1

Filed 6/30/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SAVE LAFAYETTE TREES et al., 

Plaintiffs and Appellants, 

v.

EAST BAY REGIONAL PARK 

DISTRICT, 

 Defendant and Respondent;

PACIFIC GAS AND ELECTRIC 

COMPANY, 

Real Party in Interest and 

Respondent.

 A156150

 (Contra Costa County

 Super. Ct. No.

 MSN1701909)

Appellants Save Lafayette Trees, Michael Dawson and David Kosters 

filed an amended petition/complaint seeking to vacate respondent East Bay 

Regional Park District (EBRPD)’s approval of a memorandum of 

understanding with respondent Pacific Gas and Electric Company (PG&E) 

that allows for the removal of 245 trees from EBRPD land. The trial court 

sustained respondents’ demurrers without leave to amend and dismissed the 

lawsuit.
2

We affirm as the first cause of action seeking relief under the California 

Environmental Quality Act (CEQA; Pub. Res. Code, §§ 2100 et seq.1) is timebarred and the non-CEQA causes of actions cannot be amended to allege 

claims for which relief can be granted.

FACTUAL AND PROCEDURAL BACKGROUND

On review of the order sustaining demurrers, we accept as true all 

properly pleaded material factual allegations and all materials subject to 

judicial notice. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.)2

1 All further undesignated statutory section references are to the Public 

Resources Code and the CEQA Guidelines (Cal. Code Regs., tit. 14, §§ 15000 

et seq.) are referred to as “Guidelines section . . . .” “Whether the Guidelines 

are binding regulations is not an issue in this case, and we therefore need not 

and do not decide that question. At a minimum, however, courts . . . afford 

great weight to the Guidelines except when a provision is clearly

unauthorized or erroneous under CEQA.” (Laurel Heights Improvement 

Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.)

2 Our factual and procedural background includes portions of the 

certified public record of the March 17, 2017 proceedings before EBRPD’s 

Board of Directors, of which the trial court took judicial notice. 

On appeal, PG&E has filed a request for judicial notice asking us to 

consider three additional documents directed at addressing certain factual 

assertions made in appellants’ opening brief. We deny PG&E’s request for 

judicial notice as the additional documents are not necessary to resolve this 

appeal. (See Hughes Electronics Corp. v. Citibank Delaware (2004) 120 

Cal.App.4th 251, 266, fn. 13 [“[a]s a general matter, judicial notice is not 

taken of matters irrelevant to the dispositive points on appeal”].)

EBRPD has also filed a request for judicial notice on appeal asking us 

to consider documents submitted for judicial notice in the trial court 

(documents 1 through 11) and one document not presented in the trial court 

(document 12). We grant EBRPD’s request for judicial notice of the 11 

documents submitted in the trial court and which appear in the appellate 

appendices, as well as document 12 (Legislative Counsel’s Digest of Senate 

Bill No. 1298 – 1963 amendment to § 5541). (See Center for Biological 

Diversity, Inc. v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, 1356, fn. 7 

[court took judicial notice of fact of proceedings in administrative record, but 
3

A. Background

On March 21, 2017, following a public hearing, EBRPD’s Board of 

Directors committed to accept PG&E funding for “[e]nvironmental 

[r]estoration and [m]aintenance at Briones Regional Park and LafayetteMoraga Regional Trail.” The staff report prepared in connection with the 

approved funding explained: “PG&E’s Community Pipeline Safety Initiative 

helps to ensure that PG&E pipelines are operating safely by looking at the 

area above and around the natural gas transmission lines to be certain that 

first responders and PG&E emergency response crews have critical access to 

the pipelines in the event of an emergency or natural disaster. As part of this 

initiative, PG&E conducted an in-depth review of trees located up to 14 feet 

from the gas transmission pipeline on District property in Contra Costa 

County. The results of the review were shared with the District and it was 

determined that a total of 245 trees are located too close to the pipeline and 

will be removed for safety reasons. [¶] . . . [¶] In consideration of the trees 

that will be removed for safety reasons, PG&E will provide the District with a 

payment of $1,000 for each tree that is being removed, for a total payment of 

$245,000. PG&E will also provide one replacement tree for each of the 31 

District-owned trees within the City of Lafayette, per the City’s ordinance. 

PG&E will work with the District on appropriate community outreach in 

advance of the planned safety work. In addition, PG&E will provide the 

did not assume the truth of the statements or opinions]; Evans v. City of 

Berkeley (2006) 38 Cal.4th 1, 7, fn. 2 [judicial notice proper for city council 

resolution]; People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, 

1532 [legislative history and “Legislative Counsel’s Digest” are properly the 

subject of judicial notice]; Evid. Code, § 452, subds. (b), (d) [judicial notice 

permissible for “[r]egulations and legislative enactments issued by or under 

the authority of . . . any public entity in the United States,” and for “records 

of any court” of this state].) 
4

District with $10,000 to be used on two years of maintenance related to 

maintaining pipeline safety at Briones Regional Park.”

Following the public hearing on March 21, the Board issued Resolution 

No. 2017-03-065, passed by motion, authorizing the acceptance of “funding 

from PG&E’s Community Pipeline Safety Initiative for Environmental 

Restoration and Maintenance at Briones Regional Park and LafayetteMoraga Regional Trail,” as follows: 

EAST BAY REGIONAL PARK DISTRICT

RESOLUTION NO.: 2017-03-065

March 21, 2017

AUTHORIZATION TO ACCEPT FUNDING FROM PG&E’S COMMUNITY 

PIPELINE SAFETY INITIATIVE FOR ENVIRONMENTAL RESTORATION 

AND MAINTENANCE AT BRIONES REGIONAL PARK AND LAFAYETTEMORAGA REGIONAL TRAIL

“WHEREAS, PG&E’s Community Pipeline Safety Initiative helps to 

ensure that PG&E[’s] pipeline is operating safely by looking at the area above 

and around the natural gas transmission lines to be certain that first 

responders and PG&E emergency response crews have critical access to the 

pipelines in the event of an emergency or natural disaster; and

“WHEREAS, PG&E conducted an in-depth safety review of the pipeline 

on EBRPD property in Contra Costa County and has identified 245 trees that 

need to be removed for gas pipeline safety; and

“WHEREAS, the Community Pipeline Safety Initiative will provide 

funding for tree replacement and maintenance; and

“WHEREAS, District procedures require Board Approval to accept 

funding; and 

“NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors 

of the East Bay Regional Park District hereby:

“1. Approves the acceptance of funding from PG&E’s Community 

Pipeline Safety Initiative; and 
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“2. Authorizes and directs the General Manager or Assistant 

General Manager of Finance and Management Services/CFO, on 

behalf of the District and in its name, to accept grant funds and 

execute and deliver such documents including, but not limited to 

applications, agreements, payment requests and amendments 

and to do such acts as may be deemed or appropriate to 

accomplish the intentions of this resolution; and 

“BE IT FURTHER RESOLVED, that the Assistant General Manager of 

Finance and Management Services/CFO or Budget Manager is hereby 

authorized to amend the current year’s budget, without further Board action, 

upon receipt of the executed contract from the Grants Manager. The budget 

amendment will include an increase in budgeted revenue and a 

corresponding increase in appropriation for the amount stipulated in the 

contract, including any interest.”

Thereafter, on March 22 and 23, 2017, representatives of EBRPD and 

PG&E signed a memorandum of understanding (MOU) “regarding 

implementation of the Community Pipeline Safety Initiative on EBRPD 

property in Contra Costa County.” The MOU stated, in pertinent part:

“Purpose

The purpose of this MOU is to establish an agreement between PG&E and 

EBRPD to guide implementation of the Community Pipeline Safety 

Initiative, as well as ongoing maintenance and monitoring of the area above 

the natural gas transmission pipeline, on EBRPD property.

Proposed Work and Mitigation

• As part of the Community Pipeline Safety Initiative, PG&E 

conducted an in-depth review of trees located up to 14 feet from 

the gas transmission pipeline on EBRPD property. The results of 

the review were shared with EBRPD and it was determined that 

a total of 245 trees are located too close to the pipeline and will be 

removed for safety reasons.

• PG&E will provide EBRPD with a payment of $1,000 for each 

tree that is being removed for safety reasons, for a total payment 

of $245,000.
6

• PG&E will provide one replacement tree for each of the 31 

EBRPD-owned trees within the City of Lafayette, per the City’s 

ordinance.

• PG&E will work with EBRPD on appropriate community 

outreach in advance of the planned safety work.

• PG&E will provide $10,000 to EBRPD to use towards two years 

of trail maintenance.

• PG&E will provide gas standby personnel to be onsite for all trail 

maintenance work performed by EBRPD adjacent to the pipeline 

that involves soil adjustment. . . .

Ongoing Monitoring and Maintenance

• PG&E will monitor any trees left in place near the pipeline as 

part of PG&E’s ongoing pipeline inspections and patrols. This 

will include annual foot patrol surveys as well as regular aerial 

patrols.

• PG&E will notify and coordinate with the Park Supervisor for 

access to park land for pipeline monitoring and maintenance 

work in non-emergency situations.

• Should any tree develop into a safety concern or require removal 

for a critical maintenance project in the future, PG&E will work 

with EBRPD to address it at that time.”3

3 In its responsive brief filed February 22, 2021, PG&E informs us that,

following the entry of judgment, “PG&E removed 93% of the 245 trees that 

were the subject of the MOU. Appellants made no effort to seek any type of 

injunctive relief to preserve the status quo. Only 17 of the relevant trees – all 

located along the Lafayette-Moraga Regional Trail on EBRPD-owned lands 

within the City of Lafayette – have not been removed. Those trees are 

currently subject to a preliminary injunction issued by the Bankruptcy Court 

(N.D. Cal., S.F. Div.) at the request of the City, prohibiting their removal 

pending the resolution of ongoing adversary proceedings between the City 

and PG&E; [a]ppellants are not parties to those proceedings, which involve 

PG&E’s proposed rejection and rescission of a Tree Removal Agreement 

(“TRA”) between it and the City and the TRA’s proper interpretation. (Adv. 

Proc. Nos. 20-03122, 20-03124.)” 

We also note appellants filed an action challenging the City of 

Lafayette’s March 27, 2017 approval of a separate “agreement with PG&E 
7

On June 27, 2017, EBRPD filed a Notice of Exemption (“NOE”) under 

CEQA in the county clerk’s office, announcing that the Board of Directors had 

reviewed and determined the MOU was not an activity subject to CEQA. It 

was further determined that “any activity related to the MOU would be 

categorically exempt” under CEQA, citing to section 21080.23 (Work on 

Existing Pipelines), and Guidelines sections 15301(b) (Existing Facilities), 

15302 (Replacement or Reconstruction), and 15304 (Minor Alterations to 

Land). 

B. Trial Court Proceeding

On July 31, 2017, appellants and EBRPD entered into an agreement by 

which they agreed to “toll all applicable statutes of limitations for 60 days”

(hereafter tolling agreement). PG&E did not consent to the tolling 

agreement. 

Within the 60-day tolling period, on September 29, appellants

commenced this action by filing a petition/complaint challenging EBRPD’s 

approval of the MOU against EBRPD as respondent/defendant and PG&E as 

real party in interest. Appellants also filed a proof of service that they had 

given EBRPD the required mail notice (§ 21167.54) of their intent to file a

CEQA action on September 28. The petition/complaint was personally served 

which authorized and imposed conditions on the removal of up to 272 trees 

within its local natural gas pipeline rights-of way.” (Save Lafayette Trees v. 

City of Lafayette (2019) 32 Cal.App.5th 148, 153.) This court found timely a 

cause of action alleging violations of CEQA, but dismissed as time-barred the 

non-CEQA causes of actions. (Id. at pp. 155-159, 160-162.) 

4 Section 21167.5 provides: “Proof of prior service by mail upon the public 

agency carrying out or approving the project of a written notice of the 

commencement of any action or proceeding described in Section 21167 

identifying the project shall be filed concurrently with the initial pleading in 

such action or proceeding.” 
8

on EBRPD on September 29, and personally served on PG&E’s 

representative on October 2, within 20 days of service on EBRPD. 

The first amended petition/complaint, filed March 28, 2018, is the 

pleading under review on this appeal. The first cause of action alleges 

EBRPD failed to undertake a CEQA analysis of the potential environmental 

impact of the removal of trees before approving the MOU (CEQA cause of 

action). The second cause of action alleges, in pertinent part, that EBRPD’s 

approval of the MOU violated the procedural and substantive requirements 

of the City of Lafayette Tree Protection Ordinance and EBRPD Ordinance 38. 

The third cause of action alleges EBRPD violated appellants’ state 

constitutional due process rights by approving the MOU without providing 

public notice “reasonably calculated to apprise [appellants] and other directly 

affected persons that hundreds of trees near their properties and along many 

miles of highly popular public recreational trails would be removed, and their 

property interests would be thereby affected”.5

The trial court sustained PG&E’s demurrer to the CEQA cause of 

action without leave to amend based upon its findings that it was time-barred 

under both the 35-day and 180-day limitations periods set forth in section 

21167.

6 The court sustained EBRPD’s demurrer to the second and third 

5 The amended petition also included a fourth cause of action alleging 

EBRPD had “proceeded in excess of its authority and abused its discretion” in 

approving the MOU without compliance, in pertinent part, with CEQA, the 

City of Lafayette’s Municipal Code, EBRPD Ordinance 38, and “the Due 

Process section of the California Constitution.” The trial court sustained 

EBRPD’s demurrer without leave to amend the fourth cause of action on the 

basis that it was derivative of the other causes of action and “must fall as 

they fall.” Appellants do not seek to reinstate this cause of action. 

6 Section 21167 states, in relevant part: “An action or proceeding to 

attack, review, set aside, void, or annul the following acts or decisions of a 
9

causes of action without leave to amend based upon its findings that they did 

not state causes of action for which relief could be granted and could not be 

amended to cure any defects. Following entry of a judgment of dismissal, 

appellants filed a motion to vacate the judgment that was denied. Their 

timely appeal ensued. 

DISCUSSION

A. Legal Framework 

“In our de novo review of an order sustaining a demurrer, we assume 

the truth of all facts properly pleaded in the complaint or reasonably inferred 

from the pleading, but not mere contentions, deductions, or conclusions of 

law. [Citation.] We then determine if those facts are sufficient, as a matter 

of law, to state a cause of action under any legal theory [Citation.] [¶] In 

making this determination, we also consider facts of which the trial court 

properly took judicial notice. [Citation.] Indeed, a demurrer may be 

sustained where judicially noticed facts render the pleading defective 

public agency on the grounds of noncompliance with this division shall be 

commenced as follows: 

 “(a) An action or proceeding alleging that a public agency . . . has 

approved a project that may have a significant effect on the environment 

without having determined whether the project may have a significant effect 

on the environment shall be commenced within 180 days from the date of the 

public decision to carry out or approve the project, or if the project is 

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

from the date of the commencement of the project. [¶] . . . [¶]

 “(d) An action or proceeding alleging that a public agency has 

improperly determined that a project is not subject to this division . . . shall 

be commenced within 35 days from the date of the filing by the public agency 

. . . of the notice authorized by subdivision (b) of Section 21108 [Notice of 

Exemption] . . . . If the notice has not been filed, the action or proceeding 

shall be commenced within 180 days from the date of the public agency’s 

decision to carry out or approve the project, or, if the project is undertaken 

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

of commencement of the project.”
10

[citation], and allegations in the pleading may be disregarded if they are 

contrary to facts judicially noticed.” (Scott v. JPMorgan Chase Bank, N.A. 

(2013) 214 Cal.App.4th 743, 751-752 (Scott).) 

“In order to prevail on appeal from an order sustaining a demurrer, the 

appellant must affirmatively demonstrate error. Specifically, the appellant 

must show that the facts pleaded are sufficient to establish every element of 

a cause of action and overcome all legal grounds on which the trial court 

sustained the demurrer.” (Scott, supra, 214 Cal.App.4th at p. 752.) 

B. Dismissal of CEQA Cause of Action as Time-Barred

We review de novo the order sustaining PG&E’s demurrer to the first 

cause of action under CEQA. (Coalition for Clean Air v. City of Visalia (2012) 

209 Cal.App.4th 408, 419-420.) As the CEQA cause of action was properly 

dismissed as barred by the 180-day limitations period, we do not address the 

parties’ additional arguments concerning the 35-day limitations period. 

The trial court found the 180-day limitations period began to run on 

March 21, 2017, expired on September 18, and, accordingly, the CEQA cause 

of action was time-barred as the lawsuit was filed “eleven days” late on

September 29, 2017. (See Walton v. Guinn (1986) 187 Cal.App.3d 1354, 1360 

[although “an amended complaint supersedes the original, the time of filing 

of the original complaint is still the date of commencement of the action for 

purposes of the statute of limitations”].) While EBRPD agreed to toll the 

statute of limitations, the trial court properly found the CEQA cause of action 

was subject to dismissal because PG&E, a necessary and indispensable party 

to that cause of action, had not consented to the tolling agreement. (Salmon 

Protection & Watershed Network v. County of Marin (2012) 205 Cal.App.4th

195, 204, fn. 6 (SPAWN); see Code Civ. Proc., § 389, subd. (b); County of 

Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 36-40 [court upheld 
11

dismissal of the action where petitioners failed to join necessary and 

indispensable parties before the statute of limitations ran]; but cf. 

Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 847-

862 [court found CEQA cause of action could proceed in the absence of a 

necessary but not indispensable party].) 

1. Tolling Agreement Was Not Binding on PG&E

The trial court did not abuse its discretion in finding PG&E a 

“necessary party” within the meaning of Code of Civil Procedure section 389, 

subdivision (a), and an “ ‘indispensable party,’ i.e., a party without whom” the 

CEQA cause of action could not “ ‘in equity and good conscience’ proceed.” 

(Id., subd. (b).) We do not agree with appellants that PG&E, not a signatory 

to the tolling agreement, was nonetheless bound by the tolling agreement “to 

the same extent” as EBRPD.

PG&E, as a named party, was entitled to either assert or waive the 

statute of limitations defense to the amended petition/complaint. (See

Travelers Indemnity Co. v. Bell (1963) 213 Cal.App.2d 541, 547 [defense of 

statute of limitations “is a ‘personal privilege’ to be asserted or waived at the 

option of the one entitled to assert it”]; Friends of Shingle Springs 

Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1474, 

1494-1495 [where appellant filed a petition for writ of mandate challenging 

certification and approval by county, through its board of supervisors, of a 

mini-mart and gas station complex, court entertained real party in interest 

project proponent’s demurrer on the basis that appellant did not have legal 

capacity to file petition].) 

In addition, PG&E was a necessary party to the tolling agreement as

supported by persuasive dictum in our decision in SPAWN, supra, 205 

Cal.App.4th 195. In SPAWN, plaintiff Salmon Protection and Watershed 
12

Network (SPAWN) sought to challenge the adequacy of an environmental 

impact report (EIR) certified in connection with the adoption of a general 

plan update for the San Geronimo Valley watershed. (Id. at 199.) SPAWN 

and the county entered into a series of tolling agreements extending the 30-

day limitations period in section 21167 for the filing of a complaint 

challenging the sufficiency of the EIR until September 14, 2010, during which 

time the parties engaged in unsuccessful settlement negotiations. (Id. at p. 

199.) In March 2011 the court allowed intervention by owners of properties 

within the affected watershed. (Id. at pp. 199, 200.) The complaint in 

intervention alleged that SPAWN’s petition was untimely because the 

purported agreement tolling the statute of limitations was not permitted 

under CEQA. (SPAWN, supra, at p. 199.) The trial court sustained

demurrers without leave to amend the complaint in intervention, holding

that CEQA did not prohibit tolling agreements. (SPAWN, supra, at p. 199.) 

In upholding the trial court’s ruling that tolling agreements under CEQA 

were permissible, we commented: 

“Since a party whose project has been approved by a public agency is a 

real party in interest in a challenge under CEQA to the validity of the 

approval and must be named as such (§ 21167.6.5, subd. (a)), an agreement to 

toll the limitation period, to be effective, must have the concurrence of the 

recipient of the approval that is being challenged. The project proponent, the 

public agency, and the party asserting noncompliance with CEQA are the 

three parties that must agree to toll the limitation period. If the project 

proponent wishes to proceed in accordance with the expedited statutory 

schedule, presumably believing that approach is most likely to speedily 

remove the challenge, the proponent need not agree to toll the limitation 

period. However, if the approval recipient is prepared to extend the date for 
13

filing a complaint in the belief that negotiations are more likely to yield a 

prompt resolution of the dispute and permit the project to proceed, the 

principal reason for urging haste with litigation disappears.” (SPAWN, 

supra, 205 Cal.App.4th at p. 204, fns. omitted.) 

We went on to hold, however, that in that case the intervenors were not

necessary parties to an effective tolling agreement because they were not real 

parties in interest:

“The dispute in the present case differs from the prototypical CEQA 

controversy concerning the approval of a site-specific project in that the 

project for which an EIR was prepared here is an amendment to a countywide 

plan, involving no individual project proponent. Although the intervenors’ 

properties may indirectly be affected by the update to the countywide plan, 

the interveners are not real parties in interest in litigation challenging its 

adoption. In granting their motion for intervention (Code Civ. Proc., § 387), 

the trial court stated that intervenors are ‘necessary’ parties within the 

meaning of Code of Civil Procedure section 389, subdivision (a) only because 

of SPAWN’s request for an injunction prohibiting the approval of 

development projects on their properties, and they are not ‘indispensable’

parties within the meaning of Code of Civil Procedure section 389, 

subdivision (b). . . . Section 21167.6.5 subdivision (d) provides explicitly that 

the failure to name persons other than those who are real parties in interest 

is not grounds for dismissing the proceedings. Not being real parties in 

interest, their approval is unnecessary to the entry of an agreement to toll 

the running of the limitations period.” (SPAWN, supra, at pp. 204-205, fn. 

omitted.) 

The SPAWN dictum espouses well-settled law regarding “agreements 

to extend or waive statute of limitations. Although parties certainly may 
14

contract to extend the limitation periods (e.g. Hambrecht & Quist Venture 

Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532, 

1547 . . .), it is well established that such an agreement has no effect on other 

potential parties not in privity.” (FNB Mortgage Corp. v. Pacific General 

Group (1999) 76 Cal.App.4th 1116, 1135 (italics added), citing Code Civ. Proc, 

§ 360.5 [a waiver of the statute of limitations is to be “signed by the person 

obligated”].)

Here, PG&E is clearly a real party in interest. Appellants would have 

us find that is of no import because, according to appellants, the real party in 

interest is not a necessary signatory to an effective tolling agreement as the 

deadlines for filing CEQA lawsuits are governed by an agency’s actions – and 

therefore the agency has the sole power and is the only party necessary to an 

agreement to toll the statute of limitations. (§§ 21167.6, 21167.6.5.7) In 

7 Section 21167.6 provides, in pertinent part:

“Notwithstanding any other law, in all actions or proceedings brought 

pursuant to Section 21167, . . . all of the following apply:

“(a) At the time that the action or proceeding is filed, the plaintiff or 

petitioner shall file a request that the respondent public agency prepare the 

record of proceedings relating to the subject of the action or proceeding. The 

request, together with the complaint or petition, shall be served personally 

upon the public agency not later than 10 business days from the date that 

action or proceeding was filed.”

Section 21167.6.5 provides, in pertinent part:

“(a) The petitioner or plaintiff shall name, as a real party in interest, 

the person or persons identified by the public agency in its notice filed 

pursuant to subdivision (a) or (b) of Section 21108 [Notice of CEQA 

Determination or Notice of CEQA Exemption], . . . or, if no notice is filed, the 

person or persons in subdivision (b) or (c) of Section 21065, as reflected in the 

agency’s record of proceedings for the project that is the subject of an action 

or proceeding brought pursuant to Section 21167, . . ., and shall serve the 

petition or complaint on that real person in interest, by personal service, 

mail, facsimile, or any other method permitted by law, not later than 20

business days following the service of the petition or complaint on the public 
15

other words, it is appellants’ contention that where an agreement between 

the petitioner and the agency tolls all applicable limitation periods for filing –

and subsequent service – of a petition or complaint, all obligations to, or 

interests and rights of any real party in interest automatically run from that 

extended tolled deadline under section 21167.6.5. Appellants support their 

argument by asking us to consider our recognition in Save Lafayette Trees v. 

City of Lafayette, supra, 32 Cal.App.5th 148 at page 162, that “CEQA’s 

deadlines for service of CEQA petitions govern[ ] ‘[n]otwithstanding any other 

law.’ ”

Appellants’ focus on CEQA’s service requirements is of no moment. 

The “ ‘propriety’ ” of timely compliance with the service requirements on a 

real party in interest “would matter if, and only if, valid service of” the 

pleading “constituted commencement of an action against” the real party in 

interest “for statute of limitations purposes. [¶] It did not.” (Fireman’s Fund 

Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1144; 

italics added.) The “notwithstanding any other law” in section 21167.6 

governing “service” requirements “can only establish that statute’s 

precedence over other statutes arguably covering the same subject matter;” 

for example, “[w]hile section 21167.6 sets forth rules for the time in which 

service must be made, it does not purport to govern the manner;” and 

consequently, we would “adhere to the standard rules contained in the Code 

of Civil Procedure which cover the manner of service.” (Board of Supervisors 

v. Superior Court (1994) 23 Cal.App.4th 830, 840, fn. 7.)

Here, we are concerned with the commencement of an action for the 

purposes of the statute of limitations. Because sections 21167.6 and 

agency. [¶] . . . [¶] (d) Failure to name potential persons, other than those real 

parties in interest described in subdivision (a), is not grounds for dismissal 

pursuant to Section 389 of the Code of Civil Procedure.”
16

21167.6.5 do not provide any specific rules for the “filing” of the petition or 

complaint that commences a CEQA action, we adhere to the standard rules in 

the Code of Civil Procedure that govern the commencement of a civil action 

for the purpose of stopping the running of the statute of limitations. (Code 

Civ. Proc., §§ 350, 411.10.) Hence, the filing of the appropriate pleading in 

court is the only act that “stops the running of the statute” of limitations

against a party and the trial court properly recognized that any service 

requirements were inapplicable to the question at hand. (Pimental v. City of 

San Francisco (1863) 21 Cal. 351, 367; see Garcia v. Lacey (2014) 231 

Cal.App.4th 402, 411 [“civil actions (such as lawsuits for damages or 

equitable relief) and special proceedings (such as writ petitions) are 

commenced when the plaintiff’s complaint or petition is filed with the 

court”].) 

The trial court also properly found that the tolling agreement was not 

effective as it was not agreed to by real party in interest PG&E, a necessary 

and indispensable party to the CEQA cause of action. The “primary purpose” 

of the limitation period in section 21167 “is to protect project proponents from 

extended delay, uncertainty and potential disruption of a project caused by a 

belated challenge to the validity of the project’s authorization.” (SPAWN, 

supra, 205 Cal.App.4th at p. 205.) CEQA does not statutorily authorize 

tolling agreements so while the parties can agree to toll any applicable

limitations period, that is not by statutory right, but by private agreement of 

the parties and hence pursuant to the terms of any such agreement.

Appellants’ position that PG&E is not a necessary party to any tolling 

agreement would in practice defeat the primary purpose of the limitation 

period (protection from delay and uncertainty) because no settlement 

agreement could be reached without all necessary parties, including PG&E. 
17

2. CEQA Claim Barred by 180-Day Limitations Period

Appellants contend that, even in the absence of the tolling agreement,

the CEQA cause of action was timely filed as the 180-day limitations period 

did not start on March 21, 2017 (as found by the trial court) because neither 

the Board’s on-line agenda notice for the March 21, 2017 public hearing or 

“the accompanying description of the Board Resolution in question mentioned 

or even implied that any trees would be removed” as part of PG&E’s funding 

proposal. Appellants further alleged in their amended petition/complaint 

that EBRPD purportedly “failed to provide any written notice, by mail, 

posting, or publication, reasonably calculated to apprise the public . . . of 

PG&E’s proposed removal of trees.” Thus, according to appellants, the 180-

day limitations period did not commence until they had “constructive notice 

of the project,” which was many weeks after the approval of the MOU. We 

find these arguments unavailing.

Our Supreme Court has held that when an agency approves a project 

without filing either a notice of determination (NOD) as to whether a project 

will have a significant environment impact or a notice of exemption (NOE) as 

to whether a project is statutorily exempt from CEQA, section 21167 

nonetheless “permits a legal challenge to be brought up to 180 days after the 

agency’s decision or commencement of the project,” which “is deemed 

constructive notice for potential CEQA claims.” (See Committee for Green 

Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 47

(Committee for Green Foothills), italics added; Stockton Citizens for Sensible 

Planning v. City of Stockton (2010) 48 Cal.4th 481, 500 (Stockton Citizens for 

Sensible Planning) [accord].) 

Section 21167 does not establish any special notice requirements for 

the commencement of the 180-day limitations period from project approval. 
18

“[A]ll that is required is that the public agency makes a formal decision to 

‘carry out or approve the project.’ ” (Citizens for a Green San Mateo v. San 

Mateo County Community College Dist. (2014) 226 Cal.App.4th 1572, 1597.)

8

“The Guidelines define ‘approval’ as ‘the decision by the public agency which 

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

intended to be carried out by any person.’ (Guidelines, §15352, subd. (a).) 

The Guidelines continue: ‘The exact date of approval of any project is a 

matter determined by each public agency according to its rules, regulations, 

and ordinances. Legislative action in regard to a project often constitutes 

approval.’ (Ibid.)” (County of Amador v. El Dorado County Water Agency 

(1999) 76 Cal.App.4th 931, 963 (County of Amador).) 

The facts in the judicially noticed documents in the record9 show that,

following the public hearing on March 21, 2017, EBRPD was committed to a 

definite course of action by issuing a resolution authorizing (and directing the 

execution of an agreement) accepting funding from PG&E for the cost of the 

tree replacement (following necessary removal of 245 trees) and maintenance 

8 Consequently, we find inapposite appellants’ reliance on Defend Our 

Waterfront v. State Lands Com. (2015) 240 Cal.App.4th 570, which addresses 

the issue of adequacy of public notice for the purposes of determining 

whether a plaintiff has exhausted his administrative remedies before filing a 

CEQA lawsuit (id. at p. 584).

9 “Where, as here, judicial notice is requested of a legally operative

document, . . . the court may take notice not only of the fact of the document 

and its recording or publication, but also facts that clearly derive from its

legal effect. [Citation.] Moreover, whether the fact derives from the legal 

effect of a document or from a statement within the document, the fact may 

be judicially noticed where, as here, the fact is not reasonably subject to 

dispute.” (Scott, supra, 214 Cal.App.4th at p. 754; italics in original.) To the 

extent appellants’ allegations in the amended petition/complaint are directed 

at lack of sufficiency of the approval notice we disregard them as being 

contrary to the judicially noticed facts. (Intengan v. BAC Home Loans 

Servicing LP (2013) 214 Cal.App.4th 1047, 1055.)
19

at Briones Regional Park and Lafayette-Moraga Regional Trail. The MOU, 

executed by EBRPD and PG&E on March 22 and 23, 2017, was consistent 

with the resolution and the project as outlined in the staff report submitted 

to the Board. (See Cumming v. City of San Bernardino Redevelopment 

Agency (2002) 101 Cal.App.4th 1229, 1235 [“public record gave sufficient 

notice to start [CEQA 180-day] statute of limitations running” where the

“scope of the . . . project was disclosed in the public documents made available 

for review before the sale was approved”]; but cf. County of Amador, supra, 72 

Cal.App.4th at pp. 964-965 [the 180-days limitations period did not start to 

run from project approval because the agency’s resolution, which only 

authorized negotiations, was not an approval of the project].) 

Accordingly, the public was given the necessary “constructive notice” 

that the 180 days started to run from March 21, 2017, the “statutory 

triggering date” of project approval. (Committee for Green Foothills, supra, 

48 Cal.4th at p. 47; see County of Del Norte v. City of Crescent City (1999) 71 

Cal.App.4th 965, 980 [court found date city council held public hearing and 

enacted policy in the form of a resolution, passed by motion, to be date 180-

day limitations period commenced]; City of Chula Vista v. County of San 

Diego (1994) 23 Cal.App.4th 1713, 1720 [even if the “wording of the NOE . . . 

was insufficient to start the running of the 35-day limitations period, . . . the 

broader 180-day limitations period applies . . . because the facts alleged in the 

City’s petition, as read in conjunction with judicially noticeable facts, clearly 

show that the ‘project’ (i.e. the agreement) was approved by the County on 

November 28, 1989 and the actual agreement executed on January 29, 1992 

was not substantially different from the original ‘project,’ ” and “[a]ccordingly, 

the 180-day limitations period began to run on November 28, 1989 and 

expired 180 days later, barring the City’s petition which was not filed until 
20

July 22, 1992”].) Our Supreme Court has made clear that any “flaws in a 

project approval process” do not delay the limitations period normally 

applicable when, as in the instant case, EBRPD “gave notice of the very 

approval the [appellants] seek to challenge.” (Stockton Citizens for Sensible 

Planning, supra, at 48 Cal.4th at p. 511; italics in original.)

Nor are we persuaded by appellants’ arguments that the action should 

be deemed timely filed based on the decisions in Concerned Citizens of Costa 

Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929 (Concerned 

Citizens of Costa Mesa) and Ventura Foothill Neighbors v. County of Ventura

(2014) 232 Cal.App.4th 429 (Ventura Foothill Neighbors). Our recitation of 

the facts in those cases demonstrate they are inapposite. In Concerned 

Citizens of Costa Mesa, the plaintiffs’ CEQA challenge for failure to file a 

supplemental environment impact report (“EIR”) was deemed timely because 

the statutory triggering date for the plaintiffs’ action (challenging the project 

actually constructed – which included an amphitheater – as opposed to what 

was described in the EIR) was “within 180 days of the time the plaintiff[s] 

knew or reasonably should have known that the project under way differs 

substantially from the one described in the EIR.” (42 Cal.3d at pp. 939-940; 

italics added.) Ventura Foothill Neighbors also concerned a situation where 

the agency had approved an EIR for a building to be 75 feet tall, but the

project proponent later increased the height to 90 feet and the agency gave no 

notice that the changed project was subject to CEQA or filed an addendum to 

the EIR, and thus there was no actual notice of the new height until an 

inquiry was made at the construction site. (232 Cal.App.4th at pp. 432-433.) 

The plaintiff’s challenge to the height change was timely, even though section 

21167, subdivision (e) required actions to be filed within 30 days of the 

decision announced in a filed notice of determination, because the notice of 
21

determination had omitted the change in the building’s height. (Id. at p. 

436.) Thus, in both cases the actions were determined to be timely filed

because a “statutory triggering date never actually transpired” to start the 

running of the statute of limitations. (Communities for a Better Environment

v. Bay Area Air Quality Management Dist. (2016) 1 Cal.App.5th 715, 725.) 

Here, we are not concerned with an omission similar to what occurred in 

Concerned Citizens of Costa Mesa and Ventura Foothill Neighbors. The 

record shows “a statutory triggering date” – March 20, 2017 – EBRPD’s 

formal decision approving Resolution No. 2017-03-065, authorizing 

acceptance of PG&E’s funding for tree replacement (following the necessary 

removal of 245 trees) and maintenance at Briones Regional Park and 

Lafayette-Moraga Regional Trail.

In sum, we conclude the first cause of action under CEQA was properly 

dismissed, as a matter of law, because the lawsuit was not filed within 180 

days of EBRPD’s public “decision to carry out or approve the project” under 

section 21167. Our determination renders moot and accordingly we do not 

address appellants’ additional argument that the agency’s NOE failed to 

provide sufficient notice to trigger CEQA’s shorter 35-day limitations period 

under section 21167, or their argument that the CEQA cause of action is not 

governed by the shorter 90-day limitations period in Government Code 

section 65009, which governs land use planning and zoning actions of a city, a 

county, or a city and county (see Save Lafayette Trees v. City of Lafayette, 

supra, 32 Cal.App.5th at pp. 160-162). 

C. Dismissal of Second Cause of Action

1. City of Lafayette Tree Protection Ordinance

The trial court found the second cause of action’s allegations that 

EBRPD’s approval of the MOU violated the City of Lafayette Tree Protection 
22

Ordinance could not be sustained because EBRPD’s action was authorized by 

sections 5541 and 5541.110, a state law, which preempted the City of 

10 Section 5541 reads: 

“A district may plan, adopt, lay out, plant, develop, and otherwise 

improve, extend, control, operate, and maintain a system of public parks, 

playgrounds, golf courses, beaches, trails, natural areas, ecological and open 

space preserves, parkways, scenic drives, boulevards, and other facilities for 

public recreation, for the use and enjoyment of all the inhabitants of the 

district, and it may select, designate, and acquire land, or rights in land, 

within or without the district, to be used and appropriated for such purposes. 

It may cause such trails, parkways, scenic drives, and boulevards to be 

opened, altered, widened, extended, graded or regraded, paved or repaved, 

planted or replanted, repaired, and otherwise improved, . . ., and may do all 

other things necessary or convenient to carry out the purposes of this article.

“The board of directors of a district shall not interfere with control of 

any of the foregoing or other public property, that are existing, owned or 

controlled by a municipality or county in the district, except with the consent 

of the governing body of the municipality, or of the county if the same is in 

unincorporated territory, and upon such terms as may be mutually agreed 

upon between the board of directors of the district and the governing body.”

Section 5541.1 reads: “The East Bay Regional Park District may plan, 

adopt, lay out, plant, develop, and otherwise improve, extend, control, 

operate, and maintain vehicular recreational areas and trails for the use and 

enjoyment of all the inhabitants of the district, and it may select, designate, 

and acquire land, or rights in land, within or without the district, to be used 

and appropriated for such purposes. The East Bay Regional Park District 

may cause such vehicular recreational areas and trails to be opened, altered, 

widened, extended, graded or regraded, paved or unpaved, planted or 

replanted, repaired, and otherwise improved. 

“The Board of Directors of the East Park Regional Park District shall 

not interfere with the control of any vehicular recreational area or trail that 

is existing, owned, or controlled by a municipality or county in the district, 

except with the consent of the governing body of the municipality, or of the 

county if the same is in unincorporated territory, and upon such terms as 

may be mutually agreed upon between the board of directors and the 

governing body.”
23

Lafayette Tree Protection Ordinance11, a local ordinance in conflict with a 

state law. In challenging the trial court’s ruling, appellants contend the City 

of Lafayette Tree Protection Ordinance is not preempted by state law and, 

therefore, EBRPD is required to comply with it in regard to trees located on

district land situated within the geographical boundaries of the City of 

Lafayette despite EBRPD’s broad authority to maintain its land under 

section 554112. We disagree. 

11 City of Lafayette Tree Protection Ordinance, adopted in 2003 and 

amended in 2010 and 2014 (Lafayette Mun. Code, chs. 6-17), provides, in 

pertinent part: 

“6-1701 Purpose and Findings 

B. Findings. The City Council finds that: 

1. The policies of the City are to protect existing woodlands and 

their associated vegetation, protect native trees, preserve 

riparian habitat, encourage the planting of native species, and 

avoid the cutting of mature trees. 

2. In order to implement these policies and to promote the public 

health, safety and welfare, it is necessary to protect existing trees 

and require the replacement of trees that have been destroyed or 

removed.

3. Protected trees are valuable assets to the City and the 

community, and the public shall be compensated when a 

protected tree is destroyed or removed in a manner that is not in 

compliance with this chapter.”

“6-1703 Destruction of a protected tree

It is a violation of this chapter for any person to remove or destroy a 

protected tree without a category I or category II permit under section 6-1706 

or 6-1707, or without the approval of an exception under section 6-1705.”

12 While our discussion addresses the preemptive effect of section 5541, it 

applies equally to the preemptive effect of section 5541.1. For convenience, 

however, our discussion makes reference only to section 5541. 
24

In Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 

1139 at pages 1149-1150, our Supreme Court set forth the principles of state 

law preemption as follows: 

“The party claiming that general state law preempts a local ordinance 

has the burden of demonstrating preemption. [Citation.] We have been 

particularly ‘reluctant to infer legislative intent to preempt a field covered by 

municipal regulation when there is a significant local interest to be served 

that may differ from one locality to another.’ [Citation.] . . . [¶] Thus, when 

local government regulates in an area over which it traditionally has 

exercised control, such as the location of particular land uses, California 

courts will presume, absent a clear indication of preemptive intent from the 

Legislature, that such regulation is not preempted by state statute. 

[Citation.] . . . [¶] Moreover, the ‘general principles governing state statutory 

presumption of local land use regulation are well settled. . . . “A county or city 

may make and enforce within its limits all local, police, sanitary, and other 

ordinances and regulations not in conflict with general laws.’’ (Cal. Const., 

art. XI, § 7; italics added [in original].) “ ‘Local legislation in conflict with 

general law is void. Conflicts exist if the ordinance duplicates [citations], 

contradicts [citation], or enters an area fully occupied by general law, either 

expressly or by legislative implication [citations].’ ” ’ [Citation.] [¶] Local 

legislation is ‘duplicative’ of general law when it is coextensive therewith and 

‘contradictory’ to general law when it is inimical thereto. Local legislation 

enters an area ‘fully occupied’ by general law when the Legislature has 

expressly manifested its intent to fully occupy the area or when it has 

impliedly done so in light of recognized indicia of intent. [Citation.]” With 

these principles in mind, we now address the parties’ arguments.
25

“The Legislature first authorized the creation of regional park districts 

in 1933 ‘for the purpose of acquiring, improving, and maintaining parks, 

playgrounds, beaches, parkways, scenic drives, boulevards and other facilities 

for public recreation.’ (Stats. 1933, ch. 1043, p. 2664.) This act was later

codified in 1939 as section 5500 et seq. (Stat. 1939, ch. 94, p. 1217 et seq.) and 

then expanded in 1975 to include regional open space districts as well as 

combination use districts, called regional park and open space districts 

(§ 5500, as amended Stats. 1975, ch. 813, § 2, p. 1846). Such districts now . . . 

stretch from Los Angeles County in the south to Napa and Sonoma Counties 

in the north. [

13] The oldest and most developed district, and the one 

envisioned by the authors of the original legislation in 1933, is East Bay 

Regional Park District.” (Ste. Marie v. Riverside County Regional Park &

Open-Space Dist. (2009) 46 Cal.4th 282, 286 (Ste. Marie).) As of the filing of 

the March 29, 2018, amended petition/complaint, EBRPD encompassed “65 

regional parks, recreation and wilderness areas, shorelines, preserves and 

land bank areas totaling approximately 121,000 acres in Contra Costa and 

Alameda Counties.” 

The authority of a regional park district to manage the resources on its 

titled lands – is one that is faced by each Amici, which like EBRPD, “own and 

steward lands that cross municipal jurisdictions.” “The enabling legislature 

grants extremely broad and all-inclusive powers over the lands that the

[d]istrict has acquire[d] and own[ed]” and for which it holds title, and “is 

essential to each [d]istrict’s ability to fulfill its mission and to manage its 

13 We granted leave and have received a joint Amici Brief in support of 

EBRPD from the Midpeninsula Regional Open Space District, Santa Clara 

Valley Open Space Authority, Marin County Open Space District, Monterey 

Peninsula Regional Park District, and the Napa County Regional Park and 

Open Space District. Appellants have filed a responsive brief in opposition to 

the Amici Brief.
26

resources.” Section 5541 authorizes EBRPD to “plan, adopt, lay out, plant, 

develop, and otherwise improve, extend, control, operate, and maintain a 

system of public parks, playgrounds, golf courses, beaches, trails, natural 

areas, ecological and open space preserves, parkways, scenic drives, 

boulevards, and other facilities for public recreation” (hereafter collectively 

“recreational recourses”), and “may do all other things necessary or 

convenient to carry out the purposes of this article.” (§ 5541.) This broad 

grant of authority over recreational resources is subject to one limitation

(hereafter section 5541 exception): “The board of directors of a district shall 

not interfere with control of any of the foregoing or other public property, that 

are existing, owned or controlled by a municipality or county in the district, 

except with the consent of the governing body of the municipality, or of the 

county if the same is in unincorporated territory . . . .” (§ 5541.) 

Appellants contend section 5541’s exception prohibits EBRPD’s 

interference with all recreational and other public property that is either 

“owned or controlled” by the City of Lafayette, and therefore EBRPD must 

comply with the city’s Tree Protection Ordinance because the city “has 

elected to control the removal of healthy, mature trees from the District’s 

lands within the City by requiring permits under its Tree Protection 

Ordinance.” We conclude that section 5541’s exception is “most logically and 

plainly read to restrain” a park district from “taking control of locally (city or 

county) owned, built, or operated parks and recreational facilities” and other 

public property, located within the geographical boundaries of regional park 

district, “such as a city’s public golf course.” (Italics added.) 

Our interpretation of section 5541’s exception is supported by the 

available legislative history. Before 1963, the second paragraph of section 

5541 prohibited park district interference with “ ‘existing public park, 
27

playground, beach, parkway, scenic drive, boulevard, or other public property 

owned or controlled by a municipality or county in the district,’ ” and 

repeated the recreational resources from the first paragraph. “[T]he 1963 

amendments added ‘golf courses’ to the list of recreational resources that a 

park district could control in the first paragraph,” and the second paragraph’s 

repetitive list of recreational resources was replaced with: “ ‘of the foregoing 

or other public property, that are existing.’ ” Therefore, “ ‘existing’ ” 

references the list of recreational resources listed in the first paragraph. The 

Legislature Counsel’s Digest for this 1963 amendment summarizes the 

relevant amendment as follows: “Provides that a regional park district may 

exercise powers for recreation purposes among which are golf courses but not 

limited to such enumerated purposes but the district is not to interfere with 

control of existing recreational facilities owned or controlled by municipality 

or county except with the consent of the governing body.’ ” (Italics added.) 

Thus, the reason for the section 5541 exception appears to be an 

acknowledgment that as between EBRPD and the cities and counties, 

EPRPD “has no right to control” recreational resources that are owned or 

controlled by those local entities. (Vasilenko v. Grace Family Church (2017) 3 

Cal.5th 1077, 1084.) 

Appellants do not allege that EBRPD’s approval of the MOU was an 

attempt to regulate recreational resources that are controlled by the City of 

Lafayette, as mentioned in section 5541’s exception. Rather, they argue that 

the City of Lafayette may interfere with EBRPD’s control of its own land, a 

proposition which is not supported by section 5541’s exception. As Amici 

concisely explained, if section 5541’s exception were read as appellants 

suggest, “it would defeat any purposes behind having separate Parks and 

Open Space Districts formed under the enabling legislature at all, as, [the 
28

Park Districts] would have no authority to ‘plan, adopt, lay out, plant, 

develop, and otherwise, improve, extend, control, operate, and maintain a 

system of public parks, playgrounds, golf courses, beaches, trails, natural 

areas, ecological and open space preserves’ as prescribed by the first sentence 

in . . . [section 5541]. That interpretation would be nonsensical and a selfcancelling reading of the statute” that should be rejected. And, as argued by 

EBRPD, to accept appellants’ interpretation of section 5541’s exception would 

mean that “cities and counties must consent to all management decisions 

affecting all park district [r]ecreational [r]esources since all will necessarily 

be [geographically located] within either a city or county. . . . This reading 

would undermine the broad authority given to park districts in [s]ections

5500 et. seq., . . . impermissibly allowing the exception to become the rule.” 

(See Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2009) 

173 Cal.App.4th 13, 26 [rejecting statutory interpretation where “the 

exception would swallow the rule”]; Teachers’ Retirement Bd. v. Genest (2007) 

154 Cal.App.4th 1012, 1028 [“[w]e avoid an interpretation that renders any 

portion of the statute superfluous, unnecessary, or a nullity; this is so 

because we presume that the Legislature does not engage in idle acts”].) 

The Legislature, when creating the regional park districts, specifically 

provided in section 5595: “ ‘This article14 shall be liberally construed to 

promote its objects and to carry out its intent and purposes.’ ” And, as noted, 

“the intent of the legislative scheme was to create park districts ‘for the 

purpose of acquiring, improving, and maintaining parks, playgrounds, 

beaches, parkways, scenic drives, boulevards and other facilities for public 

14 “The term ‘article’ in section 5595 refers to article 3 (‘Regional Park, 

Park and Open Space, and Open-Space Districts’) of chapter 3 (‘Districts’) of 

division 5 (‘Parks and Monuments’) of the Public Resources Code.” (Ste. 

Marie, supra, 46 Cal.4th at p. 294, fn. 8.) 
29

recreation.’ (Stats. 1933, ch. 1043, p. 2664.)” (Ste. Marie, supra, 46 Cal.4th 

at p. 294.) To that end the Legislature has also provided in section 5593 that 

“[a]ll matters and things necessary for the proper administration of the 

affairs of districts which are not provided for in this article shall be provided 

for by the board of directors of the district.” As noted by Amici, if the 

Legislature intended to “subordinate” a regional park district’s authority to 

implement land management decisions on its own land to “local regulatory 

authority,” it knew how to do so. For example, when the Legislature created 

certain special districts governed by the Recreation and Park District Law

(§ 5780 et seq.), specific statutory language was provided to mandate that 

“the district’s purpose and function is subordinated to city and county 

planning ordinances.”

We also find compelling Amici’s contention that to allow a local 

jurisdiction to “dictate” how a regional park district is to manage its own 

lands and resources would render unworkable any district-wide plans. The 

Legislature expressly provides that a regional park district may encompass 

more than one city, one county, or one city and county. Section 5502 reads: 

“(a) Three or more cities, together with any parcel or parcels of city or county 

territory, whether in the same or different counties, may organize and 

incorporate. All the territory in the proposed district shall be contiguous. (b) 

Notwithstanding subdivision (a), one or more cities, together with any parcel 

or parcels of city or county territory, whether in the same or different 

counties, the territory of all of which when combined has a population of at 

least 50,000, may organize and incorporate. All the territory in the proposed 

district shall be contiguous.” By providing for regional park districts 

encompassing more than one local jurisdiction, “[i]t is apparent that the 

Legislature did not intend that a county enact legislation controlling 
30

activities of a district which extended into another county. If each county, in 

which there is a portion of the district, should enact legislation purporting to 

control the activities of the district, it is obvious there would be confusion as 

to rules and regulations. Likewise, if a city or cities within a district were to 

enact legislation purporting to control the affairs of the district there would 

be confusion.” (Baldwin Park County Water Dist. v. County of Los Angeles

(1962) 208 Cal.App.2d 87, 96.) 

Thus, we concur with Amici that to accept appellants’ argument that 

EBRPD is subject to the City of Lafayette Tree Protection Ordinance would 

create a “cross-county or cross-jurisdictional ‘checkerboard’ problem,” with 

serious practical and policy considerations. As Amici explain, “[t]o date, the 

lack of precedent on the issue of preemption has led the Districts to rely on 

long-standing, carefully nurtured relationships between the staff of the 

respective District and the staff of the municipal jurisdictions that may be 

feeling pressure to assert authority. The city staff may not be sure if they 

have jurisdiction at all, and will often work cooperatively with the District 

Staff to come to an agreement about the substance, with or without granting 

a permit. [¶] With hard work and good faith, in the context of long-term staffto-staff relationships, this often works. Where there is, however, city or 

county staff turnover, local disagreement, or a strong opinion locally about 

specific resource management decisions, there can be significant delay, cost 

and uncertainty added to the process of resource management by individual 

Districts navigating this minefield.”

In reply, appellants contend their challenge to the removal of the trees 

on EBRPD’s land “has nothing to do with the District’s park management 

plans” and that we must read their amended pleading as a challenge to the 

“purely self-interested action by a for-profit corporation” that is acting for its 
31

own purpose to “destroy the District’s publicly owned mature and iconic trees 

greatly enjoyed by the District’s recreational users.” However, on a demurrer 

we do not consider appellants’ contentions as to their interpretation of the 

MOU but rather we look at the actual terms of the MOU. The enabling 

legislation for regional park districts (see, e.g., §§ 5541, 5549, 5594) grants

EBRPD broad authority “to manage its own property” including entering into 

contracts for maintenance services on district land, “whether that decision is 

embodied in a contract with a private party, in an ordinance, or in some 

combination of the two.” (Great Western Shows, Inc. v. County of Los Angeles 

(2002) 27 Cal.4th 853, 871.) While the MOU includes a provision that PG&E 

will provide a replacement tree for each of 31 EBRPD-owned trees within the 

City of Lafayette, per the City’s ordinance, it is not a concession by EBRPD

that its Board of Directors was statutorily mandated to comply with the City 

of Lafayette Tree Protection Ordinance before approving the MOU with 

PG&E. Because section 5541’s exception does not grant the City of Lafayette 

the “authority” to control the land owned by the regional park district by 

prohibiting tree removal on district-owned lands absent a permit, we see no 

legal significance to appellants’ assertion that the city “has elected to control 

the removal of healthy, mature trees” on the district’s land within the city’s 

geographical boundaries “by requiring permits under its Tree Protection 

Ordinance.”

15

15 In light of our determination that section 5541 preempts the City of 

Lafayette Tree Protection Ordinance, we do not address appellants’ 

alternative argument, raised for the first time on appeal, that in the absence 

of preemption EBRPD must comply with the City of Lafayette Tree 

Protection Ordinance under Government Code section 53091, which requires 

local agencies to comply with city zoning ordinances in which the territory of 

the local agency is situated. 
32

In sum, we conclude the City of Lafayette Tree Protection Ordinance

does not apply to EBRPD’s approval of the MOU and the demurrer was 

properly sustained without leave to amend. “[W]here the nature of the 

plaintiff’s claim is clear, and under substantive law no liability exists, a court 

should deny leave to amend because no amendment could change the result.” 

(City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 

Cal.App.4th 445, 459 (City of Atascadero).) 

2. EBRPD Ordinance 38

The trial court also found the second cause of action’s allegations that 

EBRPD’s approval of the MOU violated certain provisions of EBRPD 

Ordinance 38 (hereafter Ordinance 38) 16 were not sustainable because, as a 

16 EBRPD’s Board of Directors issued Ordinance 38 as part of EBRPD’s “ 

‘Master Plan’ “ governing management of district land. The ordinance sets 

forth EBRPD’s “land use rules and regulations,” including the following 

pertinent provisions: 

“CHAPTER 1 – DEFINITIONS: 

“SECTION 100. GENERAL. Unless the context otherwise requires, 

the definition hereinafter set forth shall govern the construction of this 

Ordinance.

“SECTION 101. DISTRICT DEFINED. ‘District’ means the East 

Bay Regional Park District, and includes all lands and waters owned, 

controlled, or managed by the East Bay Regional Park District, which 

hereinafter be referred to as ‘parklands.’

“SECTION 102. PERSON DEFINED: ‘Person’ means any natural 

person, firm, corporation, club, municipality, district or public agency, and all 

associations or combinations of person whenever acting for themselves or by 

any agent, servant or employee.” 

“SECTION 103. PERMISSION DEFINED. “Unless otherwise

expressly provided, ‘permission’ means written permission, granted by the 

General Manager of the East Bay Regional Park District or the General 

Manager’s designee.” 
33

matter of law, Ordinance 38 did not apply to actions taken by EBRPD’s Board 

of Directors. Appellants challenge this ruling based on the overarching 

premise that Ordinance 38, by definition, applies to the actions of EBRPD’s 

Board of Directors. We find appellants’ challenge unavailing.

Appellants ask us to consider that Ordinance 38 includes in its 

definition of the “person[s]” subject to its prohibitions “any . . . district or 

public agency, and . . . any agent . . . or employee,” and “[t]he District 

certainly falls within the plain meaning of ‘any district.’ ” However, “the 

‘plain meaning’ rule does not prohibit a court from determining whether the 

literal meaning of the statute comports with its purpose or whether such a 

construction of one provision is consistent with other provisions of the 

statute. The meaning of a statute may not be determined from a single word 

or sentence; the words must be construed in context, and the provisions 

relating to the same subject matter must be harmonized to the extent 

possible. [Citation.] Literal construction should not prevail if it is contrary to 

the legislative intent apparent in the statute. The intent prevails over the 

letter, and the letter will, if possible, be so read as to conform to the spirit of 

the act. [Citations.] An interpretation that renders related provisions

nugatory must be avoided [citation], each sentence must be read not in 

“CHAPTER II - REGULATIONS

“SECTION 200. General Regulations. 

“200.1 All persons entering upon District parkland shall abide by the 

rules and regulations of the District, the laws of the State of California, and 

all applicable county and/or municipal ordinances.”

“200.2 The provisions of this Ordinance shall not apply to employees of 

the District or to the concessionaries or their employees engaged in and 

acting within the scope of their authorized duties and concession activities or 

to allied agency emergency personnel in the performance of their official 

duties. However, District employees and concessionaires and their employees 

shall abide by the laws of the State of California and all applicable county 

and/or municipal ordinances (rev. 4/12).”
34

isolation but in the light of the statutory scheme [citation], and if a statute is 

amenable to two alternative interpretations, the one that leads to the more 

reasonable result will be followed [citation].” (Lungren v. Deukmejian (1988) 

45 Cal.3d 727, 735.) 

Under its enabling legislation in section 5558, EBRPD’s Board of 

Directors is mandated to (a) “superintend, control, and make available to all 

of the inhabitants of the district, subject to its ordinances, rules, and 

regulations, all public parks, playgrounds, beaches, parkways, scenic drives, 

boulevards, open spaces, and other facilities for public recreation belonging to 

the district or under its control;” (b) “adopt all ordinances, rules, and 

regulations necessary for the administration, government, protection, and 

use of the property, improvements, and facilities belonging to the district or 

under its control”; and (c) “in general, do all acts necessary to the proper 

execution of the powers and duties granted to, and imposed upon it by this 

article, and to manage and control the business and affairs of the district.” 

Consistent with this legislative mandate, it is apparent that EBRPD adopted 

Ordinance 38 to provide rules and regulations for the general public’s use of 

district land, not to govern EBRPD’s administration of district land, which is 

subject to separate “Operating Guidelines,” of which we have taken judicial 

notice. (See fn. 2, ante.) 

Because Ordinance 38 constitutes the rules and regulations for the 

general public’s use of district land, EBRPD made a concerted effort to 

provide that Ordinance 38 would not apply to its employees and 

concessionaires acting in the performance of their duties and included

separate definitions for EBRPD and the Board of Directors. While there is no 

question that, if read literally, the definition of “person” would include 

EBRPD and its Board of Directors, to so read the language would thwart and 
35

conflict with EBRPD’s legislative mandate to maintain its lands under 

section 5541 and manage and control the business and affairs of the district 

under section 5558. Another “fundamental rule[] of statutory construction is 

that a law should not be applied in a manner producing absurd results, 

because the Legislature is presumed not to intend such results.” (Fireside 

Bank Cases (2010) 187 Cal.App.4th 1120, 1129.) Here, appellants’ expansive 

interpretation of “person” could lead to such absurd results. For example, 

theoretically EBRPD and its Board of Directors, as “persons,” could be subject 

to a lawsuit for a violation of Ordinance 38 when entering into any agreement

with a contracting landscaper to perform maintenance on district land that 

necessitated the removal of any tree, living or dead. We therefore conclude 

the only reasonable interpretation of EBRPD Ordinance 38 is that it does not 

apply to EBRPD’s actions, undertaken pursuant to its statutory authority –

the issuance of Resolution No. 2017-03-065 and the execution of the MOU

with PG&E. 

Because EBRPD’s approval of the MOU was not subject to Ordinance 

38, the second cause of action based on a violation of that ordinance does not 

lie and the demurrer was properly sustained without leave to amend. As we 

have noted, “where the nature of the plaintiff’s claim is clear, and under 

substantive law no liability exists, a court should deny leave to amend 

because no amendment could change the result.” (City of Atascadero, supra, 

68 Cal.App.4th at p. 459.) In light of our determination, we decline to 

address the parties’ other contentions.

D. Dismissal of Third Cause of Action

The amended pleading’s third cause of action seeks relief based on 

allegations that appellants were not given adequate notice and an 

opportunity to be heard before EBRPD approved the MOU, thereby violating 
36

appellants’ due process rights under the California Constitution, article I, 

section 7. This cause of action is premised on the theory that certain land use 

decisions may have such a significant impact on nearby property owners so 

as to constitute a deprivation of property rights in violation of the Due 

Process Clause in the California Constitution, thereby entitling appellants to 

adequate notice and an opportunity to be heard. 

The trial court dismissed this cause of action on the basis that 

appellants did not state a claim for a violation of their constitutional due 

process rights because the pleading failed to allege a general rezoning or 

governmental deprivation of a significant or substantial property interest. In 

denying appellants’ motion to vacate the judgment, the trial court expanded 

on its reasons for dismissal, stating, in pertinent part, that appellants had 

“offered little support” for their conclusion that EBRPD’s approval of the 

MOU was an adjudicatory approval subject to “due process principles.”

On appeal, appellants contend EBRPD’s approval of the MOU is 

“adjudicative” in nature, thereby triggering constitutional due process 

protections of notice and hearing under Horn v. County of Ventura (1979) 24 

Cal.3d 605 (Horn), Scott v. City of Indian Wells (1972) 6 Cal.3d 541 (Scott), 

and Calvert v. County of Yuba (2006) 145 Cal.App.4th 613 (Calvert). We see 

no merit to the contention and a rendition of the facts in Horn, Scott, and 

Calvert, demonstrates why they are clearly inapposite to the case before us. 

At issue in Horn was a county’s approval of the proposed division of a 

property into lots. (24 Cal.3d at p. 610.) The plaintiff alleged that some of 

the proposed subdivided lots were “topographically unsuited for residential 

construction, that the design of the subdivision will hinder access to 

plaintiff’s property thereby creating substantial traffic and parking 

congestion, and that the county’s environmental assessment of the project is 
37

inadequate.” (Id. at p. 611.) Our Supreme Court found that because 

approval of the subdivision constituted a “ ‘quasi-adjudicatory’ ” act of local 

government, those persons affected by such a land use decision were

constitutionally entitled to notice and an opportunity to be heard prior to the 

final decision. (Id. at p. 612.) Scott similarly involved an action seeking to 

void the grant of a conditional use permit allowing construction of a large, 

planned development on land lying just within the city limits; the plaintiffs 

and the class they represented owned neighboring land lying just outside the 

city limits. (6 Cal.3d at p. 544.) Because of the clear administrative and

adjudicatory nature of the use permit procedure, both statutory and 

constitutional provisions called for notice and hearing of adjoining 

landowners who resided in the city. (Id. at pp. 548-549.) The only question 

was whether the city also had to give notice and hearing to similarly situated 

adjoining landowners who lived outside the city boundaries, which was 

answered in the affirmative. (Id. at p. 549.) Finally, Calvert was in regard to

a county’s approval of a mining operator’s request for a “vested rights” 

determination allowing the right to mine “ ‘aggregate’ (sand, gravel and rock 

for construction) from approximately 3,430 acres” in the 10,000 acres of the 

“Yuba Goldfields.” (145 Cal.App.4th at p. 618.) The petitioners were found to 

be constitutionally entitled to notice and hearing as the administrative 

procedure for a “vested rights” determination was similar to the basic 

procedure for determination of a surface mining permit, which was 

concededly “ ‘adjudicatory in nature and therefore subject to notice and 

hearing requirements.’ ” (Id. at pp. 625-626.) Unlike the situations in Horn, 

Scott, and Calvert, concerning “government conduct . . . affecting the 

relatively few” (Horn, supra, 24 Cal.3d at p. 614; italics added), we are here 

concerned with what are “unquestionably” quasi-legislative acts, to which 
38

due process requirements of notice and hearing do not apply. (San Diego 

Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 207, 211 (San 

Diego Bldg. Contractors).) 

When EBRPD’s Board of Directors held a public hearing, issued its 

Resolution No. 2017-03-065 and entered into the MOU with PG&E, it was 

acting under both its expansive statutory authority to control and manage 

district-owned lands (§§ 5541, 5558), and its legislative authority to 

“determine all questions of policy” (§§ 5537, 5547). “Fundamental to this 

conclusion is the proposition that legislative action encompasses more than 

law-making, [because in considering PG&E’s funding request] the board of 

directors plainly was not enacting legislation. But quasi-legislative bodies, 

like the Legislature itself, do far more than their primary function of law[-

]making. . . . For example, they appropriate and borrow money for public 

purposes [citation], they decide when and where the power of eminent 

domain is to be exercised [citation], [and] they decide whether various civic 

improvements are to be made [citation].” (Wilson v. Hidden Valley Mun. 

Water Dist. (1967) 256 Cal.App.2d 271, 278 (Wilson).) Thus, the fact that 

EBRPD’s Board of Directors “was not enacting ordinances embodying rules 

and regulations does not make its actions any less quasi-legislative.” (Id. at 

p. 279)

Additionally, the quasi-legislative nature of the actions of EBRPD’s 

Board of Directors is not impacted by the fact that “the procedure used by the 

board of directors in arriving at its decision embodied characteristics of the 

judicial [or an adjudicative-like] process.” (Wilson, supra, 256 Cal.App.2d at 

p. 279.) “Legislative bodies often act in response to specific petitions and 

with regard to specific parties. [Citations.] [And, like courts, a] Legislature . . 

. exercising quasi-legislative powers commonly resort[s] to the hearing 
39

procedure to uncover, at least in part, the facts necessary to arrive at a sound 

and fair legislative decision.” (Ibid.) “Generally speaking, a hearing on a 

legislative matter is held for the purpose of informing the law makers 

regarding relevant facts and policy considerations; it is not held for the 

protection of individual rights, property or otherwise.” (Bayless v. Limber

(1972) 26 Cal.App.3d 463, 470; see San Diego Bldg. Contractors, supra, 13 

Cal.3d at pp. 207, 211-212 [zoning ordinance establishing a uniform height 

limitation for buildings along the city’s coastline was “unquestionably a 

general legislative act,” to which “due process requirements of notice and a 

hearing did not apply,” even though it might well be anticipated that the 

ordinance would deprive persons of “significant property interests”]; 

Quinchard v. Board of Trustees of Alameda (1896) 113 Cal. 664, 669-670 

[“whether an existing street shall be improved . . . is a question to be 

addressed to the governing body of a municipality in its legislative capacity, 

and its determination upon that question, as well as the character of the 

improvement to be made, is a legislative act”; “[t]he act does not cease to be 

legislative because the members of the city council are required to exercise 

their judgment in determining whether the improvements should be made, 

. . . but is the conclusion or opinion which they form in the exercise of the 

discretionary power that has been [entrusted] to them, and upon a 

consideration of the public welfare and demands for which they are to 

provide”]; Joint Council of Interns & Residents v. Board of Supervisors (1989) 

210 Cal.App.3d 1202, 1207, 1211 [board of supervisor’s approval of contract 

for employment of intern and residents at county facilities was legislative, 

not adjudicatory, act; “the ultimate question of whether the contract should 

be executed was a political one shaped by discretion and public policy”; “ ‘the 

award of a contract, and all of the acts leading up to the award, are 
40

legislative in character’ ”]; Duran v. Cassidy (1972) 28 Cal.App.3d 574, 581-

582 [city council’s decision to build and operate golf course in a public park 

was “essentially legislative in nature” as decision to enter into golf course 

business was a “policy decision”].)

We find both instructive and dispositive the case of Oceanside Marina

Towers Assn. v. Oceanside Community Development Com. (1986) 187 

Cal.App.3d 735 (Oceanside Marina Towers). In Oceanside Marina Towers, 

the plaintiff Oceanside Marina Towers Association (Association) challenged a 

CEQA negative declaration of environmental impact issued by the Oceanside 

Community Development Commission (Commission) and the City of 

Oceanside (City). (Id. at pp. 737-738.) “Members of the Association own[ed] 

and occup[ied] the Marina Towers Luxury Condominiums which [were] 

located near the proposed site of a relocated railroad switchyard. The 

relocation of the switchyard from its current site in downtown Oceanside to

the proposed site on the outskirts of the city [was] a central element in the 

Commission’s downtown redevelopment plan. It [was] the Association’s 

position that the Commission and the City failed to adequately consider the 

adverse environmental impact which the relocated switchyard would have on 

Marina Towers.” (Id. at p. 738.) In dismissing the Association’s cause of 

action based “on the theory articulated in” Horn, supra, 24 Cal.3d 605, the 

Oceanside court reasoned as follows: “In the present case . . . the Commission 

and the City are called upon to consider the interests of nearby property 

owners such as the Association as well as those of property owners and 

businesses in the downtown area who would be benefited by the removal of 

the switchyard, area residents whose access to the downtown area and 

beaches would be improved, and motorists who would benefit from reduced 

traffic congestion. Indirect community factors must also be evaluated such as 
41

the increased tax base a rejuvenated downtown business district might 

create. In sum, the relocation of the switchyard, like any other decision 

regarding the location of a public improvement, requires the assessment of a 

broad spectrum of community costs and benefits which cannot be limited to 

‘facts peculiar to the individual case.’ ” (Oceanside Marina Towers, supra, at 

pp. 746-747, quoting in part, San Diego Bldg. Contractors, supra, 13 Cal.3d at 

p. 212.)

So, too, in this case, the actions of EBRPD’s Board of Directors —

holding its March 21, 2017, public hearing, issuing its Resolution No. 2017-

03-065, and entering into the MOU with PG&E — were all quasi-legislative 

actions, not quasi-adjudicatory ones. The Board of Directors’ decisions were

not limited to a consideration of the interests of nearby property owners such 

as the individual appellants or appellant Save Lafayette Trees and its 

members. Instead, the Board of Directors was tasked with considering

PG&E’s funding request in the context of how the proposed tree removal and 

replacement and future maintenance operations would impact EBRPD’s “ 

‘Core Mission,’ ” to “ ‘maintain a high quality of diverse system of 

interconnected parklands which balances public usage . . . with protection 

and preservation of our natural and cultural resources.’ ” The removal of the 

245 trees as part of the approved project, “like any other decision regarding” 

the maintenance of district land, required the Board of Directors to assess “a 

broad spectrum of community costs and benefits which cannot be limited to 

‘facts peculiar to the individual case.’ ” (Oceanside Marina Towers, supra, 

187 Cal.App.3d at p. 747, quoting in part, San Diego Bldg. Contractors, 

supra, 13 Cal.3d at p. 212.) 

Accordingly, the demurrer to the third cause of action was properly 

sustained without leave to amend as no amendment could change the fact 
42

that EBRPD’s March 21, 2017 public hearing, the approval of Resolution No. 

2017-03-065, and the execution of the MOU with PG&E, were all quasilegislative acts to which constitutional due process rights of notice and 

hearing were inapplicable. Having determined that constitutional due 

process rights of notice and a hearing did not attach to EBRPD’s quasilegislative acts, we are not required and do not determine whether the 

amended pleading sufficiently alleges or could be amended to sufficiently 

allege that appellants suffered a substantial or significant deprivation of 

property rights.

DISPOSITION

The judgment of dismissal and order denying the motion to vacate 

judgment are affirmed. Respondents East Bay Regional Park District and 

Pacific Gas and Electric Company are awarded their costs on appeal.
43

_________________________

Petrou, Acting P.J.

WE CONCUR:

_________________________

Jackson, J.

_________________________

Wiseman J.*

A156150 

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, 

assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
44

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Steven K Austin

Counsel: Law Offices of Stephen C. Volker, Stephan C. Volker, 

Alexis E. Krieg, Stephanie L. Clarke, and Jamey M.B. 

Volker for Petitioners and Appellants.

Shute, Mihaly & Weinberger, Tamara S. Galanter and 

Caitlin F. Brown; East Bay Regional Park District, Carol R. 

Victor and Rachel B. Sater, for Defendant and Respondent. 

SF North Bay Law, Sheryl L. Schaffner as Amicus Curiae 

on behalf of Defendant and Respondent.

Miller Starr Regalia, Arthur F. Coon and George B. Speir, 

for Real Part in Interest and Respondent.