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Filed 11/22/22 Save the Capitol, Save the Trees v. Dept. of General Services CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

SAVE THE CAPITOL, SAVE THE TREES,

Plaintiff and Appellant,

v.

DEPARTMENT OF GENERAL SERVICES,

Defendant and Respondent;

JOINT COMMITTEE ON RULES OF THE 

CALIFORNIA STATE SENATE AND ASSEMBLY 

et al.,

Real Parties in Interest and 

Respondents.

C095317

(Super. Ct. No. 

34202180003674CUWMGDS)

SUMMARY OF THE APPEAL

Appellant Save the Capitol, Save the Trees (STC) filed a petition for writ of 

mandate alleging that respondents the Joint Committee on Rules of the California State 
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Senate and Assembly (Joint Rules Committee) and the Department of General Service 

(DGS, with the Joint Rules Committee, the State parties) violated requirements of the 

California Environmental Quality Act (Pub. Resources Code, § 21000, et seq.; statutory 

section citations that follow are found in the Public Resources Code unless otherwise 

stated) (CEQA) when they entered into a memorandum of understanding (MOU) along 

with the Department of Finance (Finance) governing their joint relationship in overseeing 

the State Capitol Annex Project (Annex Project) without first engaging in a public CEQA 

review process and preparing an environmental impact report (EIR). The trial court 

granted the State parties’ demurrer to the petition without leave to amend on the grounds 

that STC filed its petition after the 180 day filing period set forth in section 21167, 

subdivision (a) had passed. STC now appeals. We affirm the judgment. 

FACTS AND HISTORY OF THE PROCEEDINGS

The following summary is taken from the petition or consists of information of 

which this court may take judicial notice. (See Save Lafayette Trees v. East Bay 

Regional Park Dist. (2021) 66 Cal.App.5th 21, 29 [“On review of the order sustaining 

demurrers, we accept as true all properly pleaded material factual allegations and all 

materials subject to judicial notice”] (Save Lafayette Trees).)

“The State Capitol Building Annex is the annex to the historic State Capitol, 

constructed to the east of the original building . . . .” (Gov. Code, § 9105.) The existing

annex was constructed between 1949 and 1951. Surrounding the Capitol and its annex is 

Capitol Park, which contains various monuments, memorials, walkways, and ornamental 

trees. The Capitol complex, consisting of the Capitol, its annex, and surrounding park, is 

a CEQA historic resource and is listed on the National Register of Historic Places. 

In 2016, the Legislature enacted the State Capitol Building Annex Act of 2016 

(Act), as set forth in Government Code sections 9112-9114.5. (Stats. 2016, ch. 31, § 65, 

amended by Stats. 2018, ch. 40, and further amended by Stats. 2022, ch. 48; § 18, et seq.) 
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The Act was passed to address various structural and operational deficiencies DGS had 

identified with the annex. 

Under the Act, the Joint Rules Committee “may pursue the construction of a state 

capitol building annex or the restoration, rehabilitation, renovation, or reconstruction of 

the [existing] State Capitol Building Annex . . . and any other ancillary improvements.” 

(Gov. Code, § 9112, subd. (a)(1).) Authorized projects, “may include a visitor center, a 

relocated and expanded underground parking facility, and any related or necessary 

deconstruction and infrastructure work.” (Gov. Code, § 9112, subd. (a)(2).)

“All work performed pursuant to [the Act] shall be executed and managed by the 

Joint Rules Committee . . . . The Department of General Services shall provide counsel 

and advice to the Joint Rules Committee for purposes of the work. The work shall be 

undertaken pursuant to an agreement between the Joint Rules Committee, the Department 

of Finance or its designated representative, and the Department of General Services or its 

designated representative.” (Gov. Code, § 9112, subd. (b)(1).) The agreement “shall 

establish the scope, budget, delivery method, and schedule for any work undertaken 

pursuant to [the Act].” (Gov. Code, § 9112, subd. (b)(2).)

Work approved or undertaken under the Act must comply with CEQA’s 

requirements. (See Gov. Code, § 9112, subds. (c) & (d)(1).)

On November 9, 2018, the Joint Rules Committee, DGS, and Finance entered into 

the MOU to “pursue the construction of a new, restored, rehabilitated, renovated, or 

reconstructed capitol building annex and associated projects (‘Annex Projects’).” The 

trial court granted the State parties’ unopposed request for judicial notice of the MOU. 

The MOU specifies that DGS shall serve as the lead agency for the purposes of 

CEQA. In Attachment A, item 2.a., of the MOU, the scope of the project is described as 

consisting “of the design and construction, including any related studies, of a new, 

approximately 500,000 gross square foot State Capitol Building Annex. ¶ The Capitol 

Annex Project includes the upgrade or replacement of existing site infrastructure, 
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alterations to Capitol Park where necessary, alterations and improvements to the West 

Wing of the State Capitol where necessary, demolition of the current Annex and 

associated parking structure, and any other necessary ancillary improvements to construct 

a working Annex.” The MOU contains a confidentiality clause that requires the parties 

to keep confidential “financial, statistical, personal, technical, and other data and 

information relating to the operations of each Party.” The State entities adopted the 

MOU without first engaging in a public CEQA review process—i.e., without preparing 

an EIR and seeking public comment in formulating the scope of and in drafting the same.

After the State parties entered the MOU, on April 11, 2019, DGS issued a Notice 

of Preparation (NOP) to “Responsible Agencies, Interested Parties, and Organizations” 

stating its intention to prepare an EIR for the proposed annex project. The trial court 

granted the State parties’ unopposed request for judicial notice of the NOP.

The project description stated the project would involve the demolition and 

reconstruction of the existing annex, construction of a new underground visitors’ center, 

and replacement of existing annex basement parking with underground parking on the 

building’s south side. The NOP set a 32-day period for public review and comment of 

the NOP, and invited agencies and individuals to participate in a scoping meeting on 

May 7, 2019. 

In September 2019, DGS posted a draft EIR for the annex demolition project on 

its website. This was followed by a 45-day public comment period, and then the 

circulation of another draft in January 2020 with an attendant comment period. At the 

time STC filed its petition, DGS continued to make modifications to the project 

description. 

In April 2021, DGS provided a copy of the MOU to an entity in response to a 

Public Records Act (Gov. Code, § 6250, et seq.). STC obtained a copy of the MOU and 

this was the first time STC learned about what it characterizes as the “pre-commitment 
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approval via the MOU” to proceed with demolition—as opposed to rehabilitation and/or 

renovation—of the existing annex. 

STC filed its petition on July 9, 2021. STC alleges the MOU pre-committed the 

State parties to demolishing the existing annex and Capitol Park arboretum and to 

building a new annex, even though the Act allows them to accomplish the goal of fixing 

structural and operational deficits with the current annex through other means that do not 

require demolition, such as restoration, rehabilitation, or renovation. 

STC argues that this alleged pre-commitment required the State parties to engage 

in a public review process under CEQA. Because the State parties entered the MOU 

without a public CEQA review process, including the preparation of an EIR that would 

address the “legislatively-mandated” alternatives, STC argues that the State parties 

violated CEQA. 

By this proceeding, STC seeks a writ that would require the State entities to set 

aside the MOU and all subsequent approval actions relating to the Annex Project, and to 

remove any statements reflecting an alleged “pre-commitment” in the later-prepared 

project EIR, effectively undoing any decisions or work that flowed from the time of the 

entry of the MOU. 

DISCUSSION

I

Standard of Review

“A demurrer tests the legal sufficiency of factual allegations in a complaint.” 

(Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 42.) The 

standard of review on appeal from a dismissal after an order sustaining a demurrer is well 

established. “[W]e review the order de novo, exercising our independent judgment about 

whether the complaint states a cause of action as a matter of law. [Citations.]” (Lazar v. 

Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We give the complaint a reasonable 
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interpretation, and treat the demurrer as admitting all material facts properly pleaded. 

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We do not, however, assume the truth of 

contentions, deductions, or conclusions of fact or law. [Citation.]” (Moore v. Regents of 

University of California (1990) 51 Cal.3d 120, 125.) Legal questions that arise at the 

pleading stage include the interpretation of a statute or the application of a statutory 

provision to facts assumed to be true for purposes of the demurrer. (Walker v. Allstate 

Indemnity Co. (2000) 77 Cal.App.4th 750, 754.)

“In ruling on a demurrer, a court may consider facts of which it has taken judicial 

notice. (Code Civ. Proc., § 430.30, subd. (a).) This includes the existence of a 

document. When judicial notice is taken of a document, however, the truthfulness and 

proper interpretation of the document are disputable.” (StorMedia Inc. v. Superior Court

(1999) 20 Cal.4th 449, 456, fn. 9.) “[W]e disregard . . . allegations contrary to those 

judicially noticed facts.” (May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1329

(May).)

“ ‘ “The defense of statute of limitations may be asserted by general demurrer if 

the complaint shows on its face that the statute bars the action.” [Citations.]’ (E-Fab, 

Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315 []; accord, Lee v. 

Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 

854 [] [‘ “A general demurrer based on the statute of limitations is only permissible 

where the dates alleged in the complaint show that the action is barred by the statute of 

limitations” ’].) ‘ “The ultimate question for review is whether the complaint showed on 

its face that the action was barred by a statute of limitations, for only then may a general 

demurrer be sustained and a judgment of dismissal be entered thereon.” [Citation.]’ (EFab, Inc. v. Accountants, Inc. Services, supra, at p. 1316.)” (Van de Kamps Coalition v. 

Board of Trustees of Los Angeles Community College Dist. (2012) 206 Cal.App.4th 1036, 

1044 (Van de Kamps).) “ ‘A statute of limitations “ ‘necessarily fix[es]’ a ‘definite 

period[] of time’ [citation], and hence operates conclusively across-the-board. It does so 
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with respect to all causes of action, both those that do not have merit and also those that 

do.” ’ ” (Citizens for a Green San Mateo v. San Mateo County Community College Dist.

(2014) 226 Cal.App.4th 1572, 1588, quoting Stockton Citizens for Sensible Planning v. 

City of Stockton (2010) 48 Cal.4th 481, 499.)

II

CEQA Overview

The California Legislature has declared that, in general, it is the policy of the state 

to, “[t]ake all action necessary to provide the people of this state with clean air and water, 

[and] enjoyment of aesthetic, natural, scenic, and historic environmental qualities . . . .[; 

and to] [¶ . . . ¶] [p]reserve for future generations representations of all plant and animal 

communities and examples of the major periods of California history.” (§ 21001, 

subds. (b)-(c).)

In keeping with this recognition, the Legislature has also declared, “that it is the 

policy of the state that public agencies should not approve projects as proposed if there 

are feasible alternatives or feasible mitigation measures available which would 

substantially lessen the significant environmental effects of such projects.” (§ 21002.)

CEQA requires “[a]ll lead agencies [to] prepare, or cause to be prepared by 

contract, and [to] certify the completion of, an environmental impact report on any 

project which they propose to carry out or approve that may have a significant effect on 

the environment.” (§ 21100, subd. (a).) For purposes of CEQA, the definition of 

“project” includes an activity undertaken by a public agency “which may cause either a 

direct physical change in the environment, or a reasonably foreseeable indirect physical 

change in the environment.” (§ 21065.) “ ‘ “Significant effect on the environment”

means a substantial, or potentially substantial, adverse change in the environment.’ 

([Pub. Resources Code, ]§ 21068; see CEQA Guidelines, § 15382.)” (May, supra,

217 Cal.App.4th at p. 1320.) “The purpose of an environmental impact report is to 
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provide public agencies and the public in general with detailed information about the 

effect which a proposed project is likely to have on the environment; to list ways in 

which the significant effects of such a project might be minimized; and to indicate 

alternatives to such a project.” (§ 21061.)

We note that California’s CEQA regulations are contained in title 14 of the 

California Code of Regulations, section 15000 et seq. In some of the cases quoted herein 

the applicable sections are cited as “CEQA Guidelines” and in others they are cited as 

“Guidelines.”

“CEQA lays out a three-stage process” for determining whether an EIR is required 

and for preparing one if it is required. (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 

1359, 1371 (Gentry).) “First, the agency must determine whether the particular activity is 

covered by CEQA. (Guidelines, § 15002, subd. (k)(1).) CEQA applies to any activity 

which is a ‘project,’ and which is not exempt.” (Gentry, at p. 1371.) “Second, the 

agency must determine whether the project may have significant environmental effects. 

(Guidelines, § 15002, subd. (k)(2).)” (Gentry, at p. 1372.) Third, “[i]f the administrative 

record before the agency contains substantial evidence that the project may have a 

significant effect on the environment, it cannot adopt a negative declaration; it must go to 

on the third stage of the CEQA process: preparation and certification of an EIR. 

(§ 21100, 21151; Guidelines, § 15002, subd. (k)(3), 15063, subd. (b)(1), 15064, subds. 

(a)(1), (g)(1), 15362.)” (Gentry, at p. 1372.) 

Though, on the one hand “[CEQA] seeks to ensure that public agencies will 

consider the environmental consequences of discretionary projects they propose to carry 

out or approve[, o]n the other hand, the Act is sensitive to the particular need for finality 

and certainty in land use planning decisions. Accordingly, the Act provides ‘unusually 

short’ limitations periods (Cal. Code Regs., tit. 14, §§ 15000 et seq. (CEQA Guidelines), 

15112, subd. (a)) after which persons may no longer mount legal challenges, however 

meritorious, to actions taken under the Act’s auspices. [¶] The shortest of all CEQA 
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statutes of limitations applies to cases in which agencies have given valid public notice, 

under CEQA, of their CEQA-relevant actions or decisions. The filing and posting of such 

a notice alerts the public that any lawsuit to attack the noticed action or decision on 

grounds it did not comply with CEQA must be mounted immediately.” (Stockton 

Citizens for Sensible Planning v. City of Stockton, supra, 48 Cal.4th at p. 488, fn. 

omitted.)

By way of example, section 21167, subdivision (b), provides a 30-day statute of 

limitations to file an action challenging an agency’s determination as to whether a project 

will have a significant environmental effect, and that statute of limitations is triggered 

when the agency files a notice of determination stating the agency has decided to approve 

a project for which it prepared an EIR. (See also § 21108, subd. (a).) The place for filing 

that notice of determination and some of the notice’s contents are dictated by CEQA 

statutes. (See § 21108.)

In contrast, longer 180-day limits are provided when public notice has not been 

provided under a CEQA statute. (See §21167, subds. (a), (d).) For example, as relevant 

here, section 21167, subdivision (a), states that, “[a]n action or proceeding alleging that a 

public agency is carrying out or 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 agency’s decision to carry out or approve the project, or, if a project is 

undertaken without a formal decision by the public agency, within 180 days from the date 

of commencement of the project.” (§ 21167, subd. (a).) 

“While CEQA’s substantive provisions are interpreted broadly to implement the 

legislative intent of strong environmental protection, this ‘does not mean that the same 

standard of liberality should necessarily be applied in interpreting the procedural 

requirements of [CEQA].’ (Board of Supervisors v. Superior Court[ (1994)] 

23 Cal.App.4th [830,] 836.) CEQA ‘contains a number of provisions evidencing the 
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clear “legislative determination that the public interest is not served unless challenges 

under CEQA are filed promptly” . . . .’ ([Id.] at p. 836.) ‘[T]here is legislative concern 

that CEQA challenges, with their obvious potential for financial prejudice and disruption, 

must not be permitted to drag on to the potential serious injury of the real party in 

interest.’ (Id. at p. 837; see San Franciscans for Reasonable Growth v. City and County 

of San Francisco (1987) 189 Cal.App.3d 498, 504 [] [‘the rationale of the statutory 

scheme is to avoid delay and achieve prompt resolution of CEQA claims’].) Where the 

law is clear, the strict CEQA time requirements must be applied as written. (Board of 

Supervisors v. Superior Court, supra, at p. 837.)” (Van de Kamps, supra,

206 Cal.App.4th at p. 1052.)

III

This Action is Barred by Section 21167, Subdivision (a)

Both parties treat the 180-day statute of limitations contained in section 21167, 

subdivision (a), as the applicable statute of limitations in this action. However, they 

disagree as to when the 180-day time period began to run for purposes of calculating 

when this action would become time-barred. The State parties argue that the statute of 

limitations ran 180 days after they entered into the MOU, or, at the latest when DGS 

published notice of preparation of the EIR. In contrast, STC argues that any statute-oflimitations defense the State parties might have invoked was defeated by the lack of 

public notice of the entry of the MOU. We agree with the State parties.

A. The Statute of Limitations Began to Run when the State Parties and

Finance Entered the MOU

According to the petition, the MOU commits the State parties to demolishing the 

existing annex and constructing a new one. The petition also alleges that STC’s counsel 

had informed DGS that “approval of the . . . MOU in conjunction with related actions by 

DGS effected approval of the Annex project.” It also alleges that the MOU was entered 
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into in November 2018. The petition was filed on July 9, 2021, roughly two and one-half 

years after the MOU was entered, well over 180 days after the November 2018 date 

petitioner alleges the MOU committed the parties to demolishing and rebuilding the 

annex. Under CEQA guidelines, “ ‘ “Approval” means the decision by a public agency 

which commits the agency to a definite course of action in regard to a project intended to 

be carried out by any person.’ ” (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 

116, 129, quoting Guidelines, § 15352, subd. (a), italics added.) As the trial court 

concluded, based on the face of the petition, the action is barred by the statute of 

limitations contained in section 21167, subdivision (a), which is “180 days from the date 

of the public agency’s decision to carry out or approve the project.” (Italics omitted.) 

STC argues that, the statute of limitations is only triggered by public notice of 

approval of a project, and that here there was no public notice of approval until 

April 2021, and, thus the earliest date the 180-day statute of limitations could have been 

triggered was in April 2021, making a July 2021 filing timely. 

But, “section 21167 does not establish any special notice requirements for the 

commencement of the 180-day limitations period from project approval. ‘[A]ll that is 

required is that the public agency make a formal decision to “carry out or approve the 

project.” ’ (Citizens for a Green San Mateo v. San Mateo County Community College

Dist.[, supra,] 226 Cal.App.4th [at p.] 1597 [].) ‘[CEQA] Guidelines define “approval” 

as “the decision by a public agency which commits the agency to a definite course of 

action in regard to a 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. . . . .” (Ibid.)’ (County of Amador v. El Dorado County Water Agency

(1999) 76 Cal.App.4th 931, 963 [].)” (Save Lafayette Trees, supra, 66 Cal.App.5th at 

pp. 40-41, fn. omitted.) We will not read section 21167, subdivision (a), to contain a 

requirement that public notice of an approval be provided before the statute of limitations 
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can begin to run. (See Lesher Communications, Inc. v. City of Walnut Creek (1990) 

52 Cal.3d 531, 543 [“the court may not add to the statute or rewrite it to conform to an 

assumed intent that is not apparent in its language”].)

In considering, and ultimately rejecting, STC’s argument, the trial court relied 

heavily on the reasoning applied by our First District Court of Appeal in Communities for 

a Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 

715 (CBE).) We also find CBE informative.

In CBE, an LLC had been operating an ethanol rail-to-truck transloading facility 

since 2009. (CBE, supra,1 Cal.App.5th at p. 719.) In February 2013, the LLC applied to 

the Bay Area Air Quality Management District (BAAQMD) for approval to alter its 

facility to transload Bakken crude oil. (Ibid.) The BAAQMD determined that the project 

was ministerial and not subject to CEQA review, and it issued a permit to the LLC in 

July 2013 without first issuing a notice of exemption that would have served as a public 

announcement of its determination that the project was exempt. (Ibid.) The LLC began 

transloading the crude oil in September 2013. (Ibid.) 

The Communities for a Better Environment and other groups (CBE) filed a 

petition for writ of mandate against the BAAQMD and a complaint for declaratory relief 

and injunction against the LLC and its parent company in March 2014, alleging the 

approval was not ministerial and an EIR was required before the BAAQMD could 

approve the change. (CBE, supra,1 Cal.App.5th at pp. 719-720.) The respondents 

sought to dismiss the action as time-barred under section 21167, subdivision (d), which 

provides that, “[a]n action or proceeding alleging that a public agency has improperly 

determined that a project is not subject to this division” because it is ministerial “shall be 

commenced within 35 days from the date of the filing by the public agency, or person 

specified in subdivision (b) or (c) of Section 21065, of the [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 a 
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project is undertaken without a formal decision by the public agency, within 180 days 

from the date of commencement of the project.” (CBE, supra, 1 Cal.App.5th at p. 720; 

see also, §§ 21167, 21080, subd. (b), 21108, subd. (b).) 

In opposing the motion and challenging the trial court’s dismissal on appeal, CBE 

argued that the trial court ought to have applied the discovery rule to find the statute of 

limitations did not begin to run until January 31, 2014, when one of its members first 

received an email alerting it that the LLC’s facility had begun transloading crude oil. 

(CBE, supra, 1 Cal.App.5th at p. 720.) In so doing, “CBE maintained that it did not 

learn, and could not with reasonable diligence have learned, of the project any earlier, 

because BAAQMD ‘gave the public no notice of [the LLC]’s switch to . . . Bakken crude 

oil’ and ‘[the LLC]’s transloading operation is entirely enclosed, making the transported 

commodity, and any change to it, invisible.’ ” (Ibid., italics added.)

Ultimately, the court of appeal was not persuaded that the statute of limitations 

should be tolled to when CBE first learned of the project. (CBE, supra, 1 Cal.App.5th at 

p. 726.) It reasoned, “[g]iven the important role of public participation in the CEQA 

process (Concerned Citizens[ of Costa Mesa, Inc. v. 32nd District Agricultural 

Association (1986)] 42 Cal.3d [929,] 935-936[ (Concerned Citizens)), we acknowledge 

that if there were any situation in which it would be warranted to delay the triggering of a 

limitations period in the manner CBE urges, it would be one in which no public notice of 

the project was given and the project’s commencement was not readily apparent to the 

public. As the case law establishes, however, we cannot read an exception for such 

circumstances into section 21167(d) without violating ‘the Legislature’s clear 

determination that “ ‘the public interest is not served unless CEQA challenges are 

promptly filed and diligently prosecuted.’ ” ’ (Stockton Citizens for Sensible Planning v. 

City of Stockton, supra, 48 Cal.4th at p. 500.) Ultimately, CBE’s arguments about the 

proper balance between the interests of public participation and of timely litigation are 

better directed to the Legislature, not this court.” (CBE, supra, 1 Cal.App.5th at p. 726.) 
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STC attempts to distinguish CBE on the grounds that the case involved an action 

where the applicable statute of limitations was contained in section 21167, subdivision 

(d), and here we are dealing with an action where the applicable statute of limitations is 

contained in section 21167, subdivision (a). STC argues that subsection (a) applies a 

180-day limit when an agency approves a project without taking any CEQA action, and 

subdivision (d) applies a 35-day limit when an agency files a discretionary notice of 

exemption and a 180-day limit if the agency chooses not to file a notice of exemption. 

STC then quotes from the CBE decision where the court notes the trial court “reasoned 

that the Legislature must have ‘contemplate[d] circumstances where the public wouldn’t 

know’ about the decision to find a project exempt from CEQA, because the filing of an 

NOE is ‘entirely optional’ and section 21167(d) is not limited to situations ‘where one by 

observation [can] tell that the [agency’s] approval has been given’ or that a project has 

commenced. Thus, the court found that CBE could not amend its pleading to avoid the 

statute of limitations by alleging that it was unaware of the project until January 2014.” 

(CBE, supra, 1 Cal.App.5th at pp. 720-721.)

We fail to see how this description of subdivision (d) creates a meaningful 

distinction between the 180-day limit contained in it with the 180-day limit contained in 

subdivision (a). While in subdivision (d) the limit may be contained in a subsection that 

applies a different limit when a notice of exemption under CEQA is given, and in 

subdivision (a) the limit stands alone, in both instances it is equally likely that the 

Legislature contemplated instances in which public notice was not given of project 

approval. Importantly, the language stating the 180-day limit in the two subdivisions is 

identical, with both subdivisions stating actions “shall be commenced within 180 days 

from the date of the public agency’s decision to carry out or approve the project, or, if a 

project is undertaken without a formal decision by the public agency, within 180 days 

from the date of commencement of the project.” (See §21167, subds. (a) & (d).) “When 

the Legislature uses the same language in a related statute, we presume the Legislature 
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intended the language to have the same meaning. (People v. Wells (1996) 12 Cal.4th 

979, 986 [].)” (Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 478.)

STC’s argument ignores that, when viewed as a whole, section 21167 evinces that 

the Legislature considered that a lack of public notice might occur when it set statutes of 

limitations for a range of CEQA challenges, and the longer, 180-day limitation contained 

in subdivisions (a) and (d)—as opposed to the shorter 30- and 35-day limitations 

contained in other subdivisions—takes that possibility into account.

In Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 

48 Cal.4th 32, 47 (Committee for Green Foothills), the court explained that the different 

limits contained in subdivision (d) “indicates that the determinative question, for 

purposes of defining the statute of limitations, is not what type of violation the plaintiff 

has alleged, but whether the action complained of was disclosed in a public notice. When 

an agency gives the public notice of its decision that a project is exempt from CEQA, just 

like a notice of any other determination under CEQA, the public can be expected to act 

promptly in challenging this decision. However, when an agency does not give the 

statutorily required notice, and the public is held to constructive notice based on the start 

of the project, the Legislature has determined that a longer limitations period should 

apply. [¶] The principle illustrated in subdivision (d) is evident in all the other limitation 

periods set forth in section 21167. If a state or local agency has filed an NOD stating 

whether a project will have a significant environmental impact (see §§ 21108, subd. (a), 

21152, subd. (a)), the statute of limitations for all types of CEQA claims related to the 

project is 30 days from the date the notice was filed. The 30-day statute applies to claims 

challenging an agency’s determination about environmental impact (§ 21167, subd. (b)), 

claims challenging the adequacy of an EIR (§ 21167, subd. (c)), and all other claims 

alleging CEQA violations (§ 21167, subd. (e)). If a state or local agency has made no 

environmental impact determination, the statute of limitations is 180 days, measured 

from the date of the agency’s approval or the start of the project. (§ 21167, subd. (a).) In 
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such cases, project approval or initiation is deemed constructive notice for potential 

CEQA Claims.” (Italics removed and added; accord Save Lafayette Trees, supra,

66 Cal.App.5th at p. 40.)

B. The EIR Process Provided Constructive Notice

As an alternative basis for granting the demurrer, the State parties argue that even 

if approval of the MOU did not trigger the statute of limitations, STC had constructive 

notice of the MOU when DGS issued the NOP in April 2019. We agree.

“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 . . . ‘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.’ (Committee for Green

Foothills[, supra,] 48 Cal.4th [at p.] 47 [], italics added []; see Stockton Citizens for 

Sensible Planning v. City of Stockton[, supra,] 48 Cal.4th [at p.] 500 [] [accord].)” (Save 

Lafayette Trees, supra, 66 Cal.App.5th at p. 40.) 

Here, commencement of the work to be performed under the agreement required 

by Government Code section 9112, subdivision (b)—the MOU—became publicly 

apparent when DGS announced its intention to prepare an EIR in April 2019. This 

provided STC with constructive notice that the State parties and Finance had entered into 

the MOU. If we were to calculate the statute of limitations as 180 days from the date 

DGS issued the NOP, the deadline to file this action was October 8, 2019, 22 months 

before STC filed its action.
17

C. Cases Running the Statute of Limitations in Section 21167 from Events

other than the Approval or Commencement of the Project Do Not Require a Different

Result.

STC’s efforts to convince this court that the statute of limitations began to run 

when the MOU was released in response to a Public Records Act request are not 

persuasive.

First, STC states that the Act requires the State parties to comply with CEQA 

before approving a project or otherwise committing to which option it would exercise to 

bring the annex up to date—construction, restoration, rehabilitation, renovation, or 

reconstruction—and this compliance includes the preparation of an EIR. Then, STC 

takes the position that it had no reason to expect, nor was there public notice, that the 

MOU would pre-commit the State parties to destruction of the annex without CEQA 

review. Rather, STC claims that based on the Act, it had expected the required 

agreement between the State parties and Finance to use more general terms to describe 

the Annex project without committing to the form of project. It argues that public notice 

of the alleged violation—i.e., of the alleged deviation from STC’s expectations—was not 

given until the MOU was provided in response to a Public Records Act in April 2021. In 

short, STC takes the position that since it did not expect a pre-commitment in violation of 

CEQA, and the State parties did not make a public statement indicating they made a precommitment when they adopted the MOU, the 180-day statute of limitations contained in 

section 21167, subdivision (a) was not triggered when the MOU was entered into or 

when DGS began the EIR process. 

But section 21167 does not say the statute of limitations is triggered by public 

notice announcing the alleged violation has occurred, it is triggered by approval or 

commencement of a project. Once one of those two events takes place, a potential 

claimant has “constructive notice for potential CEQA claims,” and the 180-day 
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limitations period is triggered. (Committee for Green Foothills, supra, 48 Cal.4th at 

p. 47, italics added; accord Save Lafayette Trees, supra, 66 Cal.App.5th at p. 41.) The

potential claimant may not avoid the statutory time limitations simply by arguing they did 

not expect a violation to occur and thus did not perform due diligence once constructive 

notice of potential violations existed. To allow this argument to succeed would be in 

contravention of the legislative determination that the public interest is not served unless 

challenges under CEQA are filed promptly. (Van de Kamps, supra, 206 Cal.App.4th at 

p. 1052.)

STC cites Concerned Citizens, supra, 42 Cal.3d 929 and Ventura Foothill 

Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429 (Ventura), to support its 

argument that lack of public notice of the MOU at the time it was approved defeats the 

State parties’ argument that this action was barred by the statute of limitations in section 

21167, subdivision (a). 

In Concerned Citizens, supra, 42 Cal.3d at pages 933-934, petitioners filed an 

action alleging an agricultural district had violated CEQA when it made substantial 

changes to a theater construction project after the EIR for the project was filed and 

without notification to the public or the filing of a subsequent EIR addressing the 

changed plans. Petitioners filed their action just under 180 days from the date the first 

concert was performed at the theater, which was approximately 11 months after 

construction on the theater began, and just under four years after the district had entered 

into a contract for construction of the theater. (Id. at p. 933.) Petitioners alleged they had 

no actual or constructive notice of the changes to construction plans at the time 

construction commenced and could not have learned of them through reasonable 

diligence, because those changes were not made known at a public hearing. (See id. at 

p. 934.) The trial court sustained a demurer to the action on the basis that the action was 

time-barred because it was not filed within 180 days of the commencement of 

construction of the theater, and the petitioners appealed. (Ibid.) Following a loss in the 
19

court of appeal, the petitioners appealed to our Supreme Court and the Supreme Court

reversed. (Id. at p. 940.) 

The Court noted that if it were to apply the literal language of section 21167, 

subdivision (a)—setting the statute of limitations at 180 days from the day construction 

commenced—the action would be time-barred. (Concerned Citizens, supra, 42 Cal.3d at 

p. 937.) But the Court declined to apply the literal language, finding persuasive the 

petitioner’s argument that to apply a literal interpretation of the statute in that case would 

be counter to CEQA’s purpose of protecting the environment by allowing for public 

participation. (See id. at pp. 936 & 937.) 

Is so doing, the court stressed the specific context in which the case arose: “Here, 

plaintiffs allege that the theater project was the subject of an EIR but that the actual 

project built differed substantially from the facility described in the EIR. The lack of 

public notice that the agency had authorized these substantial changes compromised the 

goal of public participation in the environmental review process. In fact, the agency’s 

failure to prepare a supplemental or subsequent EIR effectively deprived the public of 

any meaningful assessment of the actual project chosen by the agency. [Citation.] 

Indeed, the commencement of a project in these circumstances is more misleading than if 

the agency had prepared no EIR, since the public might justifiably but erroneously 

assume that the project being built is the one discussed in the EIR. [Citation.] As a 

result, the public would fail to challenge the agency’s noncompliance with CEQA within 

time limitations measured from commencement of construction.” (Concerned Citizens, 

supra, 42 Cal.3d at p. 938, italics added.)

The court held, “if [an] agency makes substantial changes in a project after the 

filing of the EIR and fails to file a later EIR . . . 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.” (Concerned Citizens, supra, 42 Cal.3d at p. 939.) In so doing, 
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the court observed that, generally, “[b]y providing in section 21167, subdivision (a) that 

the 180-day limitation period begins to run from the time a project is commenced, the 

Legislature determined that the initiation of the project provides constructive notice of a 

possible failure to comply with CEQA.” (Concerned Citizens, at p. 939.)

The facts here differ from the facts in Concerned Citizens in one significant 

regard: while in Concerned Citizens the lack of a subsequent EIR describing changes in 

construction plans from those described in an initial EIR would have logically led 

citizens to assume there would be no significant changes to the original project, here the 

very language STC takes issue within the MOU is plainly in the document. The State 

parties took no action that would mislead the public into believing either (1) that the State 

parties would proceed in a manner that deviated from the terms of their MOU, or (2) that 

the State parties had not entered into an agreement as required under the Act. Thus, there 

is no reason to deviate from the requirements of section 21167, subdivision (a), which is 

based on the Legislature’s general determination that the “initiation of the project 

provides constructive notice of a possible failure to comply with CEQA.” (Concerned 

Citizens, supra, 42 Cal.3d at p. 939.) 

In Ventura, supra, 232 Cal.App.4th at pages 431-432, the Board of Supervisors of 

Ventura County decided to build a clinic. A 1993 EIR for the project said the clinic 

would be up to 75 feet in height. (Id. at p. 432.) In 1994 the board certified the EIR and 

approved the project, but construction for the clinic was delayed until 2005. (Ibid.) The 

board decided to relocate the clinic, and that no subsequent or supplemental EIR was 

needed for the relocation, and instead prepared an addendum to the EIR, and the County 

filed a notice of determination on May 25, 2005, stating the project’s location was 

changed. (Ibid.) In 2007, plans for the clinic were modified to show the building would 

be 90 feet tall, but the Ventura Foothill Neighbors (VFN) were not informed of the height 

change until May 22, 2008, when a local resident saw a rig at the site and went to the 

construction office to ask what they were building. (Id. at pp. 432-433.) VFN filed a 
21

petition for writ of mandate in July 2008, which the trial court granted. (Id. at p. 433.) 

As part of its decision, the trial court ruled the action was not time-barred. (Id. at p. 434.) 

The county appealed. (Id. at p. 431.)

The county argued VFN needed to file their petition 30 days from May 25, 2005, 

based on section 21167, subdivision (e)’s, statute of limitations of 30 days to allege 

noncompliance of CEQA following a government entity’s filing of a notice of 

determination. (Ventura, supra, 232 Cal.App.4th at p. 436.) The court of appeal 

disagreed, reasoning that, because neither the addendum to the EIR nor the notice of 

determination identified the change in the building’s height, the applicable statute of 

limitations was the 180-day limit contained in section 21167, subdivision (a), and that 

had only begun to run when VFN was informed the building was going to be 90 feet 

high, on May 22, 2008. (Ibid.) 

As with Concerned Citizens, the facts here are notably different than the facts in 

Ventura. As with Concerned Citizens, under the facts in Ventura, the public could have 

been misled by existing environmental review documents into believing a planned project 

would be constructed one way, when, in fact, the construction process was proceeding 

with different plans and without changes to the environmental review documents 

reflecting the different plans. In Concerned Citizens and Ventura, the court considered 

the specific facts and “preserved the Legislature’s intent because it interpreted the statute

in such a way that the statutory triggering date never actually transpired.” (CBE, supra,

1 Cal.App.5th at p. 725; accord Save Lafayette Trees, supra, 66 Cal.App.5th at p. 42.) In 

both cases, the agencies made no changes to environmental review documents they had 

prepared as part of CEQA’s mandate to inform the public of the proposed scope of the 

projects. In both cases, constructive notice of a change to the project at issue was not 

provided when construction begun, because when the projects commenced, the public 

could have easily been misled into believing they were commenced in accord with 

previously published environmental review documents. That is not what happened here. 
22

At a minimum, once the EIR process began, STC had constructive notice of the existence 

of the MOU, and thus of a potential CEQA violation in the MOU. 

Defend Our Waterfront v. California State Lands Commission (2015) 

240 Cal.App.4th 570, 584-585 (Defend Our Waterfront) also provides no support for 

STC’s argument that public notice of the contents of the MOU was required to trigger the 

statute of limitations. STC cites Defend Our Waterfront for the proposition that in some 

instances actual notice will not be sufficient to satisfy a statute’s notice requirements. 

The portion of Defend Our Waterfront cited by STC was not concerned with what type of 

notice would trigger the statute of limitations contained in section 21167. (Defend Our 

Waterfront, supra, 240 Cal.App.4th at pp. 584-585.) Instead, the case addressed whether 

notice of a meeting satisfied specific statutory notice requirements when, if those 

requirements were not satisfied, a petitioner bringing a CEQA action could claim an 

exemption from certain exhaustion of administrative remedy requirements. (Defend Our 

Waterfront, supra, 240 Cal.App.4th at pp. 583-585; see also Gov. Code, § 11125, 

subd. (a).) This is very different from the issue here, where STC has not pointed to any 

statutory provisions that provide detailed requirements outlining a specific form of notice 

that would trigger the statute of limitations in section 21167, subdivision (a). 
23

DISPOSITION

We affirm the trial court’s ruling and judgment. Pursuant to California Rules of 

Court, rule 8.278(a)(1), the State parties are awarded their costs on appeal. 

 

HULL, Acting P. J.

We concur:

 

DUARTE, J.

 

BOULWARE EURIE, J.