PETROU, ACTING P.J.
Contra Costa County Superior Court No. MSN1701909 Hon. Steven K Austin Trial Judge
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.
PETROU, ACTING P.J.
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.
WE CONCUR: Jackson, J., Wiseman J. [*] 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 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].) We also note appellants filed an action challenging the City of Lafayette's March 27, 2017 approval of a separate “agreement with PG&E 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.) “(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.” “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 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.” “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.” “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.” “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.” “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).” [*] 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.