The opinion
Filed 6/5/26
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
MARK BAKER,
Plaintiff and Appellant,
A174642
v.
BAY AREA TOLL AUTHORITY, (City & County of San Francisco
Super. Ct. No. CPF25519079)
Defendant and Respondent;
ILLUMINATE THE ARTS,
Real Party in Interest.
The Bay Lights 360 is the third iteration of an LED light art
installation on the San Francisco Bay Bridge funded by real party in interest
Illuminate the Arts (Illuminate). And this is the second iteration of litigation
by Mark Baker challenging Bay Area Toll Authority’s (BATA) approval of the
project under the California Environmental Quality Act (CEQA)
(Pub. Resources Code, § 21000 et seq.; see Pub. Resources Code, § 21050).1
In Baker’s first lawsuit, the trial court entered judgment after
sustaining BATA’s demurrer based on the statute of limitations. Baker did
not appeal, but filed this action founded on new allegations about a permit
issued to implement the Bay Lights 360 project. BATA again demurred, and
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts II(A) and II(C).
1 Undesignated section references are to CEQA provisions codified in
Public Resources Code sections 21000–21177.
1
the trial court sustained its demurrer without leave to amend, finding the
new allegations did not restart the statute of limitations and Baker was
precluded from relitigating the arguments resolved against him in the first
action. We affirm.
I. BACKGROUND
As alleged by Baker, the Bay Lights art installation began in 2012. In
earlier versions of the project, LEDs were installed on the exterior of the Bay
Bridge’s suspension cables. Bay Lights 360 adds inward, driver-facing lights,
approximately doubling the number of LEDs.
BATA is the CEQA lead agency for Bay Lights 360, and the California
Department of Transportation (Caltrans) is a responsible agency.2 Beginning
in 2012, BATA filed notices of exemption declaring each iteration of the Bay
Lights exempt from the requirements of CEQA. It filed a notice of exemption
as to Bay Lights 360 in August 2023.
In October 2024, Caltrans issued an encroachment permit conditionally
approving BATA’s plan to install Bay Lights 360 and requiring a “conditional
study and evaluation” of the inward-facing lights to determine whether they
would adversely affect motorists. The encroachment permit stated that the
interior lights must not be activated until a comprehensive safety test was
developed and completed, and those lights must not be activated for testing
2 “The lead agency is the ‘public agency which has the principal
responsibility for carrying out or approving a [CEQA] project . . . .’ (§ 21067.)”
(Marina Coast Water Dist. v. County of Monterey (2023) 96 Cal.App.5th 46,
59, fn. 10.) A “responsible agency” is another agency with responsibility for
those functions. (§ 21069.) “The lead agency has a primary role in assessing
whether an [environmental impact report] is required and in preparing and
certifying the” report. (Marina Coast Water Dist., supra, 96 Cal.App.5th at
p. 59, fn. 10.) “A responsible agency bears ‘responsibility for mitigating or
avoiding only the . . . environmental effects of those parts of the project which
it decides to carry out, finance, or approve.’ ” (Ibid., citations omitted.)
2
or display unless approved via a rider to the permit, which had not issued at
the time Baker filed this action.
A. Baker’s First CEQA Action
Baker is “the President of the Soft Lights Foundation and advocates for
the protection of individuals who are adversely impacted by LED light.” In
December 2024, he filed his original petition for writ of mandate and
complaint against BATA (along with Caltrans and other agencies), seeking
relief under CEQA and asserting other causes of action concerning Bay
Lights 360. Baker alleged that BATA’s 2023 notice of exemption was
“unjustified” because Bay Lights 360 had not received “formal approval” and
BATA and the other agencies had not completed a “full [environmental
impact report] and CEQA analysis.”
BATA demurred, including on the ground that Baker’s CEQA claim
was barred by the statute of limitations. In April 2025, the trial court
sustained BATA’s demurrer without leave to amend as to each of Baker’s
claims.3 The court concluded that the CEQA claim was barred by both a 35-
day statute of limitations triggered by the 2023 notice of exemption and a
180-day statute of limitations running from BATA’s decision to approve or
carry out the Bay Lights 360 project, which the court ruled was made “no
later than early 2023.” (§ 21167, subd. (d).) Judgment entered in the first
action in May 2025. Baker did not appeal.
B. The Present Lawsuit and the Trial Court’s Ruling
Just after the trial court ruled in the first action, Baker filed the
present action asserting a single CEQA claim against BATA. This time, his
3 Baker’s claims against Caltrans and another agency were resolved
against him in the same order, and he voluntarily dismissed a fourth agency
from the case.
3
allegations focused on the encroachment permit issued by Caltrans, which he
claimed to have received in April 2025 through a public records request.
Baker alleged that “[d]epending upon how it is designed and implemented,
the safety study” described by the permit “itself has the potential to cause
significant adverse impacts on the environment” that were “not
acknowledged” in the 2023 notice of exemption; therefore, “testing of the
lights must be recognized as a stand-alone project under CEQA—one that
does not qualify for a categorical exemption.” Baker sought a judgment
declaring the safety study to be a discrete project for CEQA purposes and
directing BATA to prepare an environmental impact report for that project.
BATA again demurred. It argued that the encroachment permit did
not give rise to a new project for CEQA purposes or restart the statute of
limitations for CEQA challenges to Bay Lights 360. Baker’s claim remained
time-barred—and he was barred from relitigating that issue by the preclusive
effect of the trial court’s ruling in the first action. In response, Baker revived
his argument from the prior litigation that the 2023 notice of exemption “was
filed without BATA ever having issued a Resolution approving the Project.”
He further argued that the encroachment permit “dramatically altered the
scope” of the project so that a new environmental impact report was required
and the 2023 notice of exemption was “moot.”
The trial court sustained BATA’s demurrer without leave to amend.
The court found its prior determinations as to when the Bay Lights 360
project was approved for CEQA purposes and when the statute of limitations
had expired were preclusive where Baker failed to appeal those rulings. The
court also found that the encroachment permit and safety study concerned
the existing Bay Lights 360 project, and Baker offered “no factual allegations
demonstrating that th[e] study significantly changed the scope of the
4
Project.” Neither the encroachment permit nor the study restarted the
statute of limitations. The court entered judgment in favor of BATA in
October 2025.4
II. DISCUSSION
A. Motions and Requests
Before turning to the merits of Baker’s appeal, we address several
motions and requests concerning the scope of the appellate record and other
matters.
First, Baker’s appendix includes documents filed in his first CEQA
action against BATA, which is improper. (See Aixtron, Inc. v. Veeco
Instruments Inc. (2020) 52 Cal.App.5th 360, 381 [appendix must be limited to
documents filed in the matter under appeal], disapproved on another ground
by Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 647.) We
accordingly grant BATA’s motion to correct the record to exclude these
documents. (Cal. Rules of Court, rule 8.155(c).) But many of the record
documents from the first action are relevant to the issues raised in this
appeal. We consider their existence and the trial court rulings they reflect by
taking judicial notice of the following documents from the first action on our
own motion: the complaint, BATA’s demurrer, Baker’s opposition to the
demurrer, and the trial court’s order sustaining the demurrer without leave
to amend.5 (Evid. Code, §§ 452, subd. (d), 459; Aixtron, supra, 52 Cal.App.5th
at p. 382.) We also grant BATA’s unopposed request for judicial notice of
4 Baker filed his notice of appeal before judgment entered, but we
exercise our discretion to treat the notice as if it were filed immediately after.
(Cal. Rules of Court, rule 8.308(c).)
5 The parties were invited to present information relevant to these
judicially noticed items during oral argument. (Evid. Code, §§ 455, 459; see
Haydon v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1291, fn. 5.)
5
documents in Baker’s appendix that were the subject of judicial notice by the
trial court in the present action: the 2023 notice of exemption, the judgment
in the first action, and the 2024 Caltrans encroachment permit. (Evid. Code,
§§ 452, subds. (c) & (d), 459.)
We do not consider the uncertified administrative record prepared by
Baker. While there is a process by which a CEQA plaintiff or petitioner may
request to prepare the administrative record “by providing a notice of the
election to the public agency,” the record remains “subject to certification of
its accuracy by the public agency” within the deadline provided by the
statute. (§ 21167.6, subd. (b)(2).) The public agency may also deny the
plaintiff’s request, which BATA did here. (Id., subd. (b)(3).) The
administrative record prepared by Baker is not properly before us.
We deny Baker’s November 2025 request for judicial notice of emails
and a news article from the uncertified administrative record, which were not
otherwise presented to the trial court. (See In re Kenneth D. (2024)
16 Cal.5th 1087, 1106 [“ ‘ “Reviewing courts generally do not take judicial
notice of evidence not presented to the trial court” absent exceptional
circumstances’ ”].) We likewise deny Baker’s motion to augment the record to
include a CEQA re-validation form concerning Bay Lights 360 dated July
2023 and a rider to the Caltrans encroachment permit dated September 2025.
(See ibid. [“ ‘[a]ugmentation does not function to supplement the record with
materials not before the trial court’ ”]; Cal. Rules of Court, rule 8.155(a)(1)
[authorizing motion to augment the appellate record to include documents
filed or lodged in the trial court].) In any case, none of these new documents
are ultimately relevant to the issues we decide below.
We deny Baker’s motion for leave to file a supplemental opening brief
raising a new argument about the facial validity of the 2023 notice of
6
exemption. Baker fails to cite legal authority to support his argument that
BATA’s asserted violation of a Caltrans manual—a document that was not
before the trial court—rendered the notice invalid, forfeiting the argument.
(See Coziahr v. Otay Water Dist. (2024) 103 Cal.App.5th 785, 799 [“[p]oints
must be supported by reasoned argument, authority, and record citations, or
may be deemed forfeited”].) Baker’s belated “realization” of a potential new
argument based on the Caltrans manual does not establish good cause to
authorize supplemental briefing on that still-undeveloped point. (See
People v. Lewis (2025) 111 Cal.App.5th 1078, 1099 & fn. 7 [appellate court
does not develop appellants’ arguments for them; rejecting still-
underdeveloped argument offered in reply brief].) The same is true regarding
Baker’s undeveloped and unsupported assertions of fraud raised in his
February, March, and April 2026 requests for judicial notice. We deny each
of those requests, which again largely concern documents not before the trial
court.
Furthermore, we deny BATA’ s motion for sanctions in connection with
Baker’s March 2026 request for judicial notice. Still, we remind Baker that
“[d]espite his self-representation, we hold [him] to the same standard as an
attorney” when it comes to following rules of procedure and professional
conduct and refraining from “ ‘abusive litigation tactics.’ ” (Sheerer v. Panas
(2026) 119 Cal.App.5th 367, 370.) We may impose sanctions for the filing of
frivolous motions, among other grounds (Cal. Rules of Court,
rule 8.276(a)(3)), and Baker’s frequent and often repetitive filings are
entering that territory.
We likewise deny Baker’s motion for an order disqualifying BATA’s
counsel. Baker’s disagreement with BATA’s legal arguments and view that
certain documents concerning Bay Lights 360 are inconsistent with one
7
another do not come close to showing a “manifest and glaring” ethical
violation that could potentially support a motion to disqualify opposing
counsel with whom the moving party never had an attorney-client or other
confidential or fiduciary relationship. (See Moreci v. Scaffold Solutions, Inc.
(2021) 70 Cal.App.5th 425, 433–436, 444.)
Finally, each party argues the other should be subject to sanctions for
misconduct in the preparation of the record on appeal or the administrative
record, but neither complied with the required procedure for requesting
sanctions on appeal in this context. (See Cal. Rules of Court, rule 8.54(a)(1)
[“a party wanting to make a motion in a reviewing court must serve and file a
written motion”]; id., rule 8.276 [party seeking appellate sanctions must file a
motion for sanctions and supporting declaration].) We decline to consider
imposing sanctions on this ground. (See Barrera v. Apple American Group
LLC (2023) 95 Cal.App.5th 63, 96 [noncompliance with required procedure is
grounds to deny requests for appellate sanctions].)
B. Legal Background
1. CEQA Exemption Determinations
“ ‘With narrow exceptions,’ ” CEQA requires a public agency to prepare
an environmental impact report whenever it “ ‘proposes to approve or to carry
out a project that may have a significant effect on the environment.’ ” (Sierra
Club v. County of Fresno (2018) 6 Cal.5th 502, 511.) But “[f]or policy reasons,
the Legislature has expressly exempted several categories of projects from
review under CEQA. (See § 21080, subds. (b)(1)–(15).)” (Berkeley Hillside
Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1092.) The CEQA
Guidelines also “establish ‘a list of classes of projects that have been
determined not to have a significant effect on the environment and that [are]
8
exempt from’ CEQA.”6 (Ibid.; § 21084, subd. (a).) These include the
exemption claimed by BATA here: “the operation, . . . leasing, licensing, or
minor alteration of existing public or private structures, . . . involving
negligible or no expansion of existing or former use.” (CEQA Guidelines,
§ 15301.)
The CEQA lead agency is “responsible for determining whether the
project is exempt from” CEQA. (§ 21080.1, subd. (a).) “That determination
shall be final and conclusive on all persons, including responsible agencies,
unless challenged as provided in” the CEQA statute. (Ibid.) Agency staff
may determine a project is exempt from CEQA, even where other
decisionmakers are responsible for approving the project. (See McCann v.
City of San Diego (2021) 70 Cal.App.5th 51, 84 (McCann).) “[T]here is no
requirement that [an] agency put its exemption decision in writing” or
otherwise comply with CEQA’s procedural requirements in making this
decision. (San Lorenzo Valley Community Advocates for Responsible
Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th
1356, 1384–1386.)
2. Relevant Statutes of Limitations
While not required, “an agency may file a ‘notice of exemption’ . . . to
start a 35-day statute of limitations period” to bring an action challenging its
6 “The term ‘CEQA Guidelines’ refers to the regulations for the
implementation of CEQA authorized by the Legislature
(Pub. Resources Code, § 21083), codified in title 14, section 15000 et seq. of
the California Code of Regulations, and ‘prescribed by the Secretary for
Resources to be followed by all state and local agencies in California in the
implementation of [CEQA].’ (CEQA Guidelines, § 15000.) In interpreting
CEQA, we accord the CEQA Guidelines great weight except where they are
clearly unauthorized or erroneous.” (Muzzy Ranch Co. v. Solano County
Airport Land Use Com. (2007) 41 Cal.4th 372, 380, fn. 2.)
9
“decision that the project is exempt from CEQA. (§ 21167, subd. (d); [CEQA]
Guidelines, § 15062, subd. (d).)” (McCann, supra, 70 Cal.App.5th at pp. 81–
82.) A notice of exemption “may be prepared by staff when the exemption
determination is made, but it may not be filed until after the project is
approved. ([CEQA] Guidelines, § 15062, subd. (b).)” (Id. at p. 82, fn. 16.)
“If the public agency does not file a notice of exemption, or if it files an
invalid or premature notice of exemption, any legal challenge to the
exemption finding must be filed within 180 days of project approval or, if
there is no formal project approval, within 180 days from the date of
commencement of the project. ([] § 21167, subd. (d); [CEQA] Guidelines,
§§ 15062, subd. (d), 15112, subd. (c)(5).)” (Committee to Relocate Marilyn v.
City of Palm Springs (2023) 88 Cal.App.5th 607, 631 (Committee to Relocate
Marilyn).) “[A] plaintiff is deemed to have constructive notice of a potential
CEQA violation on all three alternative dates of accrual,” such that the
discovery rule does not apply to postpone the accrual of a CEQA claim.
(Communities for a Better Environment v. Bay Area Air Quality Management
Dist. (2016) 1 Cal.App.5th 715, 722, 725 (Communities for a Better
Environment).) However, “ ‘if substantial changes are made to the “project”
after the . . . [notice of exemption] filing or approval by the agency, a “new”
180-day period may begin to run from the time a plaintiff knew or should
have known the project substantially differed from the original “project.” ’ ”
(Committee to Relocate Marilyn, supra, 88 Cal.App.5th at p. 631.)
3. Standard of Review
“ ‘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.’ ” (Save Lafayette Trees v. East Bay Regional Park Dist. (2021)
10
66 Cal.App.5th 21, 35 [affirming ruling that CEQA claim was barred by the
statute of limitations].) “ ‘[W]e also consider facts of which the trial court
properly took judicial notice,’ ” and may disregard contrary allegations.
(Ibid.)
Where “the trial court dismisses an action and denies leave to amend,
‘ “we must decide whether there is a reasonable possibility the plaintiff could
cure the defect with an amendment.” ’ ” (Communities for a Better
Environment, supra, 1 Cal.App.5th at p. 722.) “ ‘The burden is on the
plaintiff to show in what manner the pleading could be amended and how the
amendment would change the legal effect of the pleading.’ ” (Ibid.)
C. Allegations Regarding the Encroachment Permit/Safety Study
Consistent with his pleading in this action, Baker claims the
encroachment permit issued by Caltrans in October 2024 (and discovered by
him in April 2025) “imposed major new safety and scope requirements that
were not part of the project contemplated by” the 2023 notice of exemption.
He does not develop this argument in his opening brief, and we are not
required to address the several points raised for the first time in his reply
brief. (See People v. Dunn (2025) 18 Cal.5th 129, 183, fn. 13 [“ ‘We need not,
and typically do not, address arguments raised for the first time in a reply
brief.’ ”].) Still, exercising our discretion to do so, Baker’s arguments fail.
The CEQA Guidelines explain that a CEQA “project” is “ ‘the whole of
an action’ ” undertaken by a public agency (CEQA Guidelines, § 15378,
subd. (a)), “ ‘which may be subject to several discretionary approvals by
governmental agencies. The term “project” does not mean each separate
governmental approval.’ (CEQA Guidelines, § 15378, subd. (c).)” (County of
Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657, 669; see also Citizens
for a Better Eureka v. City of Eureka (2025) 111 Cal.App.5th 1114, 1125 [the
11
CEQA action “ ‘ “is not the approval itself but the development or other
activities that will result from the approval” ’ ”].) To determine whether an
activity is a component of a CEQA project, we ask whether it is “ ‘among the
“various steps which taken together obtain [the project proponent’s]
objective” ’ ” or whether it is “ ‘part of a coordinated endeavor’ ” to effectuate
the project. (POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52,
74–75 & fn. 15.)
Here, the trial court correctly explained that the encroachment permit
and the safety study it describes “facilitate[] installation of the same LED
fixtures described in the 2023” notice of exemption. The notice describes the
three main components of Bay Lights 360 as (1) “the extension of the light
sculpture for another 10 years”; (2) “the replacement of the light fixtures with
newly updated and more robust fixtures . . .”; and (3) “the addition of light
fixtures to the driver’s (inward-facing) side” of the Bay Bridge’s suspension
cables. The encroachment permit grants permission to “[e]ncroach within
[the] State’s right-of-way to remove the existing 24,000 LED fixtures and
install 48,000 small . . . LED light fixtures to the suspender cables.” There is
no dispute that these are descriptions of the same project. The more specific
requirements discussed in the encroachment permit are steps to accomplish
the single objective shared by the Bay Lights 360 project and the
encroachment permit: the installation and operation of the new lights. Baker
fails to allege or explain how operating the lights for purposes of an initial
safety study or coordinating with different agencies to install and operate the
project are anything other than steps in a coordinated endeavor to implement
the project.7
7 Relying on an internal Caltrans memorandum dated July 2024, Baker
claims Caltrans directed BATA to “revalidate” the CEQA exemption for Bay
12
Committee to Relocate Marilyn is not to the contrary. There, the project
described by the notice of exemption was the placement of a statue within an
existing street, which the notice declared would require “ ‘vacat[ing] the
public’s vehicular access rights’ ” to part of the street. (Committee to Relocate
Marilyn, supra, 88 Cal.App.5th at p. 632.) Later, the agency “elected not to
proceed with a [permanent] vacation process,” but to close the street
temporarily instead. (Ibid.) As the Court of Appeal explained, this was a
substantial change: the materially different “duration” of the vehicular access
restrictions “surely could have significantly different environmental impacts.”
(Id. at p. 634.) Irrespective of the agency’s belief that the new approach
would “be less impactful to the environment,” the public was entitled “to
evaluate the changed project for itself.” (Id. at p. 635.) Moreover, “the project
description in the notice of exemption (street vacation) could have induced
members of the public to refrain from” promptly challenging the project,
Lights 360—which, according to Baker, shows Caltrans believed the original
exemption determination was insufficient or that the project, at some point,
had substantially changed. But the memorandum states that Illuminate (not
BATA) is required to revalidate the exemption “[b]efore approval of an
encroachment permit for installation.” Whatever the memorandum author
meant by this—and her view does not impact our de novo review of the trial
court’s demurrer analysis—Caltrans approved the encroachment permit
several weeks after the date on the memorandum, suggesting it deemed any
such requirement satisfied rather than unsatisfied. In any case, Baker did
not seek judicial notice of this document in the trial court or in this court: he
just attached it to a trial court brief concerning the deadline to certify the
administrative record. We decline to consider the memorandum. (See
Lindstrom v. California Coastal Com. (2019) 40 Cal.App.5th 73, 103, fn. 31
[declining to take judicial notice of documents unaccompanied by a formal
request and irrelevant to resolution of the appeal].) We likewise decline to
consider arguments based on Baker’s unsupported assertions during oral
argument that efforts to activate the driver’s side lights have been blocked or
abandoned due to unsatisfied safety testing requirements.
13
believing the agency would be unable “to make the findings necessary to
vacate the street”—which was the very reason the agency ultimately changed
course to a temporary closure. (Ibid.)
There are no similar circumstances here. BATA’s coordination with
Caltrans and other agencies and Caltrans’s requirement of a safety study to
implement the Bay Lights 360 project do not change or contradict anything in
the notice of exemption but are merely steps towards the installation and
operation of the new lights. These steps are akin to those addressed by Van
de Kamps Coalition v. Board of Trustees of Los Angeles Community College
Dist. (2012) 206 Cal.App.4th 1036 (Van de Kamps), where the Court of
Appeal affirmed a ruling on demurrer that a CEQA claim was time-barred.
The appellate court held the statute of limitations was triggered by the
agency’s initial approval of a project to lease a site to third parties. (Id. at
p. 1046.) It rejected the appellant’s argument “that a new limitations period
was triggered by the [subsequent] execution of the lease . . . , because it was
only at that point” that the project’s actual “traffic impacts would be
realized.” (Id. at p. 1048.) The court observed that those impacts were
already contemplated when the project was approved. (Ibid.) So too here:
whatever traffic and related impacts might result from installing and
operating Bay Lights 360 for safety testing will equally result from installing
and operating the project on an ongoing basis. Baker’s vague and speculative
argument to the contrary cannot transform the installation and testing of the
Bay Lights 360 project itself into a new or substantially different project.
(See id. at pp. 1047, 1050–1051 [rejecting additional theory that approval of a
balcony and driveway triggered a new statute of limitations where “appellant
failed to allege what additional or changed impacts resulted from” those
14
projects “that had not already been considered” during the overall project
approval].)
The trial court correctly determined that the encroachment permit and
the safety study it describes are components of the overall Bay Lights 360
project, and do not constitute a new project or a substantial change to the
project under CEQA. Since this is the only theory Baker alleged in the
present action, the court properly sustained BATA’s demurrer.
D. Leave to Amend: Issues Actually Litigated in Baker’s First Action
Despite limiting his allegations in the present action to focus on the
Caltrans encroachment permit and safety study, in his appellate briefing,
Baker presents extensive argument about the validity of the 2023 notice of
exemption, the timing of BATA’s approval of the overall Bay Lights 360
project, and the statute of limitations applicable to a CEQA challenge to that
larger project. He took the same approach in the trial court proceedings; the
court determined its prior rulings precluded Baker from relitigating these
issues and sustained BATA’s demurrer without leave to amend.
As we will explain, we agree with the trial court that Baker is
precluded from raising the same arguments concerning the statute of
limitations that were actually litigated in his first CEQA action. And Baker
has offered no other theory establishing a reasonable possibility he could
allege facts showing his CEQA challenge to Bay Lights 360 was timely. We
consequently affirm the trial court’s ruling denying Baker leave to amend his
CEQA claim.
1. Relevant Legal Principles
“The law of preclusion helps to ensure that a dispute resolved in one
case is not relitigated in a later case.” (Samara v. Matar (2018) 5 Cal.5th
15
322, 326 (Samara).)8 “[T]he doctrine has ancient roots,” and “its contours
. . . have evolved over time.” (Ibid.) Adding to this complexity, rules of
preclusion are “inextricably intertwined with rules of procedure.” (Id. at
p. 332.) This reflects a balance between the reality that, at some point,
“finality ‘has to be accepted if . . . there is to be practical meaning to the idea
that legal disputes can be resolved by judicial process’ ” and the core principle
that “ ‘[t]he “chance” to litigate is not simply some unspecified opportunity for
disputation over legal rights; it is the opportunity to submit a dispute . . . to a
tribunal legally empowered to decide it according to definite procedural
rules.’ ” (Ibid. [quoting from the Restatement Second of Judgments,
Introduction].) A key procedure in this regard is “[t]he availability of a direct
appeal,” which reflects an assessment that trial court proceedings generating
a disputed decision are “not sufficient to resolve litigation conclusively.” (Id.
at p. 333.)
At issue in this case is the doctrine of issue preclusion, which “prevents
‘relitigation of previously decided issues,’ rather than causes of action as a
whole.” (Samara, supra, 5 Cal.5th at p. 327.) Perhaps as a reflection of its
long evolution, even recent opinions by our Supreme Court describe the
doctrine’s requirements somewhat differently. One common formulation
consists of four requirements: “ ‘(1) . . . final adjudication (2) of an identical
issue (3) actually litigated and necessarily decided in the first suit and
(4) asserted against one who was a party in the first suit or one in privity
with that party.’ ” (Ibid.) Another renumbers the requirements and adds to
the finality requirement: “ ‘ “First, the issue . . . must be identical to that
8 Like our Supreme Court, we generally “refer to ‘claim preclusion’
rather than ‘res judicata’ ” and “use ‘issue preclusion’ in place of ‘direct or
collateral estoppel.’ ” (Ibid.)
16
decided in a former proceeding. Second, this issue must have been actually
litigated” ’ ” and “ ‘ “[t]hird, it must have been necessarily decided in the
former proceeding. Fourth, the decision . . . must be final and on the merits.
Finally, the party against whom preclusion is sought must be the same as, or
in privity with, the party to the former proceeding.” ’ ” (People v. Curiel
(2023) 15 Cal.5th 433, 451–452 (Curiel), italics added.)
Relying on several authorities that omit the “on the merits” language
from their recitation of issue preclusion’s requirements, BATA contends this
requirement applies only in the context of claim preclusion. But none of the
authorities BATA cites to support this argument so hold,9 and there is
authority holding, to the contrary, that the “on the merits” requirement
applies equally to both types of preclusion. (See Parkford Owners for a Better
Community v. Windeshausen (2022) 81 Cal.App.5th 216, 227 [because appeal
in prior action “was not disposed of ‘on the merits’ ” but was decided on the
ground of mootness, “neither claim nor issue preclusion apply”].) This is
consistent with our Supreme Court’s discussion of the “two ways” in which
the doctrines differ: “First, issue preclusion does not bar entire causes of
action. Instead, it prevents relitigation of previously decided issues. Second,
9 DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823–827 (DKN
Holdings) and Grande v. Eisenhower Medical Center (2022) 13 Cal.5th 313,
323–329 (Grande) addressed the privity requirement of issue preclusion.
Samara, supra, 5 Cal.5th at p. 334 held that “a ground reached by the trial
court and properly challenged on appeal, but not embraced by the appellate
court’s decision” does not have preclusive effect. Tukes v. Richard (2022)
81 Cal.App.5th 1, 21–23 held that a voluntary dismissal with prejudice did
not satisfy the “ ‘actual litigation’ ” requirement for issue preclusion.
640 Octavia LLC v. Walston (2025) 111 Cal.App.5th 861, 871 (640 Octavia)
held that dismissal with prejudice pursuant to a terminating sanction was
not preclusive within the same action, in which the parties continued to
litigate a cross-complaint.
17
unlike claim preclusion, issue preclusion can be raised by one who was not a
party or privy in the first suit.” (DKN Holdings, supra, 61 Cal.4th at p. 824;
see also Grande, supra, 13 Cal.5th at p. 323 [similarly identifying the privity
requirement as the key difference between the doctrines].)
Ultimately, we need not resolve the issue. As we will explain,
assuming that the “on the merits” requirement does apply to issue preclusion,
it is satisfied in this case, as are the other requirements of the doctrine.
2. Analysis
There is no dispute that the trial court’s ruling in the first action
became final after Baker failed to appeal, and that Baker is the party against
whom the relevant issues were resolved in both proceedings. We focus our
analysis on the other requirements of issue preclusion.
a. Identical Issues
The trial court rejected in Baker’s first action the very same arguments
concerning the statute of limitations governing his CEQA challenge to Bay
Lights 360 that Baker raises in his briefing in this appeal. In the first action,
the court expressly rejected Baker’s argument that his claim was timely
because BATA never formally approved the project, so the 35-day statute of
limitations that would run from the filing of a valid notice of exemption did
not apply. The court also expressly rejected Baker’s position that the statute
of limitations did not begin to run until construction began on the project in
December 2024. Instead, the court ruled that “[u]nder CEQA, ‘approval’ of a
project is ‘the decision by a public agency which commits the agency to a
definite course of action in regard to a project,’ ” which “occurs upon the
agency’s earliest approval, not the last.” The court specifically ruled that
BATA “undert[ook]” or committed to move forward with the Bay Lights 360
project “no later than January 11, 2023, when [the] BATA Oversight
18
Committee held a public meeting where the new scope of the Project was
presented.” Therefore, the court concluded, Baker’s claim was barred by both
the 35-day and the 180-day statutes of limitation.
b. Issues Actually Litigated and Necessarily Decided
These issues were actually litigated and necessarily decided in the first
action. As to the former requirement, “ ‘ “[w]hen an issue is properly raised,
by the pleadings or otherwise, and is submitted for determination, and is
determined, the issue is actually litigated . . . . An issue may be submitted
and determined on a motion to dismiss for failure to state a claim, a motion
for judgment on the pleadings, . . . or their equivalents, as well as on a
judgment entered on a verdict. A determination may be based on a failure of
pleading or of proof as well as on the sustaining of the burden of proof.” ’ ”
(Murphy v. Murphy (2008) 164 Cal.App.4th 376, 400–401 [substituted
judgment ordered by probate court was issue preclusive]; see also Rest.2d
Judgments, § 27.) Here, the trial court’s order is clear that these issues were
decided. (See Murphy, supra, 164 Cal.App.4th at p. 400 [actual litigation
may be difficult to determine “where the former judgment or order does not
show on its face that the particular issue was decided”].) Moving to the next
requirement, “[w]hether an issue was ‘ “necessarily decided” has been
interpreted to mean that the issue was not “ ‘entirely unnecessary’ ” to the
judgment in the prior proceeding.’ ” (Ibid.) Here, the trial court granted
BATA’s demurrer to Baker’s CEQA claim in the first action based precisely
on the statute of limitations and entered judgment accordingly, so this
requirement is also satisfied.
c. Determination on the Merits
That brings us to Baker’s main argument against applying issue
preclusion to the trial court’s findings: that a ruling applying the statute of
19
limitations on demurrer is not “on the merits.” Baker relies primarily on
Goddard v. Security Title Insurance & Guarantee Co. (1939) 14 Cal.2d 47
(Goddard), which discussed this requirement in the context of res judicata or
claim preclusion.
Goddard explained that “a judgment based upon the sustaining of a
special demurrer for technical or formal defects is clearly not on the merits”;
however, “judgments based upon sustaining a general demurrer have given
rise to an apparent conflict of decision, and careful distinctions must be
drawn between the cases.”10 (Goddard, supra, 14 Cal.2d at p. 52, italics
added.) Goddard clarified that “[a] judgment given after the sustaining of a
general demurrer on a ground of substance, for example, that an absolute
defense is disclosed by the allegations of the complaint, may be deemed a
judgment on the merits, and conclusive in a subsequent suit; and the same is
true where the demurrer sets up the failure of the facts alleged to establish a
cause of action, and the same facts are pleaded in the second action.” (Ibid.)
But a judgment on a general demurrer arising from mere “technical or
formal” defects will not be a bar where “the plaintiff . . . by a different
pleading eliminate[s] them or correct[s] the omissions and allege[s] facts
constituting a good cause of action, in proper form.” (Ibid.) Applying these
principles, Goddard held that res judicata did not apply on the record before
it, where the prior judgment “was based upon formal matters of pleading”—
namely, “that the complaint was framed on a theory of conversion rather
than an action on the case; and . . . that it was uncertain and insufficient in
its pleading of causal connection between the violation [alleged] and the
10 A demurrer alleging an action is barred by the statute of limitations
is “considered one of general demurrer.” (Weinstock v. Eissler (1964)
224 Cal.App.2d 212, 225.)
20
resulting loss to the plaintiff.” (Id. at p. 53.) Under these circumstances,
Goddard concluded that the prior demurrer was not sustained “on a matter of
substance which could not be remedied by another pleading.” (Ibid.)
Several decades after Goddard, Baker’s next authority, Association of
Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202
(Irritated Residents), was decided. Irritated Residents noted Goddard’s
direction that a judgment on the merits “may include a judgment of dismissal
following a general demurrer or a dismissal motion if the disposition was
plainly reached ‘on a ground of substance.’ ” (Id. at p. 1220.) It then went on
to state that a judgment based on the statute of limitations would not be on
the merits—and to hold that a judgment based on mootness or lack of
ripeness was likewise not on the merits. (Id. at p. 1221.)
Irritated Residents cited two authorities to support its dictum
statement that a judgment based on the statute of limitations is not on the
merits.11 The first, Mid-Century Ins. Co. v. Superior Court (2006)
138 Cal.App.4th 769, 776–777 (Mid-Century), interpreted a statute that
revived claims by owners of property damaged in the Northridge earthquake,
rather than directly applying issue or claim preclusion, making its discussion
of this issue dicta as well. Mid-Century relied on the other authority cited by
Irritated Residents, Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591
(Koch). Koch found a decision was not on the merits for purposes of res
judicata where the trial court in the first action held on summary judgment
“that plaintiffs’ action was barred by the statute of limitations for contract
rescission actions.” (Id. at p. 1597.) Koch characterized this as “a procedural
but not absolute defense” that did not bar a subsequent action “based on
11 Samara, supra, 5 Cal.5th at p. 338, assumed the same was true
without deciding the issue.
21
common law fraud” allegedly “discovered within the applicable limitations
period.” (Ibid., italics added.) Thus, in Koch, the statute of limitations theory
at issue in the second case was not actually litigated or necessarily decided in
the first case. Or as Goddard put it, the first action was not a bar to the
second because the plaintiff newly “allege[d] facts constituting a good cause of
action.” (Goddard, supra, 14 Cal.2d at p. 52.)12 Koch, in turn, relied on
Lackner v. LaCroix (1979) 25 Cal.3d 747, 749–752 (Lackner), which held that
dismissal of an action based on the statute of limitations was not a
termination on the merits favorable to the defendant “in the sense [that] it
would support a subsequent action for malicious prosecution.” (Italics added;
see also Finnie v. District No. 1 - Pacific Coast Dist. etc. Assn. (1992)
9 Cal.App.4th 1311, 1319 [citing Koch in dicta discussion of res judicata effect
of a dismissal based on the statute of limitations].)
12 The same was true in Boyd v. Freeman (2017) 18 Cal.App.5th 847
(Boyd), which was cited by neither party but stated, like Koch, that a ruling
sustaining a demurrer based on the statute of limitations was not on the
merits. Boyd held that claim preclusion did not apply to bar a second action
alleging “new claims . . . predicated on additional factual allegations.” (Id. at
p. 859.) It first affirmed that claim preclusion “may be invoked even when
the prior judgment resulted from the sustaining of a demurrer, provided that
the judgment was ‘on the merits,’ ” an issue which “depends upon the facts of
the case and the reason for the ruling.” (Id. at p. 855.) Boyd explained that
“ ‘generally[,] . . . a demurrer which is sustained for failure of the facts alleged
to establish a cause of action[] is a judgment on the merits,’ ” but “ ‘only if the
same facts are pleaded in the second action [citation], or if, although different
facts are pleaded, the new complaint contains the same defects as the
former.’ ” (Ibid.) Changing course, Boyd then stated that “a prior judgment
based on the statute of limitations ordinarily is not on the merits,” citing
Koch and Mid-Century. (Id. at p. 856.) It then returned to the first concept:
“a judgment due to a demurrer to potentially curable defects in the
complaint’s allegations also is not on the merits.” (Ibid.) In our view, the
latter point is the key to the outcome in Boyd.
22
The analyses in these authorities—which are all distinguishable from
our case—do not turn on the “careful distinctions” demanded by Goddard.
(Goddard, supra, 14 Cal.2d at p. 52.) Goddard itself did not specifically
address the preclusive effect of a ruling based on the statute of limitations,
but it did say that res judicata would apply “where the demurrer sets up the
failure of the facts alleged to establish a cause of action, and the same facts
are pleaded in the second action.” (Ibid., italics added.) That is the situation
we are faced with here, where Baker seeks to relitigate the exact same
arguments concerning the statute of limitations that were resolved against
him in the first action.
Notably, Goddard cited Newhall v. Hatch (1901) 134 Cal. 269, 272,
which analyzed the preclusive effect of a prior judgment based on the statute
of limitations using the same logic Goddard emphasized, explaining that “[a]
judgment rendered upon sustaining a demurrer to the complaint upon the
ground that the facts stated therein do not entitle the plaintiff to a recovery
will be a bar to an action for a recovery upon the same facts, but[,] if other
facts are stated[,] which supply the defects in the first statement, or which
present a different cause of action, the judgment upon the demurrer will not
be a bar to the second action.” (Italics added.) Likewise, the Restatement
explains that claim preclusion applies “to a judgment for the defendant on
demurrer or motion to dismiss for failure to state a claim,” which “is
warranted by the ease with which pleadings may be amended . . . and by the
unfairness of requiring the defendant to submit to a second action . . . when
no such amendment is sought, or when no appeal has been taken from an
erroneous denial of leave to amend.” (Rest.2d Judgments § 19, com. d, p. 164;
see also 7 Witkin, Cal. Proc. (6th ed. 2026) Judgment, § 404, p. 923 [“A
judgment on general demurrer will be a bar under [Goddard], if the new
23
complaint states the same facts and the former judgment determined that
these facts did not constitute a cause of action”].)
We are not the first court to question whether authorities’ treatment of
this issue has drifted from the nuanced discussion in Goddard. (See
Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 186 [explaining in dicta that
“[w]hile Goddard and Koch might allow a second action that either alleges
new facts, an entirely new claim, or an alternative theory subject to a
different limitations period, they do not purport to hold that a judgment
based on the statute of limitations is not res judicata when no new facts or
alternative theories are available”].) This may be because the “on the merits”
requirement is a poor fit to this procedural context. (See Samara, supra,
5 Cal.5th at p. 331 [noting that “[t]he second Restatement does not appear to
take an explicit position on the claim preclusive effect of a judgment affirmed
on a nonmerits ground, perhaps reflecting aversion to the terminology ‘ “on
the merits,” ’ which has ‘ possibly misleading connotations’ ”].)13
Consistent with Goddard and the Restatement, McClain v. Rush (1989)
216 Cal.App.3d 18, 27–29 held that a ruling on summary judgment based on
the statute of limitations was preclusive, although without squarely
13 The Restatement explains:
“It is frequently said that a valid and final personal judgment for the
defendant will bar another action on the same claim only if the
judgment is rendered ‘ on the merits.’ The prototype case continues to
be one in which the merits of the claim are in fact adjudicated against
the plaintiff after trial of the substantive issues. Increasingly,
however, by statute, rule, or court decision, judgments not passing
directly on the substance of the claim have come to operate as a bar.
Although such judgments are often described as ‘ on the merits’ . . . [,]
that terminology is not used here in the statement of the general rule
because of its possibly misleading connotations.” (Rest.2d Judgments
§ 19, com. a, p. 161.)
24
addressing the “on the merits” issue. Similarly, Border Business Park, Inc. v.
City of San Diego (2006) 142 Cal.App.4th 1538, 1565–1566 (Border Business
Park) held that a ruling on demurrer concerning the timeliness of a claim
under the Government Claims Act was preclusive. And other authorities
hold issue preclusion bars relitigation of arguments already resolved against
a party in the context of issues like personal jurisdiction, whether a claim
arises from protected activity for purposes of Code of Civil Procedure section
425.16 (the anti-SLAPP statute), and others for which the “on the merits”
language is an awkward fit. (See MIB, Inc. v. Superior Court (1980)
106 Cal.App.3d 228, 232–235 [personal jurisdiction]; Sabek, Inc. v. Engelhard
Corp. (1998) 65 Cal.App.4th 992, 997–1000 [personal jurisdiction]; South
Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 658 [anti-
SLAPP determination]; 640 Octavia, supra, 111 Cal.App.5th at p. 871
[discussing how “dismissal with prejudice pursuant to a terminating sanction
[is] treated as claim or issue preclusion in a second lawsuit”].)
We agree with these outcomes, and concur with the Restatement’s
observation (which Samara seems to endorse) that the “on the merits”
terminology can be confusing.14 Applying Goddard, a ruling has preclusive
effect “where the demurrer sets up the failure of the facts alleged to establish
a cause of action, and the same facts are pleaded in the second action.”
(Goddard, supra, 14 Cal.2d at p. 52.) That is the case here, and the “on the
merits” requirement is satisfied.
14 Notably, even the original Restatement of Judgments—which, unlike
its successor, included the “on the merits” requirement in its definition of
claim preclusion—provided that the requirement did not apply to issues
“actually decided” in a first unsuccessful action by the plaintiff against the
defendant, including an action where judgment entered on the ground “that
the complaint is insufficient in law.” (Rest., Judgments §§ 48–50.)
25
d. Public Policy Concerns
Finally, “the public policies underlying [issue preclusion or] collateral
estoppel—preservation of the integrity of the judicial system, promotion of
judicial economy, and protection of litigants from harassment by vexatious
litigation—strongly influence whether its application in a particular
circumstance would be fair to the parties and constitutes sound judicial
policy.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 343 [assuming the
elements of collateral estoppel were satisfied but declining to apply the
doctrine given policy concerns unique to criminal law].) All of these policies
support applying the doctrine here. It would undermine these goals to allow
Baker to fully litigate his arguments concerning the statute of limitations in
one action, fail to appeal from the trial court’s ruling, and then repeat the
process by filing a new lawsuit. Allowing repetitious litigation of issues
would be especially problematic in the context of the CEQA statute of
limitations, which the Legislature made unusually short “to ensure extremely
prompt resolution of lawsuits claiming noncompliance” with the statute. (See
Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th
481, 499–500 [statutes of limitation governing challenges to public land use
planning decisions “are typically short,” in order “[t]o ensure finality and
predictability” in such decisions].)
Returning to our initial discussion, our Supreme Court has “repeatedly
underscored the important role that the availability of appellate review plays
in ensuring that a determination is sufficiently reliable to be conclusive in
future litigation.” (Samara, supra, 5 Cal.5th at p. 333.) Such review was
available to Baker in the first action, but he “waived or forfeited” it by
“fail[ing] to file a timely notice of appeal.” (Ibid.) Similar to the plaintiff in
Border Business Park, Baker “effectively acquiesced in the ruling [in the first
26
action] by failing to . . . appeal” and instead filed a second action alleging a
different theory (which fails as a matter of law). (Border Business Park,
supra, 142 Cal.App.4th at p. 1565 [plaintiff attempted to avoid a ruling that
his claim was untimely under the Government Claims Act by presenting a
Government Code claim rather than appealing the trial court’s ruling].)
“Having decided not to pursue the remedy available to” him, Baker “should
not now be able to contend that the order is not a final adjudication of the
issues it addressed. Under these circumstances, the order sustaining the
demurrer precludes relitigation of the issues already adjudicated.” (Ibid.)
III. DISPOSITION
The judgment is affirmed. BATA is entitled to its costs on appeal.
27
_________________________
SMILEY, J.
WE CONCUR:
_________________________
BANKE, Acting P. J.
_________________________
LANGHORNE WILSON, J.
Baker v. Bay Area Toll Authority / A174642
28
Trial Court: City and County of San Francisco Superior Court
Trial Judge: Hon. Jeffrey S. Ross
Counsel:
Mark Baker for Plaintiff and Appellant
Stoel Rives, Amy R. Higuera, Samuel D. Bacal-Graves; and Metropolitan
Transportation Commission, Kathleen Kane, Scott N. Spansail for Defendant
and Respondent
Baker v. Bay Area Toll Authority / A174642
29