Committee to Relocate Marilyn v. City of Palm Springs

Filed 3/2/23 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
COMMITTEE TO RELOCATE D080907
MARILYN,
Plaintiff and Appellant,
(Super. Ct. No. CVRI2101435)
v.
ORDER MODIFYING OPINION
CITY OF PALM SPRINGS,
NO CHANGE IN JUDGMENT
Defendant and Respondent;
PS RESORTS,
Real Party in Interest and
Respondent.
THE COURT:
It is ordered that the opinion filed herein on February 23, 2023, be
modified as follows:
On page 32, second sentence of the first paragraph, the word “not” is
inserted to now read as follows:
The City demurred, arguing the statutory provisions concerning
street vacation were not applicable because the City did not
ultimately seek to vacate the public’s vehicular access rights to
Museum Way.
There is no change in judgment.
McCONNELL, P. J.
Copies to: All parties
2
Filed 2/23/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
COMMITTEE TO RELOCATE D080907
MARILYN,
Plaintiff and Appellant,
(Super. Ct. No. CVRI2101435)
v.
CITY OF PALM SPRINGS,
Defendant and Respondent;
PS RESORTS,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Riverside, Ronald
Johnson, Judge. Reversed and remanded with instructions.
Chatten-Brown, Carstens & Minteer, Amy C. Minteer, Michelle N.
Black, and Sunjana Supekar for Plaintiff and Appellant.
Best Best & Krieger, Richard T. Egger, Amy E. Hoyt, and Avi
Rutschman for Defendant and Respondent.
Blasdel Guinan Lawyers and Diane C. Blasdel for Real Party in
Interest and Respondent.
I
INTRODUCTION
The City of Palm Springs closed off one of its downtown streets to all
vehicular traffic for a period of three years to allow a Palm Springs tourism
organization to install and display a large statue of Marilyn Monroe in the
middle of the street.
A citizens’ group called the Committee to Relocate Marilyn (hereafter,
the Committee) filed a petition for writ of administrative mandate
challenging the street closure. It alleged the City did not have the statutory
authority to close the street under Vehicle Code section 21101,
subdivision (e), which permits cities to “[t]emporarily clos[e] a portion of any
street for celebrations, parades, local special events, and other purposes” for
the safety and protection of persons who use the street during the temporary
closure. In the Committee’s view, the street closure was impermissible
because it was long-term—not temporary. Additionally, the Committee
alleged the City erroneously declared the street closure categorically exempt
from environmental review under the California Environmental Quality Act
(CEQA) (Pub. Resources Code, §§ 21000 et seq.).
The City demurred to the petition for writ of administrative mandate,
arguing it had the authority to close the street for three years under Vehicle
Code section 21101, subdivision (e), and its local equivalent, Palm Springs
Municipal Code section 12.80.010. The City claimed the street closure was
temporary, and therefore permissible, because it was not permanent.
Further, the City argued the CEQA cause of action was untimely because the
City filed a notice of exemption stating the project was categorically exempt
from environmental review, thus triggering a 35-day statute of limitations for
the filing of any legal challenge to the exemption finding (Pub. Resources
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Code, § 21167, subd. (d)). According to the City, the Committee did not assert
its CEQA claim until after the expiration of the 35-day statute of limitations
period. The trial court sustained the demurrer without leave to amend and
entered a judgment of dismissal in favor of the City.
Contrary to the trial court, we conclude the Committee pleaded
allegations sufficient to establish that the City exceeded its authority under
Vehicle Code section 21101, subdivision (e), and Palm Springs Municipal
Code section 12.80.010. These enactments allow cities to temporarily close
portions of streets for short-term events like holiday parades, neighborhood
street fairs, and block parties—proceedings that generally last for hours,
days, or perhaps as long as a few weeks. They do not vest cities with the
expansive power to close public streets—for years on end—so statues or other
semi-permanent works of art may be erected in the middle of those streets.
We also conclude the Committee pleaded allegations sufficient to
establish the timeliness of its CEQA cause of action. As noted, the City filed
a notice of exemption declaring the project categorically exempt from
environmental review. However, the notice of exemption stated the public’s
vehicular access to the downtown street would be vacated as part of the
project. But, after the notice of exemption was filed, the City abandoned its
plan to vacate vehicular access to the street and elected to close the street
instead. Because the City materially changed the project after it filed its
notice of exemption, and it did not afford the public an opportunity to
consider the revised project or its environmental effects, the notice of
exemption did not trigger a 35-day statute of limitations. Instead, the CEQA
cause of action was subject to a default statute of limitations of 180 days,
measured from the date the Committee knew or should have known about
the changed project. Based on our review of the operative pleading, the
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Committee timely filed its CEQA cause of action within the applicable 180-
day statute of limitations period.
In light of these conclusions, we reverse the judgment of dismissal,
vacate the demurrer ruling as to the Vehicle Code, Palm Springs Municipal
Code, and CEQA causes of action, and instruct the trial court to enter a new
order overruling the demurrer as to these three causes of action.
II
BACKGROUND
A. Factual Background
This appeal arises from a judgment entered after the sustaining of a
demurrer without leave to amend. Therefore, the following background
section is taken from the allegations of the operative first amended petition
for writ of administrative mandate and other matters properly subject to
judicial notice. (Dudek v. Dudek (2019) 34 Cal.App.5th 154, 160, fn. 4.)
Forever Marilyn is a 26-foot-tall, 34,000-pound statue of the actress
Marilyn Monroe, made out of painted aluminum and stainless steel. It
portrays Monroe in a famous scene from the 1955 film, “The Seven Year
Itch,” in which Monroe’s white dress is lifted up by a gust of wind from a New
York City subway grate. A photograph of Forever Marilyn is set forth as
Figure 1 at the end of this judicial opinion.
In May 2012, Forever Marilyn was acquired by PS Resorts, a nonprofit
organization that promotes tourism in Palm Springs, where the actress
Monroe was reportedly first discovered in 1949. PS Resorts displayed
Forever Marilyn to the public on an empty lot in downtown Palm Springs
until May 2014. Thereafter, Forever Marilyn was displayed at various other
sites in the United States and abroad.
4
In 2016, the Palm Springs City Council approved a plan to install
Forever Marilyn in a new public park in downtown Palm Springs. The park
is shaped like a horizontal rectangle and it is bordered to the west by
Museum Drive, to the south by Museum Way, and to the east by Belardo
Way. The Palm Springs Art Museum is located on the western side of
Museum Drive at the intersection of Museum Drive and Museum Way.
In October 2020, PS Resorts requested approval from the City Council
and other public officials to place Forever Marilyn directly on Museum Way
between Museum Drive and Belardo Way, rather than placing it in the park.
PS Resorts’ proposal would transform Museum Way into a vehicle-free,
pedestrian-only “art walk” leading from the intersection of Museum Way and
Belardo Way to the entrance of the Palm Springs Art Museum. PS Resorts
believed Museum Way was a desirable site for Forever Marilyn because it
would provide the statue with a picturesque mountain backdrop and visibility
from a major downtown thoroughfare.
City officials prepared a staff report endorsing PS Resorts’ request.
The staff report agreed with PS Resorts that Forever Marilyn would have a
scenic backdrop and high visibility if it were placed on Museum Way.
Further, it noted that pre-installed bollards could be deployed on either end
of Museum Way to restrict vehicle access to the street and ensure the safety
of pedestrians who would queue up to view or photograph the statue. The
staff report considered alternative locations for Forever Marilyn, including
the downtown park, but found them unsatisfactory for site-specific reasons.
The staff report acknowledged the placement of the statue on Museum Way
could be considered a project for purposes of CEQA. However, it stated that
City staff determined the placement was categorically exempt from
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environmental review under CEQA’s “Class 1” exemption for existing
facilities (Guidelines,1 § 15301).
Members of the public submitted dozens of written comments both
supporting and opposing the statue’s proposed placement on Museum Way.
Several persons who opposed the placement on Museum Way specifically
disagreed with the plan to close the street to vehicular traffic. Some
members of the public predicted the street closure would contribute to
greater traffic congestion in the downtown area.
The City Council considered PS Resorts’ proposal at a regular meeting
on November 12, 2020. By consensus, the City Council accepted the staff
report’s recommendations. The minutes from the regular meeting state that
the City Council “provided direction to the City Manager as follows:
“a. Placement of the Forever Marilyn sculpture created by the artist
Seward Johnson within Museum Way between Museum Drive and
Belardo Road adjacent to the Downtown Park.
“b. Authorization for the City Manager to execute a three-year License
Agreement with PS Resorts in a form approved by the City Attorney
authorizing the placement of the Forever Marilyn sculpture within
Museum Way, with direction to include a termination clause with
sufficient notice to relocate the sculpture and periodic updates to the
City Council regarding impacts to the Palm Springs Art museum and
surrounding area.
1 “ ‘Guidelines’ refers to the administrative regulations implementing
CEQA found in title 14, section 15000 et seq., of the California Code of
Regulations, as authorized by Public Resources Code section 21083. The
Secretary of the Natural Resources Agency is responsible for adopting
guidelines and amendments thereto, based on recommendations from the
Office of Planning and Research.” (North Coast Rivers Alliance v. Westlands
Water Dist. (2014) 227 Cal.App.4th 832, 838, fn. 3.)
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“c. Authorization for the City Engineer to proceed with the process of
vacating the public’s vehicular access rights on a portion of Museum
Way between Museum Drive and Belardo Road.” (Italics added.)
Soon after the City Council meeting, the City and PS Resorts executed
a three-year license agreement, effective December 2, 2020, permitting PS
Resorts to install and display Forever Marilyn on Museum Way between
Museum Drive and Belardo Way. The City has a contractual right to
terminate the agreement with cause in the event of an uncured breach, as
well as a contractual right to terminate the agreement for any reason with a
365-day notice to PS Resorts. The agreement requires PS Resorts to remove
the statue and restore the licensed area to its original condition upon the
termination or expiration of the agreement. However, it states the license
may be extended beyond the original three-year term.
On December 29, 2020, the City filed with the county clerk a notice of
exemption, indicating the project was categorically exempt from CEQA under
the “existing facilities” exemption. It identified PS Resorts as the project
applicant and listed the project location as, “On Museum Way, between
Belardo Road and Museum Drive.” It stated, “[t]he project consists of the
placement of the ‘Forever Marilyn’ statue, which is a 26-foot tall sculpture,
within an existing street, which requires the City to enter into a License
Agreement with P.S. Resorts to authorize the placement [sic] the statue and
vacate the public’s vehicular access rights on a portion of Museum Way.”
(Italics added.) Further, it stated the project was exempt for the following
reasons: “In accordance with Section 15301 of the CEQA Guidelines, on
11/12/2020 the City Council deemed the project exempt as a Class 1 project
consisting of the operation, repair, maintenance, permitting, leasing,
licensing, or minor alteration of existing public structures, involving
7
negligible or no expansion of use beyond that existing at the time of the lead
agency’s determination.”
On January 27, 2021, the Committee sent a letter to the City Manager
requesting clarification on whether the City still intended to close vehicular
access to Museum Way through a street vacation process. Nearly a month
later, on February 24, 2021, the City Attorney responded with a letter stating
the City planned to temporarily restrict vehicular access to Museum Way,
rather than vacating the street. He stated the City opted not to vacate the
street because it was unlikely the City could meet the statutory requirements
necessary to do so.
On March 22, 2021, the City’s Development Services Director issued a
determination authorizing the temporary closure of Museum Way to
vehicular traffic under Vehicle Code section 21101, subdivision (e), and Palm
Springs Municipal Code section 12.80.010. It approved the closure of
Museum Way “for no longer than the period for which the placement of
Forever Marilyn is authorized pursuant to the temporary license agreement
entered into between the City of Palm Springs and PS Resorts.”2
B. Procedural Background
On March 19, 2021 (three days before the temporary street closure
determination), the Committee filed a petition for writ of administrative
mandate naming the City as respondent and PS Resorts as real party in
interest. It requested a peremptory writ of mandate requiring the City to
void its approval of Museum Way’s closure to vehicular traffic and an
injunction prohibiting the City from taking any further action to install
2 The Committee filed an administrative appeal from the Development
Services Director’s determination. However, the City rejected the appeal,
reasoning that CEQA, the Public Resources Code, and the Municipal Code
did not authorize the appeal.
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Forever Marilyn. It challenged the installation of Forever Marilyn on several
grounds, but it did not assert a CEQA cause of action.
Thereafter, the Committee applied for a temporary restraining order to
enjoin the City from taking any additional actions to install Forever Marilyn.
The trial court initially issued the temporary restraining order and ordered
the City to show cause why a preliminary injunction should not be issued.
However, after the submission of further briefing, the court denied the
preliminary injunction and dissolved the temporary restraining order, thus
allowing the installation of Forever Marilyn to proceed. Museum Way was
ultimately closed off to vehicular traffic and Forever Marilyn was installed on
Museum Way, though it is not apparent from the appellate record exactly
when these events occurred.
On April 22, 2021, the Committee filed the operative first amended
petition for writ of mandate. The petition alleged the three-year closure of
Museum Way violated Vehicle Code section 21101, subdivision (e), and Palm
Springs Municipal Code section 12.80.010, both of which permit local
authorities to close portions of streets temporarily and for specified purposes.
It alleged the City violated CEQA because the installation of Forever Marilyn
and the closure of Museum Way could have adverse environmental impacts
on traffic, aesthetics, and historical resources, yet the City did not conduct an
environmental review for the project.3 Further, it alleged causes of actions
for declaratory relief, violations of the Government Code, and violations of
the street vacation provisions of the Streets and Highway Code.
3 According to the operative petition for writ of mandate, the Palm
Springs Art Museum was listed on the National Register of Historic Places
and designated by the City as a Class 1 historic site.
9
The City demurred to the Vehicle Code, Palm Springs Municipal Code,
CEQA, and Streets and Highway Code causes of action. The City argued the
Vehicle Code and Municipal Code causes of action failed to state a claim
because the closure of Museum Way was not permanent and the street was
closed for a permissible purpose. It claimed the CEQA cause of action was
untimely because it was not asserted within 35 days of December 29, 2020,
when the City filed its notice of exemption. And it contended the Streets and
Highway Code cause of action failed because street vacation procedures do
not apply to temporary street closures (like the closure of Museum Way).
The Committee opposed the City’s demurrer. It argued the demurrer
to the Vehicle Code and Palm Springs Municipal Code causes of action should
be overruled because the closure of Museum Way was long-term—not
temporary—and the installation of Forever Marilyn was inconsistent with
the types of statutorily-enumerated events warranting a temporary street
closure. The Committee asserted its CEQA claim was timely because the
City changed the scope of the project after it filed the notice of exemption.
According to the Committee, the City changed the project because it
ultimately authorized a temporary street closure instead of a street vacation.
Because the project changed, the Committee asserted that a default 180-day
statute of limitations applied and began running on March 22, 2021, when
the City first authorized the temporary street closure. The Committee
asserted its CEQA cause of action was timely because it was filed within the
180-day period statute of limitations. As for the Streets and Highway cause
of action, the Committee repeated its contention that the City failed to
comply with the requirements necessary for street vacation.
The trial court sustained the demurrer without leave to amend.
Thereafter, the Committee requested dismissal of its still-pending
10
declaratory relief and Government Code causes of action, and the trial court
entered a judgment of dismissal for the City.
III
DISCUSSION
A. Standard of Review
“ ‘In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.’ [Citation.] ‘ “We treat the
demurrer as admitting all material facts properly pleaded.” ’ [Citation.] We
‘accept as true not only those facts alleged in the complaint but also facts that
may be implied or inferred from those expressly alleged.’ [Citation.] ‘We do
not, however, assume the truth of contentions, deductions, or conclusions of
fact or law.’ ” (Munoz v. Patel (2022) 81 Cal.App.5th 761, 771 (Munoz).)
“ ‘ “ ‘[A] demurrer based on an affirmative defense will be sustained only
where the face of the complaint discloses that the action is necessarily barred
by the defense.’ ” ’ ” (Silva v. Langford (2022) 79 Cal.App.5th 710, 716.)
“ ‘In considering a trial court’s order sustaining a demurrer without
leave to amend, “ ‘we review the trial court’s result for error, and not its legal
reasoning.’ ” ’ [Citation.] We ‘ “affirm the judgment if it is correct on any
theory.” ’ [Citation.] ‘And when [a demurrer] is sustained without leave to
amend, we decide whether there is a reasonable possibility that the defect
can be cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of discretion and we
affirm.’ [Citation.] ‘The burden of proving such reasonable possibility is
squarely on the plaintiff.’ ” (Munoz, supra, 81 Cal.App.5th at p. 771.)
11
B. The Trial Court Erred in Sustaining the Demurrer to the Vehicle Code
and the Palm Springs Municipal Code Causes of Action
This appeal requires us to decide whether the City acted in excess of its
authority under the Vehicle Code and the Palm Springs Municipal Code
when, as alleged by the Committee, it closed off one of its public streets to
vehicular traffic for three years to allow for the installation and exhibition of
Forever Marilyn in the street. Accepting the Committee’s allegations as true
for purposes of this appeal, we conclude the City exceeded its authority.
1. Statutory Framework
“ The streets of a city belong to the people of the state, and every citizen
of the state has a right to the use thereof, subject to legislative control ....
The right of control over street traffic is an exercise of a part of the sovereign
power of the state ....’ ” (Rumford v. City of Berkeley (1982) 31 Cal.3d 545,
549 (Rumford).) “ ‘ “ ‘Streets and highways are established and maintained
primarily for purposes of travel and transportation by the public, and uses
incidental thereto.’ ” ’ ” (Citizens Against Gated Enclaves v. Whitley Heights
Civic Assn. (1994) 23 Cal.App.4th 812, 819.) “ ‘ “The use of highways for
purposes of travel and transportation is not a mere privilege, but a common
and fundamental right, of which the public and individuals cannot rightfully
be deprived ... [All] persons have an equal right to use them for purposes of
travel by proper means, and with due regard for the corresponding rights of
others.” ’ ” (Rumford, at p. 550, italics omitted.)
Vehicle Code section 21 embodies the state’s preemption over the field
of traffic control. It states, “Except as otherwise expressly provided, the
provisions of this code are applicable and uniform throughout the state and
in all counties and municipalities therein, and a local authority shall not
enact or enforce any ordinance or resolution on the matters covered by this
code … unless expressly authorized by this code.” (Veh. Code, § 21, subd. (a).)
12
“Thus, unless ‘expressly provided’ by the Legislature, a city has no authority
over vehicular traffic control.” (Rumford, supra, 31 Cal.3d at p. 550; see Save
the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th
1172, 1177–1178 [“A city has no authority over vehicular traffic control
except as expressly provided by the Legislature.”].) “The delegation of power
to local authorities to enact traffic regulations applicable within their
jurisdictions is strictly construed.” (City of Poway v. City of San Diego (1991)
229 Cal.App.3d 847, 858; see Save the Sunset Strip Coalition, at p. 1178
[“Statutory authority to prescribe traffic rules is strictly construed.”].)
The Legislature delegated some of the state’s plenary power over traffic
control to local authorities in Chapter 1, Article 3 of the Vehicle Code
(sections 21100–21118). Pertinent here, Vehicle Code section 21101,
subdivision (e), provides: “Local authorities, for those highways under their
jurisdiction, may adopt rules and regulations by ordinance or resolution … on
the following matters: [¶] ... [¶] (e) Temporarily closing a portion of any street
for celebrations, parades, local special events, and other purposes when, in
the opinion of local authorities having jurisdiction or a public officer or
employee that the local authority designates by resolution, the closing is
necessary for the safety and protection of persons who are to use that portion
of the street during the temporary closing.”4
Palm Springs Municipal Code section 12.80.010 largely mirrors this
provision of the Vehicle Code. In relevant part, it states: “The director of
community development for the city of Palm Springs may close a portion of
any highway, street or public way for celebrations, parades, local special
events, and other purposes when, in the opinion of such director, the closing
4 The Vehicle Code uses the terms “street” and “highway” synonymously.
(Veh. Code, §§ 360, 590; see Rumford, supra, 31 Cal.3d at p. 550, fn. 5.)
13
is necessary for the safety and protection of persons who are to use that
portion of the highway, street or public way during the closing.” (Palm
Springs Mun. Code, § 12.80.010, subd. (a).) For purposes of this appeal, we
apply the same analysis to both the Vehicle Code and the Palm Springs
Municipal Code causes of action, as the parties have done when discussing
these causes of action in their appellate briefs.
2. Scope of Vehicle Code section 21101, subdivision (e)
Against this statutory landscape, we turn to whether Vehicle Code
section 21101, subdivision (e), permitted the City to close Museum Way for
three years to allow for the installation and display of Forever Marilyn. This
requires us to undertake a statutory interpretation analysis.
“ ‘When we interpret a statute, “[o]ur fundamental task ... is to
determine the Legislature’s intent so as to effectuate the law’s purpose. We
first examine the statutory language, giving it a plain and commonsense
meaning. We do not examine that language in isolation, but in the context of
the statutory framework as a whole in order to determine its scope and
purpose and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the Legislature did
not intend. If the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.” [Citation.] “Furthermore, we consider
portions of a statute in the context of the entire statute and the statutory
scheme of which it is a part, giving significance to every word, phrase,
sentence, and part of an act in pursuance of the legislative purpose.” ’ ” (City
of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616–617.)
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We begin by examining the language of Vehicle Code section 21101,
subdivision (e). It allows local authorities to “[t]emporarily” close portions of
streets “for celebrations, parades, local special events, and other purposes,”
where necessary to protect and safeguard persons who are using the street
during the temporary street closure. (Veh. Code, § 21101, subd. (e).) One of
the central disputed issues in this appeal is the meaning of the word,
“temporarily.” The Vehicle Code does not define, “temporarily.” Therefore,
we must deploy means other than a legislative definition to discern the
Legislature’s intent when it used the word, “temporarily,” in this provision.
The City argues “temporary” means that something lasts for a limited
time—regardless of how long that time may be. In other words, the City
claims “temporarily” is an antonym of “permanently.” To support this
argument, the City cites dictionary definitions of the words “temporary” and
“temporarily,” which we may properly consider when analyzing the meaning
of the statute. (Dept. of Finance v. Commission on State Mandates (2022) 85
Cal.App.5th 535, 567 [“We may look to dictionary definitions to determine the
usual and ordinary meaning of a statutory term.”].) One especially relevant
dictionary definition, which we uncovered in our own independent research,
defines “temporarily” as, “For a time (only); during a limited time.” (Oxford
English Dict. (1933 supp.) p. 169, col. 1.)5 Applying its understanding of
“temporary” to the statute, the City argues it closed Museum Way
5 The parties cite modern dictionary definitions of “temporary” and
“temporarily.” Although such definitions may aid in discerning legislative
intent, we believe the more helpful dictionary definitions are those in
existence at or about the time the legislation in question was enacted. (See
Kouichi Taniguchi v. Kan Pacific Saipan, Ltd. (2012) 566 U.S. 560, 566–568.)
Vehicle Code section 21101, subdivision (e), was enacted in its original form
in 1965. (Stats. 1965, ch. 764, § 1.) Thus, we discuss the dictionary
definitions of “temporarily” that were in effect at or shortly after 1965.
15
temporarily because the closure was limited to the term of the license
agreement, which is three years.
The Committee defines the word “temporarily” differently. It claims
“temporarily” refers to something that lasts for a relatively short period of
time. Several dictionary definitions of the word, “temporarily,” bolster this
argument. (See Webster’s 3d New Internat. Dict. (3d ed. 1968) p. 2353, col. 3
[defining “temporarily” as, “for a brief period: during a limited time: briefly”];
see also Black’s Law Dict. (4th ed. 1968) p. 1634, col. 1 [“temporarily” means,
“Lasting for a time only, existing or continuing for a limited time, not of long
duration, not permanent, transitory, changing, but a short time.”], italics
added.) In the Committee’s view, the City did not close Museum Way
temporarily because, as all parties seemingly agree, three years is not a
relatively short period of time for the closure of a public street.
Standing in isolation, the word, “temporarily,” is reasonably susceptible
to both parties’ interpretations. Indeed, the Supreme Court has opined that,
“temporary” (the adjective form of the adverb, “temporarily”), “is a word of
much elasticity and considerable indefiniteness. [Citation.] It has no fixed
meaning in the sense that it designates any fixed period of time.” (State
Farm Mut. Auto. Ins. Co. v. Johnston (1973) 9 Cal.3d 270, 273.) We agree.
Thus, we decline to draw any conclusions about the Legislature’s intended
meaning based exclusively on its use of the word, “temporarily.”
However, the statutory language following the word, “temporarily,” in
Vehicle Code, section 21101, subdivision (e), provides us with the context
necessary to determine which party’s understanding is correct. As noted
above, “ ‘ “ ‘we consider portions of a statute in the context of the entire
statute and the statutory scheme of which it is a part, giving significance to
every word, phrase, sentence, and part of an act in pursuance of the
16
legislative purpose.’ ” ’ ” (Brennon B. v. Superior Court (2022) 13 Cal.5th 662,
673; see Kaanaana v. Barrett Bus. Servs., Inc. (2021) 11 Cal.5th 158, 169
[“words used in a statute are considered in context, not isolation”].)
Vehicle Code section 21101, subdivision (e), grants local authorities the
power to “temporarily” close portions of streets, but only for limited reasons—
for “celebrations, parades, local special events, and other purposes,” where
the closure is necessary to safeguard and protect persons using the street.
All of the proceedings warranting a temporary street closure share a common
characteristic. In all or nearly all circumstances, they take place over the
course of a few hours, days, or perhaps weeks. In the common and ordinary
sense, none of these proceedings are significantly protracted in duration, and
certainly none of them last for three or more years. Given that the word,
“temporarily,” precedes a list of short-term events that are always relatively
brief in duration, the most natural construction of “temporarily” is that it
likewise indicates the street closures must be brief in duration.
The City disagrees, noting that the statute allows local authorities to
temporarily close portions of streets for “other purposes,” a catch-all phrase
the City reads expansively to encompass both long- and short-term events.
We reject the City’s broad construction of the statutory phrase, “other
purposes.” “Under the maxim ejusdem generis (of the same kind), ‘if a statute
contains a list of specified items followed by more general words, the general
words are limited to those items that are similar to those specifically listed.’ ”
(Rincon Band of Luiseño Mission Indians, etc. v. Flynt (2021) 70 Cal.App.5th
1059, 1091–1092; see J. Arthur Properties, II, LLC v. City of San Jose (2018)
21 Cal.App.5th 480, 486 [“ ‘when a particular class of things modifies general
words, those general words are construed as applying only to things of the
same nature or class as those enumerated’ ”].) Applying that cannon of
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construction here, the general phrase, “other purposes,” must be limited by
the specific list of events preceding it. As just discussed, all of these
proceedings are widely understood to be short-term in nature.
The City also argues the Legislature sanctioned long-term street
closures because it did not impose concrete time limitations in the statute
itself. The City claims the statute could have been written to state, for
example, that local authorities may temporarily close portions of streets for
periods of time not to exceed one year (or some other amount of time). The
City’s argument is unconvincing. The mere fact the Legislature declined to
impose a definite time limitation for temporary street closures does not
logically suggest the duration of a given street closure was irrelevant to the
Legislature. It simply indicates the Legislature did not desire to impose on
local authorities a rigid and unyielding time limitation that would apply in
all circumstances. Instead, it used the word “temporarily” to limit street
closures to those lasting for a relatively brief period of time, depending on the
underlying need for, and purpose of, the street closure at issue.
The Committee’s construction of Vehicle Code section 21101,
subdivision (e), which we adopt as our own, is also the only one that is
consistent with the law’s broader statutory scheme. As we have discussed,
the state has plenary power over traffic control and any delegation of such
authority must be expressly provided. (Veh. Code, § 21; Rumford, supra, 31
Cal.3d at pp. 549–550.) Therefore, “ ‘ “if there is a doubt as to whether or not
[a traffic] regulation is a municipal affair, that doubt must be resolved in
favor of the legislative authority of the state.” ’ ” (Zack’s, Inc. v. City of
Sausalito (2008) 165 Cal.App.4th 1163, 1183.) The Committee’s
interpretation of Vehicle Code section 21101, subdivision (e), adheres to these
18
principles by limiting the power delegated from the state to local authorities.
The City’s interpretation turns these principles on their head.
Moreover, we must “avoid a construction that would lead to
unreasonable, impractical, or arbitrary results.’ ” (Poole v. Orange County
Fire Authority (2015) 61 Cal.4th 1378, 1385.) The City’s understanding of
Vehicle Code section 21101, subdivision (e), threatens to produce such a
result. Under the City’s expansive reading of the statute, a local authority
could close a portion of a public street for any length of time, so long as the
street closure ends at some time in the future. And it could do so for virtually
any purpose (recall, the City urges a broad reading of the statutory phrase,
“other purposes”), so long as the street closure is necessary to protect and
safeguard persons who are using the street during the street closure. We do
not believe the Legislature intended to delegate such a vast expansion of
power to local authorities when it granted them the right to “temporarily”
close portions of streets for celebrations, parades, local special events, and the
like.
For all these reasons, we conclude the most reasonable construction of
Vehicle Code section 21101, subdivision (e), is that it permits local authorities
to close portions of streets only for a relatively short period of time, assuming
there has been a determination that the closure is necessary to safeguard and
protect persons using the street during the temporary closing. It does not
authorize local authorities to close streets to vehicular traffic for whatever
non-permanent duration of time they desire.6
6 We have reviewed the legislative history of the 1965 bill that amended
Vehicle Code section 21101 to add the provision that is now subdivision (e).
(Assem. Bill No. 1401 (1965 Reg. Sess.) § 1.) It is sparse and does not clarify
the legislative intent behind the statutory provision at issue.
19
3. The City Exceeded its Authority under the Vehicle Code and the
Palm Springs Municipal Code
The Committee has alleged facts sufficient to establish that the City
exceeded its authority under Vehicle Code section 21101, subdivision (e), and
its Palm Springs Municipal Code analogue. According to the operative
petition for writ of administrative mandate, as well as documents subject to
judicial notice, the City approved the closure of Museum Way for three years
for the implementation and display of Forever Marilyn. The three-year
closure of Museum Way is not a relatively short-term street closure. Indeed,
the City does not argue otherwise. Because the City authorized a prolonged
closure of a public street to vehicle traffic—not a temporary closure—it
Nonetheless, the Committee has requested judicial notice of several
documents relating to the legislative history of the bill. We grant the request
for the following documents: (1) different versions of the bill as it made its
way through the Legislature; (2) the procedural history of the bill from the
Assembly Final History; (3) excerpts from the Legislative Digest; (4) excerpts
from the Senate and Assembly Journals; and (5) the Enrolled Bill Report.
(Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005)
133 Cal.App.4th 26, 31–35 (Kaufman).) We deny the request for the
following documents: (1) a post-enrollment letter from the bill’s author to the
Governor, as there is no indication the letter was sent to other legislators;
(2) post-enrollment letters from interested parties to the Governor urging him
to sign the bill; (3) a biography of the bill’s author; and (4) a newspaper
article discussing the signing of the bill. (Id. at pp. 37–38.)
Additionally, the Committee requested judicial notice of documents
relating to the legislative history of the 1998 bill that amended Vehicle Code
section 21101, subdivision (e), to ensure a single public officer or employee
may determine a temporary street closure is necessary (Sen. Bill No. 1649
(1997–1998 Reg. Sess.) § 24). This legislative history is similarly ambiguous
and unhelpful in discerning legislative intent. Still, we grant the request for
the following documents pertaining to this bill: (1) the chaptered bill; (2) a
bill report from the Assembly Committee on Local Government; (3) a staff
memorandum from the Senate Committee on Land Use; (4) a resolution from
the Kern County Board of Supervisors proposing the bill; and (5) the Enrolled
Bill Report. (Kaufman, supra, 133 Cal.App.4th at pp. 32–33, 37.)
20
exceeded its authority under state and local law. Therefore, the trial court
erred insofar as it sustained the demurrer to the Vehicle Code cause of action
(claim 1) and the Palm Springs Municipal Code cause of action (claim 3).
C. The Trial Court Erred in Sustaining the Demurrer to the CEQA Cause
of Action
The Committee alleged the City violated CEQA by approving the
closure of Museum Way to vehicular traffic, and the installation of Forever
Marilyn, without conducting an environmental review for the project.
According to the Committee, the project warranted such review because it
could have adverse environmental impacts on traffic, aesthetics, and
historical resources. The Committee alleged the City erred in finding the
project was categorically exempt from environmental review under the
existing facilities exemption because the project would significantly change
the use of Museum Way and it would have significant effects on the
environment due to unusual circumstances (Guidelines, § 15300.2, subd. (c)).
The City argues, as it did in the trial court, that the CEQA cause of
action is time-barred. The City claims its filing of a notice of exemption
triggered a shortened 35-day statute of limitations (see Pub. Resources Code,
§ 21167, subd. (d)), and the CEQA cause of action is untimely because it was
filed after the 35-day statute of limitations period expired.
In response to this argument, the Committee contends the filing of the
notice of exemption did not trigger a 35-day statute of limitations because,
among other reasons, the project materially changed after the City filed its
notice of exemption. It asserts the project changed significantly because the
notice of exemption originally contemplated a street vacation for Museum
Way, but the City subsequently abandoned that plan and instead closed the
street pursuant to Vehicle Code section 21101, subdivision (e). Due to the
21
change, the Committee maintains that its CEQA cause of action was subject
to a 180-day statute of limitations, which it satisfied. Accepting the
allegations of the operative petition for writ of administrative mandate as
true, we agree with the Committee.
1. Statutory Framework
“CEQA and its implementing regulations ‘embody California’s strong
public policy of protecting the environment.’ [Citation.] ‘ “The basic purposes
of CEQA are to: [¶] (1) Inform governmental decision makers and the public
about the potential, significant environmental effects of proposed activities.
[¶] (2) Identify ways that environmental damage can be avoided or
significantly reduced. [¶] (3) Prevent significant, avoidable damage to the
environment by requiring changes in projects through the use of alternatives
or mitigation measures when the governmental agency finds the changes to
be feasible. [¶] [and] (4) Disclose to the public the reasons why a
governmental agency approved the project in the manner the agency chose if
significant environmental effects are involved.” ’ ” (Bottini v. City of San
Diego (2018) 27 Cal.App.5th 281, 291 (Bottini).)
In furtherance of these goals, CEQA establishes a multi-tier process of
environmental review. “The first step is jurisdictional and requires a public
agency to determine whether a proposed activity is a ‘project.’ ” (Bottini,
supra, 27 Cal.App.5th at p. 291.) Under CEQA, a “ ‘[p]roject’ means an
activity which may cause either a direct physical change in the environment,
or a reasonably foreseeable indirect physical change in the environment, and
which is any of the following: [¶] (a) An activity directly undertaken by any
public agency. [¶] (b) An activity undertaken by a person which is supported,
in whole or in part, through contracts, grants, subsidies, loans, or other forms
of assistance from one or more public agencies. [¶] (c) An activity that
22
involves the issuance to a person of a lease, permit, license, certificate, or
other entitlement for use by one or more public agencies.” (Pub. Resources
Code, § 21065.) “The term ‘project’ refers to the activity which is being
approved and which may be subject to several discretionary approvals by
governmental agencies. The term ‘project’ does not mean each separate
governmental approval.” (Guidelines, § 15378, subd. (c).)
At the next step, “the agency must ‘decide whether the project is
exempt from the CEQA review process under either a statutory exemption
[citation] or a categorical exemption set forth in the CEQA Guidelines
[citations].’ ” (Bottini, supra, 27 Cal.App.5th at p. 292.) “ ‘A categorical
exemption is based on a finding by the Resources Agency that a class or
category of projects does not have a significant effect on the environment.’ ”
(McCann v. City of San Diego (2021) 70 Cal.App.5th 51, 74.) The categorical
exemption of relevance in the present case is the Class 1 exemption for
existing facilities, which applies to “the operation, repair, maintenance,
permitting, leasing, licensing, or minor alteration of existing public or private
structures, facilities, mechanical equipment, or topographical features,
involving negligible or no expansion of existing or former use.” (Guidelines,
§ 15301.)
“If a public agency properly finds that a project is exempt from CEQA,
no further environmental review is necessary.” (Muzzy Ranch Co. v. Solano
County Airport Land Use Com. (2007) 41 Cal.4th 372, 380; see Tomlinson v.
County of Alameda (2012) 54 Cal.4th 281, 286 [“A categorically exempt
project is not subject to CEQA, and no further environmental review is
required.”].) “Environmental review is required under CEQA only if a public
agency concludes that a proposed activity is a project and does not qualify for
23
an exemption.” (Union of Medical Marijuana Patients, Inc. v. City of San
Diego (2019) 7 Cal.5th 1171, 1186.)
If a public agency decides a project is CEQA-exempt, it may file—but is
not required to file—a notice of exemption. Any notice of exemption that is
filed must be filed after the project approval, and it must include a brief
description of the project, a finding the project is exempt from CEQA, and a
brief statement of reasons to support the exemption finding, among other
information. (Pub. Resources Code, §§ 21108, subd. (b), 21152, subd. (b);
Guidelines, § 15062, subd. (a).) The notice of exemption “shall be available
for public inspection” and, when the notice is filed by a local agency (as
opposed to a state agency), it “shall be posted within 24 hours of receipt in the
office or on the internet website of the county clerk.” (Pub. Resources Code,
§§ 21108, subd. (c), 21152, subd. (c); Guidelines, § 15062, subd. (c)(1)–(3).)
If the public agency does not file a notice of exemption, or if it files an
invalid or premature notice of exemption, any legal challenge to the
exemption finding must be filed within 180 days of project approval or, if
there is no formal project approval, within 180 days from the date of
commencement of the project. (Pub. Resources Code, § 21167, subd. (d);
Guidelines, §§ 15062, subd. (d), 15112, subd. (c)(5).) If a valid notice of
exemption is filed, the filing of the notice of exemption triggers the running of
a shortened 35-day statute of limitations period for the filing of any legal
challenge to the exemption finding. (Pub. Resources Code, § 21167, subd. (d);
Guidelines, §§ 15062, subd. (d), 15112, subd. (c)(2).) “However, if substantial
changes are made to the ‘project’ after the NOE [notice of exemption] filing or
approval by the agency, a ‘new’ 180–day period may begin to run from the
time a plaintiff knew or should have known the project substantially differed
24
from the original ‘project.’ ” (City of Chula Vista v. County of San Diego
(1994) 23 Cal.App.4th 1713, 1720, italics added.)
As the Guidelines themselves recognize, “CEQA provides unusually
short statutes of limitations on filing court challenges to the approval of
projects under the act.” (Guidelines, § 15112, subd. (a).) These CEQA
statutes of limitations, like statutes of limitations generally, serve “to prevent
stale claims, give stability to transactions, protect settled expectations,
promote diligence, encourage the prompt enforcement of substantive law, and
reduce the volume of litigation.” (Stockton Citizens for Sensible Planning v.
City of Stockton (2010) 48 Cal.4th 481, 499 (Stockton Citizens).)
Because the 35-day statute of limitations period begins running from
the proper filing of a valid notice of exemption, “CEQA establishes and
emphasizes public notification of an agency’s action or decision as the event
triggering the shortest applicable limitations periods for lawsuits alleging
noncompliance with the statute.” (Stockton Citizens, supra, 48 Cal.4th at
p. 501, italics omitted.) “The reasons for this approach are clear. Public
notification serves the public’s right, under CEQA, to be informed of, and to
have a voice in, the process of evaluating the environmental issues
surrounding a contemplated action or decision.” (Id. at p. 502.)
2. The CEQA Cause of Action is Timely
On November 12, 2020, the City Council authorized City officials to
execute a lease with PS Resorts to install Forever Marilyn on Museum Way,
and to “proceed with the process of vacating the public’s vehicular access
rights ….” On December 29, 2020, the City filed its notice of exemption,
which described the project as, “the placement of the ‘Forever Marilyn’
statue, which is a 26-foot tall sculpture, within an existing street, which
requires the City to enter into a License Agreement with P.S. Resorts to
25
authorize the placement [sic] the statue and vacate the public’s vehicular
access rights on a portion of Museum Way.” (Italics added.) But the City
elected not to proceed with a vacation process. Rather, on March 22, 2021,
the City’s Development Services Director authorized the temporary closure of
Museum Way to vehicular traffic. On April 22, 2021, The Committee filed
the operative petition containing the CEQA cause of action.
The question we must decide is whether the notice of exemption
triggered a shortened 35-day statute of limitations, given that the City
subsequently chose not to vacate the public’s vehicular access rights to the
street, and instead decided to close the street to vehicles on a temporary
basis. Relying on the principles discussed in Concerned Citizens of Costa
Mesa, Inc. v. 32nd District Agricultural Association (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), the
Committee argues the change to the project—implemented after the posting
of the notice of exemption—was a substantial change that frustrated CEQA’s
goal of informed public participation. We agree with the Committee.
In Concerned Citizens of Costa Mesa, a public agency charged with the
construction, maintenance, and operation of the Orange County Fairgrounds
prepared an environmental impact report (EIR) to improve and upgrade the
fairgrounds, including an amphitheater within the fairgrounds. (Concerned
Citizens of Costa Mesa, supra, 42 Cal.3d at p. 933.) The EIR stated the
theater would have 5,000 fixed seats, situated on six acres of land, and its
stage would face away from residential areas. (Ibid.) Thereafter, the agency
reportedly gave authority to the amphitheater builder to make changes to the
project, including by increasing the number of fixed seats to 7,000, increasing
the site size to ten acres, and facing the stage towards residential areas. (Id.
26
at pp. 933–934.) After construction was completed, a citizens’ group
purportedly learned of the changes, and then filed suit against the agency
and the builder for failing to prepare a subsequent or supplemental EIR for
the project. (Ibid.) The defendants demurred to the complaint, arguing it
was time-barred because the plaintiffs did not file suit within 180 days after
construction began, which was the latest date to file a legal challenge alleging
non-compliance with CEQA (see Pub. Resources Code, § 21167, subd. (a)).
(Concerned Citizens of Costa Mesa, at p. 934.)
The statute of limitations, applied literally, would have rendered the
action time-barred. However, the Supreme Court—accepting the allegations
of the complaint as true—determined it was timely. (Concerned Citizens of
Costa Mesa, supra, 42 Cal.3d at pp. 937–940.) As the Supreme Court
explained, the plaintiffs alleged “they did not know of the changes made in
the project … and could not with reasonable diligence have discovered them,
within 180 days from the time construction of the theater commenced
because the district did not make the changes public ….” (Concerned Citizens
of Costa Mesa, at p. 937.) The substantial project changes, and the lack of
notice about those changes, “deprived plaintiffs and the public of the
opportunity to participate in the evaluation of the environmental effects of
the project as finally approved.” (Id. at p. 938.) The Supreme Court
cautioned that an agency’s failure to comply with CEQA may not simply “be
challenged at any time without limitation.” (Id. at p. 939.) But where an
agency prepares an EIR, makes substantial changes to the project, and fails
to give notice about the changes, “an action challenging the agency’s
noncompliance with CEQA may be filed within 180 days of the time the
plaintiff knew or reasonably should have known that the project under way
differs substantially from the one described in the EIR.” (Ibid.)
27
At issue in Ventura Foothill Neighbors was the Ventura County Board
of Supervisors’ decision to construct a five-story ambulatory care clinic. In
1993, the board prepared and certified an EIR stating the building would
have a maximum height of 75 feet. (Ventura Foothill Neighbors, supra, 232
Cal.App.4th at pp. 431–432.) In 2005, after years of delay, the board decided
to relocate the building 200 feet north and 160 feet west, and to increase the
building height to 90 feet. (Ibid.) It prepared an addendum to the EIR,
which discussed the relocated site, but did not mention the height change.
(Ibid.) It also filed a notice of determination that discussed the relocation,
but not the height change. (Ibid.) Once construction finally got underway in
2008, a neighbor learned of the height change and, soon after, a citizens’
group filed suit against the board and other public entities seeking to set
aside the board’s approval of the relocated building. (Id. at pp. 432–433.)
The trial court granted a peremptory writ of mandate. (Id. at p. 433.)
On appeal, the board and its codefendants argued the action was
untimely because the filing of the notice of determination in 2005 purportedly
triggered a 30-day statute of limitations (Pub. Resources Code, § 21167,
subd. (e)), and the citizens’ group did not bring suit until 2008. (Ventura
Foothill Neighbors, supra, 232 Cal.App.4th at p. 436.) Relying on Concerned
Citizens of Costa Mesa, the Court of Appeal rejected this argument. It
reasoned the “30-day statute of limitations [was] inapplicable because [the]
[c]ounty did not provide notice to the public of the increase in the Clinic’s
height” in the notice of determination or the EIR addendum. (Ventura
Foothill Neighbors, at p. 436.) Given the lack of notice about the changed
building height, a 180-day statute of limitations applied and began running
from the date the group’s members were informed about the height change.
28
(Ibid.) Because the citizens’ group filed its action within the 180-day statute
of limitations period, the lawsuit was timely. (Id. at p. 437.)
The principles discussed in Concerned Citizens of Costa Mesa and
Ventura Foothill Neighbors are controlling here. The City’s notice of
exemption stated the project would “vacate the public’s vehicular access
rights” on Museum Way. “ ‘Vacation’ means the complete or partial
abandonment or termination of the public right to use a street, highway, or
public service easement.” (Sts. & Hy. Code, § 8309; see id., § 8350 [except as
otherwise provided, “the vacation of a street, highway, or public service
easement extinguishes all public easements therein”].) When a city vacates a
street, “ ‘the beneficial use or title to the land abandoned may, and usually
does, revert to private parties.’ ” (Kinney v. Overton (2007) 153 Cal.App.4th
482, 495.) This stands in contrast to a temporary street closure, where the
public regains its right to use the street when the closure expires. Thus, the
project implemented by the City—a temporary street closure—clearly
differed from the vacation contemplated by the notice of exemption.
The City contends it did not significantly change the project after it
filed the notice of exemption because the notice of exemption advised the
public vehicular access to Museum Way would be restricted and, according to
the City, one kind of vehicular access restriction is the same as any other
kind of vehicular access restriction. This argument is unconvincing. The
types of vehicular access restrictions implicated here are materially different
from one another in duration and surely could have significantly different
environmental impacts. As noted, vacation results in the abandonment or
termination of the public’s right to use a road, which does not result from a
temporary street closure. Thus, the public’s long-term right to use the road,
29
and the environmental impacts from such use, may differ depending on which
mechanism is used to restrict the public’s vehicular access to the road.
The City also asserts it should be entitled to invoke the 35-day statute
of limitations—even if it did change the project—because the environmental
impacts from the revised project likely will be less than the environmental
impacts that would have resulted from the vacation project discussed in the
notice of exemption. This argument misses the mark as well. The reason we
do not enforce a truncated statute of limitations when a public agency
materially changes a project, and then fails to notify the public about the
change, is that it “effectively deprive[s] the public of any meaningful
assessment of the actual project chosen by the agency.” (Concerned Citizens
of Costa Mesa, supra, 42 Cal.3d at p. 938.) This, in turn, “compromise[s] the
goal of public participation in the environmental review process.” (Ibid.;
Guidelines, § 15201 [“Public participation is an essential part of the CEQA
process.”].) Irrespective of whether the City believes the project it pursued
will be less impactful to the environment than the one described in the notice
of exemption, the City’s failure to notify the public about the change
effectively deprived the public of the chance to evaluate the changed project
for itself and to make its own decisions as to whether to challenge the project.
Moreover, we can envision scenarios in which the project description in
the notice of exemption (street vacation) could have induced members of the
public to refrain from filing an expeditious legal challenge to the project—
oblivious to the fact that vacation was not the project the City was actually
pursuing. A street may only be vacated if the legislative body of a local
agency finds, based on evidence submitted at a hearing, that the street in
question “is unnecessary for present or prospective public use ….” (Sts. &
Hy. Code, § 8324, subd. (b).) A member of the public might sensibly decline
30
to pursue a costly and time-consuming legal challenge if he or she does not
think the legislative body of the local agency will be able to make the findings
necessary to vacate the street. Indeed, in this very case, the City ultimately
declined to pursue vacation because, according to the City Attorney, the City
did not believe it could make the showing necessary for vacation.
Under these circumstances, the material change to the project, made by
the City after it filed its notice of exemption, precluded application of the 35-
day statute of limitations set forth in Public Resources Code section 21167,
subdivision (d). Rather, the applicable statute of limitations was 180 days,
measured from the date the Committee knew or reasonably should have
known the project substantially differed from the one described in the notice
of exemption. (Concerned Citizens of Costa Mesa, supra, 42 Cal.3d at p. 939.)
The Committee asserts that date was March 22, 2021, when the City’s
Development Services Director authorized the temporary closure of Museum
Way. We believe the correct date is a month earlier, on February 24, 2021.
On that date, the City Attorney sent a letter to the Committee stating the
City planned to temporarily restrict vehicular access to Museum Way, rather
than vacating the street. Regardless, the CEQA cause of action (claim 6) was
timely, as it was filed within 180 days of both of these dates.7
7 Because the City changed the project after it filed the notice of
exemption, it is unnecessary for us to address the Committee’s alternative
timeliness arguments. Those arguments include claims that: (1) the City
Council did not commit the City to a definite course of action, and thus did
not approve the project (Guidelines, § 15352, subd. (a)), when it authorized
the City Engineer “to proceed with the process of vacating the public’s
vehicular access rights” on Museum Way; (2) the notice of exemption was
facially invalid, and thus did not trigger the 35-day statute of limitations,
because it did not include a sufficiently-detailed statement of reasons
supporting the exemption finding; and (3) the City is collaterally estopped
from asserting a statute of limitations defense.
31
D. The Trial Court Properly Sustained the Demurrer to the Streets and
Highway Code Cause of Action
The operative petition for writ of administrative mandate alleged the
City violated various provisions of the Streets and Highway Code governing
street vacation. The City demurred, arguing the statutory provisions
concerning street vacation were applicable because the City did not
ultimately seek to vacate the public’s vehicular access rights to Museum
Way. The trial court sustained the demurrer to the Streets and Highway
Code cause of action without leave to amend.
The Committee does not address its Streets and Highway Code cause of
action, or the demurrer ruling pertaining to that cause of action, in its
opening brief. We construe the Committee’s failure to discuss the Streets and
Highway Code cause of action as an abandonment of the claim. (See Alborzi
v. Univ. of Southern California (2020) 55 Cal.App.5th 155, 184 [“[W]here a
demurrer is sustained without leave to amend, the appellant’s failure to
address certain causes of action in the complaint is deemed an abandonment
of those causes of action.”]; Ram v. OneWest Bank, FSB (2015) 234
Cal.App.4th 1, 9, fn. 2 [on appeal from a judgment after an order sustaining a
demurrer, unaddressed causes of action are abandoned].) Thus, we affirm
the demurrer ruling as to the Streets and Highway Code cause of action
(claim 2).8
8 In its reply brief, the Committee argues, with scant analysis and no
citation to relevant legal authorities, that it adequately alleged that the City
violated the Streets and Highway Code. We do not consider arguments
raised for the first time in a reply brief. (See Crawley v. Alameda County
Waste Management Authority (2015) 243 Cal.App.4th 396, 403, fn. 4; Ko v.
Maxim Healthcare Servs., Inc. (2020) 58 Cal.App.5th 1144, 1147, fn. 3.)
32
IV
DISPOSITION
The judgment of dismissal is reversed and the matter is remanded to
the trial court with instructions: (1) to vacate its order sustaining the entire
demurrer without leave to amend; and (2) to enter a new order overruling the
demurrer as to the first, third, and sixth causes of action, and sustaining the
demurrer without leave to amend as to the second cause of action. The
Committee to Relocate Marilyn is entitled to its costs on appeal.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
DO, J.
33
Figure 1: Forever Marilyn
34