Filed 2/9/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ORGANIZACION COMUNIDAD DE 

ALVISO,

Plaintiff and Appellant,

v.

CITY OF SAN JOSE,

Defendant and Respondent,

MICROSOFT CORPORATION et al.,

Real Parties in Interest and 

Respondents.

 H046458

 (Santa Clara County

 Super. Ct. No. CV321687)

Mark Espinoza, a member of plaintiff Organizacion Comunidad de Alviso, asked 

a planner for the City of San Jose to place him on the public notice list for a proposed 

project which would rezone fallow farmland for light industrial uses. He also twice 

specifically requested a copy of the notice of determination (NOD) documenting the 

city’s certification of an environmental impact report (EIR) and approval of the project––

once after the city council initially approved the project and again after the city council 

denied a motion for reconsideration and re-approved the project. The city filed two 

NOD’s for the project: the first NOD listed the wrong project applicant and a second 

NOD correctly listed Microsoft Corporation. Despite Espinoza diligently and repeatedly 

requesting all notices for the project, the city––inexplicably and in violation of the 
2

California Environmental Quality Act (CEQA)1––failed to send Espinoza the legally 

operative second NOD for the project.

Relying on the first NOD that the city did email to Espinoza, plaintiff named the 

wrong real party in interest in its initial petition for writ of mandate. Plaintiff did not file 

an amended petition naming Microsoft until well after the statute of limitations had run. 

The trial court determined that the initial petition was defective for failing to join 

Microsoft as a necessary and indispensable party, and it dismissed the CEQA cause of 

action in the amended petition as untimely. Had the trial court viewed the equities 

differently in exercising its discretion and determined the CEQA action could continue 

without Microsoft, the result here might be different. But that is not the case we are 

asked to review.

Plaintiff argues on appeal that the trial court applied the incorrect statute of 

limitations, and alternatively that the trial court should have applied either estoppel or the 

relation back doctrine (Code Civ. Proc., § 474) in light of the city’s conduct. We 

acknowledge that the city violated CEQA by failing to send the second NOD to 

Espinoza. But the second NOD was properly filed with the county clerk, it provided 

constructive notice of the correct parties to sue, and plaintiff did not timely amend its 

petition to name Microsoft. Our close examination of the relevant statutes leads us to the 

uncomfortable conclusion that dismissal of the CEQA action was not error, and we must 

affirm the judgment.

I. ADMINISTRATIVE AND TRIAL COURT PROCEEDINGS

Both NOD’s describe the project as follows: “237 Industrial Center. The 

project site, approximately 64.5 acres, is primarily fallow farmland with two singlefamily houses, a mobile home, and farm-related accessory structures located near the 

southern portion of the site. The site is currently supported by well water and a septic 

1

 CEQA is codified at Public Resources Code section 21000 et seq. Unspecified 

statutory references are to the Public Resources Code.
3

tank system. The project includes two development options. Option 1 proposes 

approximately 1.2 million square feet of light industrial development and Option 2 

proposes up to a 436,880 square foot data center (49.5 megawatts) with a PG&E 

substation to provide the electrical needs for the data center on approximately 26.5 acres 

of the site and approximately 728,000 square feet of light industrial development. The 

project (both development options) includes rezoning from A(PD) – Planned 

Development to L1 Light Industrial. Development Option 2 includes a special use permit 

and a development exception for reduced parking requirements.”

Mark Espinoza is a member of plaintiff Organizacion Comunidad de Alviso.

Espinoza emailed the city’s environmental project manager for the project in September 

2017, asking “to be placed on the noticing list and given dates and time[s] of any public 

hearings” for the project. The project manager responded by email the same day, 

providing the dates of the planning commission and city council hearings for the project. 

That same month, Microsoft purchased the property from the original owner (Cilker) and

filed a universal planning application with the city to take over as the project applicant.

The city council initially considered the project and the associated EIR at a 

hearing in October 2017. The city council meeting agenda did not mention Microsoft 

and incorrectly referenced “Cilker Carl A And Kathleen C Trustee” as “Owners.” At the 

hearing, the mayor stated: “Let’s go to the applicant first and then we’ll go to the public. 

Mr. Noble, will you be speaking for Microsoft?” Cilker was referred to at the hearing as

the “previous owner.” Espinoza attended the hearing and commented on the project. The 

city council certified the project EIR; approved the project, including a water supply 

assessment; and imposed a mitigation monitoring and reporting program. 

Espinoza emailed the project manager two days after the October hearing, 

requesting a copy of the NOD. (His first email mistakenly asked for the “NOP,” but he

almost immediately followed up with an email clarifying that he sought the NOD.) The 

project manager responded that someone had moved to reconsider the project approval, 
4

that the city council would have an additional hearing in December 2017, and that the 

city was “waiting until after the hearing to consider filing the NOD.” 

The city council reconsidered and once again approved the project and its 

environmental document in December 2017. Although plaintiff’s opening brief 

acknowledges that the December 2017 “hearing notice included the annotation ‘Property 

Owner: Microsoft,’ ” the city council resolution approving the project still referred to the

Cilkers as “Owners” in the middle of the first paragraph. The first NOD filed by the city

with the county Clerk-Recorder incorrectly lists “Erik Schoennauer for Cilker Orchards 

MGMT Corp” as the project applicant. Espinoza emailed the project manager the day 

after the December hearing asking for the filed notice (again mistakenly referring to the 

notice as an “NOP” rather than an NOD). The project manager responded by email and 

attached the first NOD. 

The city filed a second NOD for the project five days later, correctly showing

Microsoft Corporation as the project applicant. The city did not rescind the first NOD, 

and the second NOD does not refer to it in any way. Despite Espinoza’s earlier requests 

for all project-related notices, the city never sent him the second NOD.

Plaintiff filed its initial petition for writ of mandate within 30 days of the first

NOD, alleging violations of CEQA and the Planning and Zoning Law (Gov. Code, 

§ 65000 et seq.). It named the city as defendant and respondent, and named as real 

parties in interest Cilker Orchards Management Corp. and Erik Schoennauer. Cilker’s 

attorney notified plaintiff’s counsel by letter dated January 31, 2018 (two weeks after the 

30-day statute of limitations expired) that Microsoft had acquired the property and that 

the city had filed a second NOD. 

Plaintiff filed the operative first amended petition for writ of mandate in 

March 2018, over a month after receiving the letter from Cilker’s counsel and more than 

70 days after the second NOD was filed with the county clerk. The amended petition 
5

alleged the same violations, but added Microsoft Corporation and Greg Deeney as real 

parties in interest.

Microsoft and Deeney demurred to the CEQA cause of action in the amended 

petition, arguing that the CEQA action was time-barred because Microsoft and Deeney 

were not added to the case until after the limitations period had run. The city joined in 

the demurrer. Cilker and Schoennauer also demurred to the amended petition, on the 

basis that they were no longer real parties in interest because they had sold the property to 

Microsoft before the project was approved. 

The trial court sustained the Microsoft and Deeney demurrer without leave to 

amend, finding the initial petition defective for failing to join an indispensable party 

(Microsoft), and the CEQA cause of action in the amended petition untimely because 

Microsoft was not sued within 30 days after the second NOD was filed. The trial court 

rejected plaintiff’s estoppel and relation back arguments. The trial court also sustained 

the Cilker and Schoennauer demurrer without leave to amend as to all causes of action. 

After plaintiff voluntarily dismissed its Planning and Zoning Law cause of action, the 

trial court entered a judgment dismissing all parties, from which plaintiff appealed as to 

the city and Microsoft.

II. DISCUSSION

We review de novo a judgment of dismissal after demurrer. (Doan v. State Farm 

General Ins. Co. (2011) 195 Cal.App.4th 1082, 1091 (Doan).) We will reverse the 

dismissal if the allegations in the complaint state a cause of action “under any legal 

theory.” (Ibid.) We assume the truth of all facts alleged in the complaint except for facts 

contradicted by judicially noticeable materials. (Stoney Creek Orchards v. State of 

California (1970) 12 Cal.App.3d 903, 906; SC Manufactured Homes, Inc. v. Liebert 

(2008) 162 Cal.App.4th 68, 82.) 

When a local public agency approves a project and certifies an EIR, it must “file a 

notice of determination within five working days after the approval or determination 
6

becomes final, with the county clerk of each county in which the project will be located.” 

(§ 21152, subd. (a).) “Among other things, the NOD must identify and briefly describe 

the project; identify the lead agency and responsible agency (if applicable); state the date 

of project approval and the agency’s environmental impact determination; report that a 

negative declaration, mitigated negative declaration or EIR has been adopted, and give 

the address where it may be examined; and state whether mitigation measures were 

required as a condition of approval.” (Committee for Green Foothills v. Santa Clara 

County Bd. of Supervisors (2010) 48 Cal.4th 32, 52 (Green Foothills).) 

CEQA’s statutory scheme evidences a clear legislative intent to “ensure extremely 

prompt resolution” of lawsuits claiming violations of the statute. (Stockton Citizens for 

Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500.) A legal challenge to a 

project approval based on a CEQA violation must be commenced within 30 days after the 

date a valid NOD is filed. (§ 21167, subd. (c).) As summarized by the Supreme Court, if 

a “valid NOD has been filed [citations], any challenge to that decision under CEQA must 

be brought within 30 days, regardless of the nature of the alleged violation.” (Green 

Foothills, supra, 48 Cal. 4th at p. 48.) However, if a notice is “materially defective”

because it omits one or more required elements, courts have found a 180-day statute of 

limitations applies. (See id. at pp. 52–53; § 21167, subds. (a), (d).) “The application of a 

statute of limitations based on facts alleged in the complaint is a legal question subject to 

de novo review.” (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 

1340.)

In addition to naming as a defendant the agency that approved the project, a 

petitioner must name as a real party in interest the “person or persons identified by the

public agency” in the NOD. (§ 21167.6.5, subd. (a).) Plaintiff does not dispute that 

Microsoft is both a necessary and indispensable party to this CEQA action. Failure to 

join an indispensable party is a ground for demurrer. (Code Civ. Proc., §§ 430.10, 

subd. (d); 389.) And failure to include a necessary and indispensable party as a real party 
7

in interest within the applicable limitations period is a ground for dismissal. (Sierra 

Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 502; accord Save Our 

Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 699.) 

If a person makes a written request to a public agency, in advance of a specific 

project’s approval, to receive the NOD for the project, “then not later than five days from 

the date of the agency’s action, the public agency shall deposit a written copy of the 

notice addressed to that person in the United States mail, first class postage prepaid.” 

(§ 21167, subd. (f).) But significantly, the “date upon which this notice is mailed shall 

not affect” the statute of limitations. (Ibid.)

A. THE CITY VIOLATED CEQA BY NOT SENDING PLAINTIFF THE SECOND NOD

A public agency must send the relevant notice (here, the second NOD) within five 

days after the project is approved to any person who has “made a written request to the 

public agency for a copy of the notice ... prior to the date on which the agency approves 

or determines to carry out the project.” (§ 21167, subd. (f).) Espinoza emailed the 

project manager a month before the project was initially approved by the city council, 

asking “to be placed on the noticing list and given dates and time[s] of any public 

hearings” for the project. He also asked specifically for the NOD by email to the project 

manager after the project was initially approved in October, and again after the city 

council re-approved the project in December. Despite Espinoza’s requests, the city 

inexplicably failed to send him the second NOD. The city violated section 21167, 

subdivision (f) by failing to do so. But as we will explain, CEQA contains no remedy for 

that violation, and it is not properly our role to create one where the Legislature has not. 

B. PLAINTIFF FAILED TO TIMELY SUE MICROSOFT

It is undisputed that plaintiff did not sue Microsoft until more than 30 days after 

the second NOD was filed with the county clerk. Plaintiff’s addition of Microsoft to the 

case via the amended petition was untimely if a 30-day limitations period applies. 

Plaintiff makes two arguments based on the CEQA statutory scheme to circumvent the 
8

30-day statute of limitations: that the longer 180-day CEQA statute of limitations 

applies; and that plaintiff’s untimely filing should be excused because the city violated 

CEQA by not sending Espinoza the second NOD despite his written request to receive all 

notices related to the project.

When an NOD is materially defective for not including all information required by 

CEQA and the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), courts have 

applied CEQA’s fallback 180-day statute of limitations. (See Green Hills, supra, 

48 Cal.4th at pp. 52–53.) Plaintiff does not claim that anything in the second NOD was 

incorrect or missing. Plaintiff instead suggests that the reasoning of the defective notice 

cases should apply here because the effect of “the City’s posting two NODs containing 

conflicting, contradictory, legally operative information concerning the identity of the 

Project applicant, where it neither rescinded the first NOD nor otherwise publicly 

indicated that it was inaccurate, is that the City never posted a legally adequate NOD at 

all.” That assertion is not supported by the authorities plaintiff cites. The second NOD 

contained all required information and was therefore not defective. As a legally proper 

NOD, it triggered the 30-day statute of limitations to challenge the project. (§ 21167, 

subd. (c).) The trial court therefore correctly concluded that plaintiff’s initial petition was 

defective for failing to name Microsoft, and also that the statute of limitations barred the 

amended petition which was filed more than 30 days after the second NOD was filed. 

Plaintiff argues any failure to timely sue Microsoft is not plaintiff’s fault but the 

city’s, because the city violated section 21167, subdivision (f) when it failed to send

Espinoza the second NOD as he had requested.

2

 We agree that the city violated CEQA 

2

 Plaintiff also suggests the city violated the notice requirements of 

section 21092.2, subdivision (a), but that section applies only to individuals who have 

“filed a written request for notices with either the clerk of the governing body or, if there 

is no governing body, the director of the agency.” (§ 21092.2, subd. (a).) There is no 

evidence any member of plaintiff’s organization requested notices from either of those 

officials.
9

by not sending the second NOD. But that violation cannot excuse or cure the amended 

petition’s untimeliness because section 21167, subdivision (f) itself provides that the 

“date upon which [the NOD] is mailed shall not affect” the statute of limitations to 

commence a CEQA action. The NOD is the limitations trigger under CEQA. The 

Supreme Court has made clear that it is the “responsibility of potential litigants to review 

these notices, and any revisions, with care.” (Green Hills, supra, 48 Cal.4th at p. 54.) 

Although the city failed to send the second NOD to Espinoza, that NOD was duly filed 

with the county clerk and available for review by all potential litigants before plaintiff 

filed its initial petition. It is not for us to legislate a remedy for the city’s violation of 

section 21167, subdivision (f), particularly where the remedy plaintiff seeks would 

conflict with express provisions of that very statute.

Plaintiff claims, without citation to authority, that while the “mere posting of a 

NOD at the County Clerk’s office may work to provide constructive notice to the public 

generally, it cannot work to provide actual or constructive notice to a party who has 

properly requested the NOD” under section 21167, subdivision (f). The argument is 

contrary to settled principles of filed notices providing constructive notice to all potential 

litigants. (Stockton Citizens for Sensible Planning v. City of Stockton, supra,

48 Cal.4th 481, 502.) We also note that plaintiff appears to have had actual notice of 

Microsoft’s status well before the limitations period expired. Plaintiff’s members 

participated in city council hearings at which Microsoft was identified as the property 

owner, and the public notice for the December hearing listed Microsoft as the owner.

Plaintiff complains that affirming the judgment will force future CEQA petitioners 

to “make repeated trips to the County Clerk’s office to check for newly posted notices, or 

make repeated requests to agency officials, just to ensure that no superseding NOD was 

ever posted.” We observe that notices of the sort at issue here are increasingly available 

electronically which facilitates public access to them. We nonetheless understand and 

share plaintiff’s frustration at not being able to rely on the environmental document sent 
10

by the city in response to specific requests. That said, the Legislature has identified the 

NOD as the trigger for the statute of limitations, and the Supreme Court has emphasized 

that potential litigants must pay close attention to those filings before initiating litigation. 

We conclude, therefore, that the trial court properly applied the foregoing standards and 

did not err in finding plaintiff’s amended petition untimely under CEQA.

C. THE RELATION BACK DOCTRINE 

Plaintiff argues the trial court erred by not applying the relation back doctrine of 

Code of Civil Procedure section 474 to allow it to substitute Microsoft in place of one of 

the fictitiously named Doe real parties in interest. “When the plaintiff is ignorant of the 

name of a defendant, he must state that fact in the complaint, or the affidavit if the action 

is commenced by affidavit, and such defendant may be designated in any pleading or 

proceeding by any name, and when his true name is discovered, the pleading or 

proceeding must be amended accordingly.” (Code Civ. Proc., § 474.) A plaintiff’s 

ignorance must be genuine and based on a lack of knowledge of the defendant’s 

connection with the case. (General Motors Corp. v. Superior Court (1996) 

48 Cal.App.4th 580, 594.) If a plaintiff satisfies those requirements, the amendment 

relates back to the filing of the original petition or complaint such that the “statute of 

limitations stops running as of the date the original complaint was filed.” (Id. at p. 589.) 

Trial courts also have discretion, “in furtherance of justice, and on any terms as may be 

proper, [to] allow a party to amend any pleading or proceeding by adding or striking out 

the name of any party.” (Code Civ. Proc., § 473, subd. (a)(1).) 

As we have discussed, the statute of limitations to challenge the adequacy of an 

EIR begins to run when a valid NOD is filed. We acknowledge the city’s notices and 

project-related documents, both at the planning stage and in the first NOD, sometimes 

referenced the former project applicant instead of Microsoft. But the legally operative 

second NOD, which was filed with the county clerk and readily available to potential 

litigants, correctly referred to Microsoft. The city’s filing of the second NOD with the 
11

county clerk provided constructive notice of Microsoft’s identity precluding plaintiff’s 

ability to claim genuine ignorance. There is also evidence that plaintiff (through 

individual members) likely had actual notice that Microsoft was referred to as the project 

applicant during at least one public hearing on the project and in the public notice of the 

second approval hearing. And plaintiff received actual notice of the second NOD from 

Cilker’s attorney in January 2018. Despite learning about the second NOD by the end of

January 2018 at the latest, plaintiff did not file its amended petition until March 2018 – a 

delay longer than even the initial limitations period. Given the constructive and likely 

actual notice of Microsoft’s identity as the project applicant, any claim of plaintiff’s 

ignorance of that status is unreasonable as a matter of law.

Plaintiff points to no case in which the relation back doctrine has been allowed 

where a party had constructive notice of the identity of a fictitiously named defendant. 

Plaintiff cites Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670 using the 

following parenthetical summary: “amended CEQA writ petition filed after 30-day 

limitations period relates back to date [of] original petition’s timely filing, where no 

change to ‘basic set of facts’ and amendment only addressed party identities.” Plaintiff

omits the crucial detail that the substituted party in Garrison was a plaintiff, not a 

defendant or real party in interest. (Id. at p. 1678 [noting the “notice policy [of the statute 

of limitations] was therefore satisfied [because the defendant] received notice of the 

nature of the action within the 30-day limitations period”].) 

Plaintiff also argues without citation “the burden is on a defendant asserting a 

statute of limitations defense to prove that a petitioner ‘knowingly acted in bad faith and 

that actual prejudice to the substituted party occurred due to the timing of the 

substitution.’ ” We have been unable to locate any authority containing the language 

quoted by plaintiff. To the contrary, even one of plaintiff’s own authorities contains this 

statement: “[I]f the identity ignorance requirement of [Code of Civil Procedure] 

section 474 is not met, a new defendant may not be added after the statute of limitations 
12

has expired even if the new defendant cannot establish prejudice resulting from the 

delay.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177.) We see no error in not 

applying Code of Civil Procedure section 474.

D. ESTOPPEL 

Plaintiff argues the city and Microsoft should have been equitably estopped from

asserting the statute of limitations defense. To rely on the doctrine of equitable estoppel, 

plaintiff must show: (1) the city knew about the second NOD; (2) the city intended to 

keep plaintiff from learning about the second NOD by sending Espinoza the first NOD 

and failing to send him the second NOD; (3) plaintiff did not know about the second

NOD; and (4) plaintiff detrimentally relied on Espinoza not receiving the second NOD 

despite his written request. (See Feduniak v. California Coastal Com. (2007) 

148 Cal.App.4th 1346, 1359.) When, as here, equitable estoppel is alleged against a 

public entity, the plaintiff must also show that the “injustice which would result from a 

failure to uphold an estoppel is of sufficient dimension to justify any effect upon public 

interest or policy which would result from the raising of an estoppel.” (City of Long 

Beach v. Mansell (1970) 3 Cal.3d 462, 496–497.) The “existence of an estoppel is 

generally a question of fact” (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 

266), but estoppel can be denied if the asserted reliance was unreasonable as a matter of 

law. (Penn-Co v. Board of Supervisors (1984) 158 Cal.App.3d 1072, 1081.)

Even assuming arguendo that the city’s failure to send Espinoza the second NOD 

was intentional rather than inadvertent, plaintiff’s reliance on that failure would be

unreasonable as a matter of law. As with our discussion of the relation back doctrine, 

plaintiff’s equitable estoppel argument fails because the city’s timely filing of the second

NOD with the county clerk gave constructive notice to all potential litigants of the correct 

parties to name in a CEQA action. Citizens for a Responsible Caltrans Decision v. 

Department of Transportation (2020) 46 Cal.App.5th 1103, cited by plaintiff, is factually 

distinguishable. In that case a state agency promised a citizens group it would circulate 
13

an EIR and file an NOD, but it instead filed a notice of exemption for the project, which 

the citizen’s group did not become aware of until after the applicable statute of 

limitations had run. Finding that the agency was equitably estopped from asserting a 

time bar on demurrer, the appellate court stated, “Caltrans knew of its position that the 

Project was exempt from CEQA and would approve the Project and file an NOE, but 

nevertheless made misrepresentations to CRCD and the public, as described ante, that it 

would approve the Project only after circulation of the FEIR and then would file an NOD 

in compliance with CEQA.” (Id. at p. 1133.) In contrast here, the city’s failure to 

provide individual notice to Espinoza did not affect the fundamental process followed nor 

the filing of public notice of that process (in the form of the second NOD).

E. LEAVE TO AMEND

A trial court abuses its discretion when it sustains a demurrer without leave to 

amend if there is a reasonable possibility any defect identified by the defendant can be 

cured by amendment. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) 

Plaintiff argues the trial court should have allowed leave to amend the petition to assert 

estoppel against the city, and to allege that the city violated section 21167, subdivision (f) 

by failing to send Espinoza the second NOD. 

As we have explained, the elements of estoppel are not met here, and the city’s

violation of section 21167, subdivision (f) did not affect the requirement to name

Microsoft as a real party in interest before the limitations period expired. As neither of 

plaintiff’s proposed amendments would cure the failure to timely sue Microsoft, the trial 

court did not abuse its discretion by sustaining the demurrer without leave to amend.

III. DISPOSITION

The judgment of dismissal is affirmed. Each party shall bear its own costs on 

appeal.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Danner, J. 

H046458 - Organizacion Comunidad De Alviso v. City of San Jose
Trial Court: Santa Clara County Superior Court

Case No. CV321687

Trial Judge: Hon. Helen E. Williams 

Counsel for Plaintiff/Appellant 

ORGANIZACION COMUNIDAD 

DE ALVISO 

Mark Raymond Wolfe

M. R. Wolfe & Associates, P. C. 

Counsel for Defendant/Respondent 

CITY OF SAN JOSE 

Margo Laskowska

Office of the City Attorney

City of San Jose 

Real Party in Interest/Respondent

MICROSOFT CORPORATION

Arthur F. Coon

Matthew C. Henderson

Miller, Starr & Regalia