordinate” a regional park district’s authority to
implement land management decisions on its own land to “local regulatory
authority,” it knew how to do so. For example, when the Legislature created
certain special districts governed by the Recreation and Park District Law
(§ 5780 et seq.), specific statutory language was provided to mandate that
“the district’s purpose and function is subordinated to city and county
planning ordinances.”
We also find compelling Amici’s contention that to allow a local
jurisdiction to “dictate” how a regional park district is to manage its own
lands and resources would render unworkable any district-wide plans. The
Legislature expressly provides that a regional park district may encompass
more than one city, one county, or one city and county. Section 5502 reads:
“(a) Three or more cities, together with any parcel or parcels of city or county
territory, whether in the same or different counties, may organize and
incorporate. All the territory in the proposed district shall be contiguous. (b)
Notwithstanding subdivision (a), one or more cities, together with any parcel
or parcels of city or county territory, whether in the same or different
counties, the territory of all of which when combined has a population of at
least 50,000, may organize and incorporate. All the territory in the proposed
district shall be contiguous.” By providing for regional park districts
encompassing more than one local jurisdiction, “[i]t is apparent that the
Legislature did not intend that a county enact legislation controlling
29
activities of a district which extended into another county. If each county, in
which there is a portion of the district, should enact legislation purporting to
control the activities of the district, it is obvious there would be confusion as
to rules and regulations. Likewise, if a city or cities within a district were to
enact legislation purporting to control the affairs of the district there would
be confusion.” (Baldwin Park County Water Dist. v. County of Los Angeles
(1962) 208 Cal.App.2d 87, 96.)
Thus, we concur with Amici that to accept appellants’ argument that
EBRPD is subject to the City of Lafayette Tree Protection Ordinance would
create a “cross-county or cross-jurisdictional ‘checkerboard’ problem,” with
serious practical and policy considerations. As Amici explain, “[t]o date, the
lack of precedent on the issue of preemption has led the Districts to rely on
long-standing, carefully nurtured relationships between the staff of the
respective District and the staff of the municipal jurisdictions that may be
feeling pressure to assert authority. The city staff may not be sure if they
have jurisdiction at all, and will often work cooperatively with the District
Staff to come to an agreement about the substance, with or without granting
a permit. [¶] With hard work and good faith, in the context of long-term staff-
to-staff relationships, this often works. Where there is, however, city or
county staff turnover, local disagreement, or a strong opinion locally about
specific resource management decisions, there can be significant delay, cost
and uncertainty added to the process of resource management by individual
Districts navigating this minefield.”
In reply, appellants contend their challenge to the removal of the trees
on EBRPD’s land “has nothing to do with the District’s park management
plans” and that we must read their amended pleading as a challenge to the
“purely self-interested action by a for-profit corporation” that is acting for its
30
own purpose to “destroy the District’s publicly owned mature and iconic trees
greatly enjoyed by the District’s recreational users.” However, on a demurrer
we do not consider appellants’ contentions as to their interpretation of the
MOU but rather we look at the actual terms of the MOU. The enabling
legislation for regional park districts (see, e.g., §§ 5541, 5549, 5594) grants
EBRPD broad authority “to manage its own property” including entering into
contracts for maintenance services on district land, “whether that decision is
embodied in a contract with a private party, in an ordinance, or in some
combination of the two.” (Great Western Shows, Inc. v. County of Los Angeles
(2002) 27 Cal.4th 853, 871.) While the MOU includes a provision that PG&E
will provide a replacement tree for each of 31 EBRPD-owned trees within the
City of Lafayette, per the City’s ordinance, it is not a concession by EBRPD
that its Board of Directors was statutorily mandated to comply with the City
of Lafayette Tree Protection Ordinance before approving the MOU with
PG&E. Because section 5541’s exception does not grant the City of Lafayette
the “authority” to control the land owned by the regional park district by
prohibiting tree removal on district-owned lands absent a permit, we see no
legal significance to appellants’ assertion that the city “has elected to control
the removal of healthy, mature trees” on the district’s land within the city’s
geographical boundaries “by requiring permits under its Tree Protection
Ordinance.”15
15 In light of our determination that section 5541 preempts the City of
Lafayette Tree Protection Ordinance, we do not address appellants’
alternative argument, raised for the first time on appeal, that in the absence
of preemption EBRPD must comply with the City of Lafayette Tree
Protection Ordinance under Government Code section 53091, which requires
local agencies to comply with city zoning ordinances in which the territory of
the local agency is situated.
31
In sum, we conclude the City of Lafayette Tree Protection Ordinance
does not apply to EBRPD’s approval of the MOU and the demurrer was
properly sustained without leave to amend. “[W]here the nature of the
plaintiff’s claim is clear, and under substantive law no liability exists, a court
should deny leave to amend because no amendment could change the result.”
(City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68
Cal.App.4th 445, 459 (City of Atascadero).)
2. EBRPD Ordinance 38
The trial court also found the second cause of action’s allegations that
EBRPD’s approval of the MOU violated certain provisions of EBRPD
Ordinance 38 (hereafter Ordinance 38) 16 were not sustainable because, as a
16 EBRPD’s Board of Directors issued Ordinance 38 as part of EBRPD’s “
‘Master Plan’ “ governing management of district land. The ordinance sets
forth EBRPD’s “land use rules and regulations,” including the following
pertinent provisions:
“CHAPTER 1 – DEFINITIONS:
“SECTION 100. GENERAL. Unless the context otherwise requires,
the definition hereinafter set forth shall govern the construction of this
Ordinance.
“SECTION 101. DISTRICT DEFINED. ‘District’ means the East
Bay Regional Park District, and includes all lands and waters owned,
controlled, or managed by the East Bay Regional Park District, which
hereinafter be referred to as ‘parklands.’
“SECTION 102. PERSON DEFINED: ‘Person’ means any natural
person, firm, corporation, club, municipality, district or public agency, and all
associations or combinations of person whenever acting for themselves or by
any agent, servant or employee.”
“SECTION 103. PERMISSION DEFINED. “Unless otherwise
expressly provided, ‘permission’ means written permission, granted by the
General Manager of the East Bay Regional Park District or the General
Manager’s designee.”
32
matter of law, Ordinance 38 did not apply to actions taken by EBRPD’s Board
of Directors. Appellants challenge this ruling based on the overarching
premise that Ordinance 38, by definition, applies to the actions of EBRPD’s
Board of Directors. We find appellants’ challenge unavailing.
Appellants ask us to consider that Ordinance 38 includes in its
definition of the “person[s]” subject to its prohibitions “any . . . district or
public agency, and . . . any agent . . . or employee,” and “[t]he District
certainly falls within the plain meaning of ‘any district.’ ” However, “the
‘plain meaning’ rule does not prohibit a court from determining whether the
literal meaning of the statute comports with its purpose or whether such a
construction of one provision is consistent with other provisions of the
statute. The meaning of a statute may not be determined from a single word
or sentence; the words must be construed in context, and the provisions
relating to the same subject matter must be harmonized to the extent
possible. [Citation.] Literal construction should not prevail if it is contrary to
the legislative intent apparent in the statute. The intent prevails over the
letter, and the letter will, if possible, be so read as to conform to the spirit of
the act. [Citations.] An interpretation that renders related provisions
nugatory must be avoided [citation], each sentence must be read not in
“CHAPTER II - REGULATIONS
“SECTION 200. General Regulations.
“200.1 All persons entering upon District parkland shall abide by the
rules and regulations of the District, the laws of the State of California, and
all applicable county and/or municipal ordinances.”
“200.2 The provisions of this Ordinance shall not apply to employees of
the District or to the concessionaries or their employees engaged in and
acting within the scope of their authorized duties and concession activities or
to allied agency emergency personnel in the performance of their official
duties. However, District employees and concessionaires and their employees
shall abide by the laws of the State of California and all applicable county
and/or municipal ordinances (rev. 4/12).”
33
isolation but in the light of the statutory scheme [citation], and if a statute is
amenable to two alternative interpretations, the one that leads to the more
reasonable result will be followed [citation].” (Lungren v. Deukmejian (1988)
45 Cal.3d 727, 735.)
Under its enabling legislation in section 5558, EBRPD’s Board of
Directors is mandated to (a) “superintend, control, and make available to all
of the inhabitants of the district, subject to its ordinances, rules, and
regulations, all public parks, playgrounds, beaches, parkways, scenic drives,
boulevards, open spaces, and other facilities for public recreation belonging to
the district or under its control;” (b) “adopt all ordinances, rules, and
regulations necessary for the administration, government, protection, and
use of the property, improvements, and facilities belonging to the district or
under its control”; and (c) “in general, do all acts necessary to the proper
execution of the powers and duties granted to, and imposed upon it by this
article, and to manage and control the business and affairs of the district.”
Consistent with this legislative mandate, it is apparent that EBRPD adopted
Ordinance 38 to provide rules and regulations for the general public’s use of
district land, not to govern EBRPD’s administration of district land, which is
subject to separate “Operating Guidelines,” of which we have taken judicial
notice. (See fn. 2, ante.)
Because Ordinance 38 constitutes the rules and regulations for the
general public’s use of district land, EBRPD made a concerted effort to
provide that Ordinance 38 would not apply to its employees and
concessionaires acting in the performance of their duties and included
separate definitions for EBRPD and the Board of Directors. While there is no
question that, if read literally, the definition of “person” would include
EBRPD and its Board of Directors, to so read the language would thwart and
34
conflict with EBRPD’s legislative mandate to maintain its lands under
section 5541 and manage and control the business and affairs of the district
under section 5558. Another “fundamental rule[] of statutory construction is
that a law should not be applied in a manner producing absurd results,
because the Legislature is presumed not to intend such results.” (Fireside
Bank Cases (2010) 187 Cal.App.4th 1120, 1129.) Here, appellants’ expansive
interpretation of “person” could lead to such absurd results. For example,
theoretically EBRPD and its Board of Directors, as “persons,” could be subject
to a lawsuit for a violation of Ordinance 38 when entering into any agreement
with a contracting landscaper to perform maintenance on district land that
necessitated the removal of any tree, living or dead. We therefore conclude
the only reasonable interpretation of EBRPD Ordinance 38 is that it does not
apply to EBRPD’s actions, undertaken pursuant to its statutory authority –
the issuance of Resolution No. 2017-03-065 and the execution of the MOU
with PG&E.
Because EBRPD’s approval of the MOU was not subject to Ordinance
38, the second cause of action based on a violation of that ordinance does not
lie and the demurrer was properly sustained without leave to amend. As we
have noted, “where the nature of the plaintiff’s claim is clear, and under
substantive law no liability exists, a court should deny leave to amend
because no amendment could change the result.” (City of Atascadero, supra,
68 Cal.App.4th at p. 459.) In light of our determination, we decline to
address the parties’ other contentions.
D. Dismissal of Third Cause of Action
The amended pleading’s third cause of action seeks relief based on
allegations that appellants were not given adequate notice and an
opportunity to be heard before EBRPD approved the MOU, thereby violating
35
appellants’ due process rights under the California Constitution, article I,
section 7. This cause of action is premised on the theory that certain land use
decisions may have such a significant impact on nearby property owners so
as to constitute a deprivation of property rights in violation of the Due
Process Clause in the California Constitution, thereby entitling appellants to
adequate notice and an opportunity to be heard.
The trial court dismissed this cause of action on the basis that
appellants did not state a claim for a violation of their constitutional due
process rights because the pleading failed to allege a general rezoning or
governmental deprivation of a significant or substantial property interest. In
denying appellants’ motion to vacate the judgment, the trial court expanded
on its reasons for dismissal, stating, in pertinent part, that appellants had
“offered little support” for their conclusion that EBRPD’s approval of the
MOU was an adjudicatory approval subject to “due process principles.”
On appeal, appellants contend EBRPD’s approval of the MOU is
“adjudicative” in nature, thereby triggering constitutional due process
protections of notice and hearing under Horn v. County of Ventura (1979) 24
Cal.3d 605 (Horn), Scott v. City of Indian Wells (1972) 6 Cal.3d 541 (Scott),
and Calvert v. County of Yuba (2006) 145 Cal.App.4th 613 (Calvert). We see
no merit to the contention and a rendition of the facts in Horn, Scott, and
Calvert, demonstrates why they are clearly inapposite to the case before us.
At issue in Horn was a county’s approval of the proposed division of a
property into lots. (24 Cal.3d at p. 610.) The plaintiff alleged that some of
the proposed subdivided lots were “topographically unsuited for residential
construction, that the design of the subdivision will hinder access to
plaintiff’s property thereby creating substantial traffic and parking
congestion, and that the county’s environmental assessment of the project is
36
inadequate.” (Id. at p. 611.) Our Supreme Court found that because
approval of the subdivision constituted a “ ‘quasi-adjudicatory’ ” act of local
government, those persons affected by such a land use decision were
constitutionally entitled to notice and an opportunity to be heard prior to the
final decision. (Id. at p. 612.) Scott similarly involved an action seeking to
void the grant of a conditional use permit allowing construction of a large,
planned development on land lying just within the city limits; the plaintiffs
and the class they represented owned neighboring land lying just outside the
city limits. (6 Cal.3d at p. 544.) Because of the clear administrative and
adjudicatory nature of the use permit procedure, both statutory and
constitutional provisions called for notice and hearing of adjoining
landowners who resided in the city. (Id. at pp. 548-549.) The only question
was whether the city also had to give notice and hearing to similarly situated
adjoining landowners who lived outside the city boundaries, which was
answered in the affirmative. (Id. at p. 549.) Finally, Calvert was in regard to
a county’s approval of a mining operator’s request for a “vested rights”
determination allowing the right to mine “ ‘aggregate’ (sand, gravel and rock
for construction) from approximately 3,430 acres” in the 10,000 acres of the
“Yuba Goldfields.” (145 Cal.App.4th at p. 618.) The petitioners were found to
be constitutionally entitled to notice and hearing as the administrative
procedure for a “vested rights” determination was similar to the basic
procedure for determination of a surface mining permit, which was
concededly “ ‘adjudicatory in nature and therefore subject to notice and
hearing requirements.’ ” (Id. at pp. 625-626.) Unlike the situations in Horn,
Scott, and Calvert, concerning “government conduct . . . affecting the
relatively few” (Horn, supra, 24 Cal.3d at p. 614; italics added), we are here
concerned with what are “unquestionably” quasi-legislative acts, to which
37
due process requirements of notice and hearing do not apply. (San Diego
Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 207, 211 (San
Diego Bldg. Contractors).)
When EBRPD’s Board of Directors held a public hearing, issued its
Resolution No. 2017-03-065 and entered into the MOU with PG&E, it was
acting under both its expansive statutory authority to control and manage
district-owned lands (§§ 5541, 5558), and its legislative authority to
“determine all questions of policy” (§§ 5537, 5547). “Fundamental to this
conclusion is the proposition that legislative action encompasses more than
law-making, [because in considering PG&E’s funding request] the board of
directors plainly was not enacting legislation. But quasi-legislative bodies,
like the Legislature itself, do far more than their primary function of law[-
]making. . . . For example, they appropriate and borrow money for public
purposes [citation], they decide when and where the power of eminent
domain is to be exercised [citation], [and] they decide whether various civic
improvements are to be made [citation].” (Wilson v. Hidden Valley Mun.
Water Dist. (1967) 256 Cal.App.2d 271, 278 (Wilson).) Thus, the fact that
EBRPD’s Board of Directors “was not enacting ordinances embodying rules
and regulations does not make its actions any less quasi-legislative.” (Id. at
p. 279)
Additionally, the quasi-legislative nature of the actions of EBRPD’s
Board of Directors is not impacted by the fact that “the procedure used by the
board of directors in arriving at its decision embodied characteristics of the
judicial [or an adjudicative-like] process.” (Wilson, supra, 256 Cal.App.2d at
p. 279.) “Legislative bodies often act in response to specific petitions and
with regard to specific parties. [Citations.] [And, like courts, a] Legislature . .
. exercising quasi-legislative powers commonly resort[s] to the hearing
38
procedure to uncover, at least in part, the facts necessary to arrive at a sound
and fair legislative decision.” (Ibid.) “Generally speaking, a hearing on a
legislative matter is held for the purpose of informing the law makers
regarding relevant facts and policy considerations; it is not held for the
protection of individual rights, property or otherwise.” (Bayless v. Limber
(1972) 26 Cal.App.3d 463, 470; see San Diego Bldg. Contractors, supra, 13
Cal.3d at pp. 207, 211-212 [zoning ordinance establishing a uniform height
limitation for buildings along the city’s coastline was “unquestionably a
general legislative act,” to which “due process requirements of notice and a
hearing did not apply,” even though it might well be anticipated that the
ordinance would deprive persons of “significant property interests”];
Quinchard v. Board of Trustees of Alameda (1896) 113 Cal. 664, 669-670
[“whether an existing street shall be improved . . . is a question to be
addressed to the governing body of a municipality in its legislative capacity,
and its determination upon that question, as well as the character of the
improvement to be made, is a legislative act”; “[t]he act does not cease to be
legislative because the members of the city council are required to exercise
their judgment in determining whether the improvements should be made,
. . . but is the conclusion or opinion which they form in the exercise of the
discretionary power that has been [entrusted] to them, and upon a
consideration of the public welfare and demands for which they are to
provide”]; Joint Council of Interns & Residents v. Board of Supervisors (1989)
210 Cal.App.3d 1202, 1207, 1211 [board of supervisor’s approval of contract
for employment of intern and residents at county facilities was legislative,
not adjudicatory, act; “the ultimate question of whether the contract should
be executed was a political one shaped by discretion and public policy”; “ ‘the
award of a contract, and all of the acts leading up to the award, are
39
legislative in character’ ”]; Duran v. Cassidy (1972) 28 Cal.App.3d 574, 581-
582 [city council’s decision to build and operate golf course in a public park
was “essentially legislative in nature” as decision to enter into golf course
business was a “policy decision”].)
We find both instructive and dispositive the case of Oceanside Marina
Towers Assn. v. Oceanside Community Development Com. (1986) 187
Cal.App.3d 735 (Oceanside Marina Towers). In Oceanside Marina Towers,
the plaintiff Oceanside Marina Towers Association (Association) challenged a
CEQA negative declaration of environmental impact issued by the Oceanside
Community Development Commission (Commission) and the City of
Oceanside (City). (Id. at pp. 737-738.) “Members of the Association own[ed]
and occup[ied] the Marina Towers Luxury Condominiums which [were]
located near the proposed site of a relocated railroad switchyard. The
relocation of the switchyard from its current site in downtown Oceanside to
the proposed site on the outskirts of the city [was] a central element in the
Commission’s downtown redevelopment plan. It [was] the Association’s
position that the Commission and the City failed to adequately consider the
adverse environmental impact which the relocated switchyard would have on
Marina Towers.” (Id. at p. 738.) In dismissing the Association’s cause of
action based “on the theory articulated in” Horn, supra, 24 Cal.3d 605, the
Oceanside court reasoned as follows: “In the present case . . . the Commission
and the City are called upon to consider the interests of nearby property
owners such as the Association as well as those of property owners and
businesses in the downtown area who would be benefited by the removal of
the switchyard, area residents whose access to the downtown area and
beaches would be improved, and motorists who would benefit from reduced
traffic congestion. Indirect community factors must also be evaluated such as
40
the increased tax base a rejuvenated downtown business district might
create. In sum, the relocation of the switchyard, like any other decision
regarding the location of a public improvement, requires the assessment of a
broad spectrum of community costs and benefits which cannot be limited to
‘facts peculiar to the individual case.’ ” (Oceanside Marina Towers, supra, at
pp. 746-747, quoting in part, San Diego Bldg. Contractors, supra, 13 Cal.3d at
p. 212.)
So, too, in this case, the actions of EBRPD’s Board of Directors —
holding its March 21, 2017, public hearing, issuing its Resolution No. 2017-
03-065, and entering into the MOU with PG&E — were all quasi-legislative
actions, not quasi-adjudicatory ones. The Board of Directors’ decisions were
not limited to a consideration of the interests of nearby property owners such
as the individual appellants or appellant Save Lafayette Trees and its
members. Instead, the Board of Directors was tasked with considering
PG&E’s funding request in the context of how the proposed tree removal and
replacement and future maintenance operations would impact EBRPD’s “
‘Core Mission,’ ” to “ ‘maintain a high quality of diverse system of
interconnected parklands which balances public usage . . . with protection
and preservation of our natural and cultural resources.’ ” The removal of the
245 trees as part of the approved project, “like any other decision regarding”
the maintenance of district land, required the Board of Directors to assess “a
broad spectrum of community costs and benefits which cannot be limited to
‘facts peculiar to the individual case.’ ” (Oceanside Marina Towers, supra,
187 Cal.App.3d at p. 747, quoting in part, San Diego Bldg. Contractors,
supra, 13 Cal.3d at p. 212.)
Accordingly, the demurrer to the third cause of action was properly
sustained without leave to amend as no amendment could change the fact
41
that EBRPD’s March 21, 2017 public hearing, the approval of Resolution No.
2017-03-065, and the execution of the MOU with PG&E, were all quasi-
legislative acts to which constitutional due process rights of notice and
hearing were inapplicable. Having determined that constitutional due
process rights of notice and a hearing did not attach to EBRPD’s quasi-
legislative acts, we are not required and do not determine whether the
amended pleading sufficiently alleges or could be amended to sufficiently
allege that appellants suffered a substantial or significant deprivation of
property rights.
DISPOSITION
The judgment of dismissal and order denying the motion to vacate
judgment are affirmed. Respondents East Bay Regional Park District and
Pacific Gas and Electric Company are awarded their costs on appeal.
42
_________________________
Petrou, Acting P.J.
WE CONCUR:
_________________________
Jackson, J.
_________________________
Wiseman J.*
A156150
*Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
43
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Steven K Austin
Counsel: Law Offices of Stephen C. Volker, Stephan C. Volker,
Alexis E. Krieg, Stephanie L. Clarke, and Jamey M.B.
Volker for Petitioners and Appellants.
Shute, Mihaly & Weinberger, Tamara S. Galanter and
Caitlin F. Brown; East Bay Regional Park District, Carol R.
Victor and Rachel B. Sater, for Defendant and Respondent.
SF North Bay Law, Sheryl L. Schaffner as Amicus Curiae
on behalf of Defendant and Respondent.
Miller Starr Regalia, Arthur F. Coon and George B. Speir,
for Real Part in Interest and Respondent.
44