Filed 3/24/20
                             CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA


 CITIZENS FOR A RESPONSIBLE                         D074374
 CALTRANS DECISION,

          Plaintiff and Appellant,
                                                    (Super. Ct. Nos. 37-2017-00041496-
          v.                                        CU-MC-CTL, 37-2017-00041547-
                                                    CU-TT-CTL)
 DEPARTMENT OF TRANSPORTATION,

          Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. (Retired Judge of the San Diego Super. Ct., assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.

        Chatten-Brown, Carstens & Minteer; Jan Chatten-Brown and Joshua Chatten-

Brown for Plaintiff and Appellant.

        Jeanne Scherer, Chief Counsel, Jeffrey B. Benowitz, Deputy Chief Counsel and

Glenn B. Mueller, Assistant Chief Counsel, for Defendant and Respondent.

        In 2017, the California Department of Transportation (Caltrans) released a final

environmental impact report (FEIR) for the construction of two freeway interchange

ramps connecting Interstate 5 (I-5) and State Route 56 (SR 56) (the Project). The FEIR
stated: "After the [FEIR] is circulated, if Caltrans decides to approve the [P]roject, a

Notice of Determination (NOD) will be published in compliance with CEQA by Caltrans,

as well as[] by the California Coastal Commission (CCC), and Caltrans will publish a

Record of Decision (ROD) in compliance with NEPA from Caltrans/FHWA." However,

before the public comment period for the FEIR commenced and without issuing a notice

of determination (NOD), Caltrans approved the Project a few days later and then filed a

notice of exemption (NOE) two weeks later. The NOE stated that the Project was exempt

from the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000

et seq.) pursuant to Streets and Highways Code section 103,1 which was enacted as of

January 1, 2012. Citizens for a Responsible Caltrans Decision (CRCD) did not become

aware of the NOE filing until after the 35-day statute of limitations period for challenging

the NOE had run.

       CRCD filed a petition for writ of mandate and declaratory relief alleging, inter

alia, that Caltrans erroneously claimed the Project is exempt from CEQA under section

103 and that Caltrans is equitably estopped from relying on the 35-day statute of

limitations for challenging notices of exemption. Caltrans demurred to the petition on the

grounds that the causes of action were barred by the applicable statute of limitations and

that the Project is exempt from CEQA under section 103. CRCD opposed the demurrer,




1      All statutory references are to the Streets and Highways Code unless otherwise
specified.



                                              2
arguing that: (1) the petition alleged facts regarding Caltrans's statements and conduct

showing that Caltrans is equitably estopped from relying on the 35-day statute of

limitations; and (2) section 103's CEQA exemption did not apply to Caltrans's approval

of the Project. The trial court sustained the demurrer without leave to amend and entered

a judgment of dismissal.

       On appeal, CRCD contends the trial court erred by sustaining Caltrans's demurrer

to the petition because: (1) section 103 does not exempt Caltrans from complying with

CEQA in its approval of the Project; and (2) the petition alleged facts showing equitable

estoppel applies to preclude Caltrans from raising the 35-day statute of limitations. As

explained post, we agree that the court erred by sustaining Caltrans's demurrer and

therefore reverse the judgment of dismissal.

                  FACTUAL AND PROCEDURAL BACKGROUND

       The North Coastal Corridor (NCC) project includes multiple proposed projects by

Caltrans and the San Diego Association of Governments (SANDAG) to improve vehicle

and railroad transportation in the 27-mile corridor from La Jolla to Oceanside. One of the

NCC projects is the Project, which involves the construction of two freeway interchange

ramps connecting I-5 and SR 56.

       In 2005, a notice of preparation of an environmental impact report (EIR) for the

Project was filed by Caltrans with the California Office of Planning and Research (OPR).

Effective as of January 1, 2012, section 103 was enacted, providing for, inter alia,

integrated regulatory review by the CCC of a public works plan (PWP) for the NCC

projects, rather than a project-by-project approval approach. (§ 103, subd. (a)(4).)

                                               3
In April 2012, Caltrans circulated a draft environmental impact report/environmental

impact statement (DEIR) for public review and comment. The DEIR stated: "Caltrans is

the lead agency under CEQA." The DEIR further stated:

          "Following receipt of comments from the public and reviewing
          agencies, an [FEIR] will be prepared. Caltrans may undertake
          additional environmental and/or engineering studies to address
          comments. The [FEIR] will include responses to comments received
          on the [DEIR] and will identify the preferred alternative. Following
          circulation of the [FEIR], if the decision is made to approve the
          [P]roject, a Notice of Determination [NOD] will be published for
          compliance with [CEQA], and a Record of Decision will be
          published for compliance with the National Environmental Policy
          Act [NEPA]." (Italics added.)

       In October 2013, Caltrans issued an FEIR/environmental impact statement for its

proposed NCC widening improvements to I-5 (i.e., construction of four express lanes),

stating: "CA SB 468 [§ 103] is not intended to eliminate project-specific [CEQA] or

[NEPA] reviews; rather, it provides for integrated regulatory review by the [CCC]."

(Italics added.) It noted that the I-5 NCC widening project and the Project (i.e., the

I-5/SR 56 interchange project) "were . . . independently evaluated under CEQA and

NEPA."

       In June 2014, Caltrans and SANDAG issued the PWP for the NCC project.2 In

August 2014, the CCC approved the PWP. The PWP set forth "a blueprint for

implementing a $6-billion 40-year program of rail, highway, transit, bicycle, pedestrian,


2     The PWP is entitled, "Final North Coastal Corridor Public Works
Plan/Transportation and Resource Enhancement Program."



                                             4
and coastal resource improvements that span 27 miles of the Northern San Diego County

coastline from La Jolla to Oceanside. In particular, the PWP provided for improvements

to I-5 through the addition of two express lanes in each direction. The PWP also

discussed alternatives for improvements to the I-5/SR 56 interchange to provide better

connectivity. The PWP stated:

          "Development activities requiring coastal development permits in
          the [CDP's] are regulated by the [CCC] and local governments
          through their respective [CDP] processes. Coastal Act Chapter 3
          policy mandates and [CDP] requirements are implemented by local
          governments (cities and counties) pursuant to a certified LCP [local
          coastal plan]. Upon certification of an LCP by the [CCC], local
          governments assume [CDP] responsibility for most new
          development within their jurisdictions.

          "A PWP is an alternate vehicle for obtaining approval of large or
          phased public works projects and remains under the authority of the
          [CCC] irrespective of coastal permit jurisdictional boundaries. A
          PWP is an alternative to project-by-project review for public works
          (which could require multiple [CDP's] for different components of a
          public works project). A PWP must be sufficiently detailed
          regarding the size, kind, intensity, and location of development to
          allow the [CCC] to determine its consistency with the policies in
          Chapter 3 of the Coastal Act (pre-LCP certification) or the certified
          LCP (post-LCP certification). Once the [CCC] approves a PWP, no
          [CDP] is required if the development is consistent with the PWP.
          Instead, the permittee provides a Notice of Impending Development
          (NOID) to the [CCC] and other interested persons, organizations,
          and government agencies. The [CCC] then reviews the NOID for
          consistency with the approved PWP; if the [CCC] determines that
          the NOID is consistent with the PWP, the development may
          proceed. In these cases, however, the [CCC] may still apply
          conditions to that specific project to ensure consistency with the
          PWP." (Italics added.)




                                            5
Importantly, the PWP added the following footnote to the above discussion of PWP's:

          "The [CCC] PWP review and approval process is not intended to
          supplant the review processes required by [CEQA], [NEPA] or other
          regulatory schemes; compliance with the CEQA, NEPA and/or other
          regulatory schemes are addressed at the project level . . . ." (Italics
          added.)

       Regarding the Project, the PWP stated: "Given that a preferred alternative has not

yet been selected for the [Project], this project may be subject to future PWP amendment

and a NOID to ensure consistency with the approved PWP, or Caltrans may choose (in

consultation with the [CCC] and the city) to submit a [CDP] application to the city.

Project alternatives include improvements to local streets, adding auxiliary lanes along

I-5 and SR 56, interchange improvements, or southbound-to-eastbound and westbound-

to-northbound freeway connector ramps. An environmental document [i.e., the DEIR]

analyzing the alternatives was released in May 2012."

       The PWP further provided that when Caltrans and SANDAG submit an NOID for

a specific development project, they must attach a project report for that specific project.

A project report must include, inter alia, "[e]nvironmental documentation for the

proposed development prepared pursuant to CEQA and/or NEPA," as well as findings

that "[t]he proposed development has been reviewed in compliance with CEQA and/or

NEPA, and all conditions and/or mitigation measures identified in those CEQA and/or

NEPA documents have been incorporated as part of the proposed development." (Italics

added.)

       On June 26, 2017, Caltrans, as lead agency, released the FEIR for the Project. The

State Clearinghouse assigned to the FEIR the identifying number, "2005051061." The

                                              6
FEIR stated: "After the [FEIR] is circulated, if Caltrans decides to approve the [P]roject,

a Notice of Determination (NOD) will be published in compliance with CEQA by

Caltrans, as well as[] by the [CCC], and Caltrans will publish a Record of Decision

(ROD) in compliance with NEPA from Caltrans/FHWA." (Italics added.) However, the

FEIR also included the following (apparently inconsistent) language:

          "On January 1, 2012, . . . section 103 became effective.
          [Citation.] . . . [S]ection 103, subdivision (d), together with Public
          Resources Code section 21080.5, mandate that instead of being
          analyzed under CEQA, the Interstate 5 North Coast Corridor and all
          of the projects included therein, shall be addressed under the
          [CCC's] review per its certified regulatory program. [¶] . . .

          "Because the Project was identified as one of the series of projects
          analyzed and approved on August 13, 2014 by the [CCC] series of
          actions regarding the [PWP], the Project's environmental review is
          to be considered in light of the approved [PWP] and the applicable
          Coastal Act policies.

          "The CEQA process for the Project was initiated prior to the
          enactment of . . . section 103[.] [A]lthough Public Resources Code
          section 21000 et[] seq., no longer applies to the environmental
          review of the Project[,] Caltrans determined public disclosure of the
          analysis of the Project's anticipated impacts in the format of a Final
          EIR was still desirable. Therefore, the following document retains
          the joint EIR/EIS format presented to the public in the [DEIR]. To
          the extent Public Resources Code section 21000 et seq. were
          applicable, this document would also satisfy the analytical and
          disclosure requirements associated with CEQA.

          "This [FEIR] is not project approval for CEQA, NEPA, or Coastal
          Act purposes. To the extent CEQA is applicable to this [P]roject,
          the signing of the Project Report and filing of the Notice of
          Determination [NOD] constitute the approval for CEQA purposes."3
          (Italics added.)


3      The substance of this language was repeated in three other sections of the FEIR.

                                             7
The FEIR further stated: "Subject to the application of . . . section 103, as explained

above, the [Project] is a joint project by [Caltrans] and the Federal Highway

Administration (FHWA), and is subject to state and federal environmental review

requirements. Project documentation, therefore, was prepared in compliance with

[NEPA], the California Coastal Act and, to the extent it is applicable, [CEQA]. Caltrans

is the lead agency under NEPA. Caltrans would be the lead agency under CEQA, if it

were applicable. . . . As is described in the Executive Summary above, although Public

Resources Code section 21000, et seq. is inapplicable, because the analysis under CEQA

is well developed and because it provides important analyses and public disclosures,

Caltrans has decided to retain the joint CEQA/NEPA nomenclature for convenience of

the reader. The use of the Final EIR/EIS nomenclature is not intended to create legal

duties or obligations which do not otherwise apply. [¶] . . . [¶] . . . Following

circulation of the [FEIR], if the decision is made to approve the [P]roject, a Record of

Decision (ROD) would be published for compliance with NEPA from Caltrans/FHWA.

A Notice of Determination (NOD) would be published by the CCC for any affirmative

action it would take in accordance to [sic] the [PWP] process. Additionally, to the extent

CEQA applied, Caltrans would file an NOD as well." (Italics added.) The FEIR also

stated that Caltrans maintains a website for information on the Project (i.e.,

"http://www.keepsandiegomoving.com"), which it "frequently updat[es] . . . with

accurate and timely information for all interested parties."




                                              8
       During the 30-day review period from July 14, 2017, through August 14, 2017,

Caltrans received comments on the FEIR from, inter alia, municipalities, organizations,

and the general public. Caltrans thereafter responded to the comments.

       However, on or about June 30, 2017, Caltrans approved a project report for the

Project. On July 12 (which date was before the 30-day review period for the FEIR

commenced), Caltrans filed with the OPR a notice of exemption (NOE) for the Project, to

which the State Clearinghouse assigned the identifying number "2017078159." The NOE

stated: "The [P]roject is statutorily exempt from CEQA pursuant to . . . section 103 and

Public Resources Code sections 21080.5, [subdivision] (c) and 21080.9. The [P]roject's

impacts were analyzed consistent with the [CCC's] certified regulatory program.

[Citation.]"

       On September 28, 2017, CRCD's counsel first became aware of the NOE.

Caltrans subsequently refused his request that it rescind the NOE or agree to a

180-day statute of limitations for challenging its approval of the Project.

       On November 1, 2017, CRCD filed the instant petition for writ of mandate and

declaratory relief, alleging, inter alia, that Caltrans improperly relied on section 103 in

claiming an exemption from CEQA for the Project and should be estopped from relying

on the 35-day statute of limitations under Public Resources Code section 21167,




                                              9
subdivision (d).4 The petition also alleged that the FEIR failed to adequately analyze or

disclose various environmental impacts of the Project.

       Caltrans filed a demurrer to the petition. On March 15, 2018, the court issued a

minute order sustaining Caltrans's demurrer without leave to amend. On April 4, 2018,

the court entered a judgment dismissing the petition with prejudice. CRCD timely filed a

notice of appeal.

                                      DISCUSSION

                                             I

                              Demurrer Standard of Review

       A "demurrer tests the pleading alone, and not the evidence or the facts alleged.

Thus, a demurrer will be sustained only where the pleading is defective on its face."

(City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th

445, 459.) On appeal from a judgment of dismissal based on an order sustaining a

demurrer, "we examine the complaint de novo to determine whether it alleges facts

sufficient to state a cause of action under any legal theory, such facts being assumed true

for this purpose." (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We




4      On the same date, another organization, Citizens for Sensible Traffic Planning
(CSTP), filed a separate petition for writ of mandamus and complaint for injunctive relief
challenging Caltrans's approval of the Project. The trial court subsequently consolidated
the two cases.



                                            10
may also consider matters that have been judicially noticed, but must disregard

allegations that are contrary to law or facts judicially noticed. (Serrano v. Priest (1971)

5 Cal.3d 584, 591 (Serrano); Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)

Alternatively stated, "[w]e treat the demurrer as admitting all material facts properly

pleaded but not contentions, deductions or conclusions of fact or law." (Mitchell v. State

Dept. of Public Health (2016) 1 Cal.App.5th 1000, 1007 (Mitchell).)

       Code of Civil Procedure section 430.30, subdivision (a) provides that when "any

ground for objection to a complaint . . . appears on the face thereof, . . . the objection on

that ground may be taken by a demurrer to the pleading." Therefore, a statute of

limitations defense may be asserted by general demurrer if the complaint shows on its

face that the statute bars the action. (Mitchell, supra, 1 Cal.App.5th at p. 1007; Coalition

for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 419 (Coalition for Clean

Air).) Nevertheless, " '[a] demurrer based on a statute of limitations will not lie where the

action may be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be

raised by demurrer, the defect must clearly and affirmatively appear on the face of the

complaint; it is not enough that the complaint shows that the action may be barred.

[Citation.]' [Citation.]" (Geneva Towers Ltd. Partnership v. City and County of San

Francisco (2003) 29 Cal.4th 769, 781 (Geneva Towers Ltd. Partnership).) Accordingly,

it may be difficult for a "demurrer[] based on the statute of limitations to succeed because

(1) trial and appellate courts treat the demurrer as admitting all material facts properly

pleaded and (2) resolution of the statute of limitations issue can involve questions of fact.

Furthermore, when the relevant facts are not clear such that the cause of action might be,

                                              11
but is not necessarily, time-barred, the demurrer will be overruled." (Coalition for Clean

Air, at p. 420.)

       We review a court's denial of leave to amend on sustaining a demurrer for abuse of

discretion. (Traders Sports v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) On

appeal, the appellant must show there is a reasonable possibility the defect in the

complaint can be cured by amendment. (Ibid.; Friedland v. City of Long Beach (1998)

62 Cal.App.4th 835, 842.)

                                             II

                                     CEQA Generally

       "The foremost principle under CEQA is that the Legislature intended the act 'to be

interpreted in such manner as to afford the fullest possible protection to the environment

within the reasonable scope of the statutory language.' " (Laurel Heights Improvement

Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 (Laurel Heights

Improvement Assn.).) "CEQA and its implementing regulations 'embody California's

strong public policy of protecting the environment.' [Citation.] ' "The basic purposes of

CEQA are to: [¶] (1) Inform governmental decision makers and the public about the

potential, significant environmental effects of proposed activities. [¶] (2) Identify ways

that environmental damage can be avoided or significantly reduced. [¶] (3) Prevent

significant, avoidable damage to the environment by requiring changes in projects

through the use of alternatives or mitigation measures when the governmental agency

finds the changes to be feasible. [¶] [and] (4) Disclose to the public the reasons why a

governmental agency approved the project in the manner the agency chose if significant

                                             12
environmental effects are involved." ' [Citation.]" (Bottini v. City of San Diego (2018)

27 Cal.App.5th 281, 291 (Bottini).)

       "CEQA establishes a three-tier environmental review process. The first step is

jurisdictional and requires a public agency to determine whether a proposed activity is a

'project.' . . . If a proposed activity is a project, the agency proceeds to the second step of

the CEQA process. [¶] At the second step, the agency must 'decide whether the project

is exempt from the CEQA review process under either a statutory exemption [citation] or

a categorical exemption set forth in the CEQA Guidelines [citations].' . . . [¶] Unlike

statutory exemptions, categorical exemptions are subject to exceptions. . . . [¶] If a

project is [statutorily or] categorically exempt and does not fall within an exception,

' "it is not subject to CEQA requirements and 'may be implemented without any CEQA

compliance whatsoever.' " ' [Citation.]" (Bottini, supra, 27 Cal.App.5th at pp. 291-292.)

"[I]f a project is not exempt, the agency must then 'decide whether the project may have a

significant environmental effect.' [Citation.]" (Id. at p. 292.) "[I]f the project may have

a significant effect on the environment, the agency must proceed to the third step of the

process and prepare an [EIR]. [Citations.]" (Ibid.)

       In general, statutory exemptions from compliance with CEQA are set forth in

Public Resources Code section 21080, subdivision (b).5 If an agency determines that a



5      In addition, the Public Resources Code sets forth specific statutory exemptions for
certain projects. (See, e.g., Pub. Resources Code, §§ 21080.01 [California Man's Colony
West Facility in San Luis Obispo County]; 21080.02 [new prison facility in Kings
County]; 21080.03 [prison facilities in Kings and Amador Counties]; 21080.04 [Napa
Valley wine train]; 21080.05 [lease or purchase of San Francisco Peninsula rail right-of-
                                              13
project is exempt from CEQA, it may prepare a notice of exemption. (Cal. Code Regs.,

tit. 14, § 15061, subd. (d).6) After approving a project found to be exempt, the agency

may file a notice of exemption with the OPR. (Pub. Resources Code, § 21108, subd. (b);

Guidelines, § 15062, subd. (a).) If a notice of exemption is filed, the filing starts a 35-day

statute of limitations "on legal challenges to the agency's decision that the project is

exempt from CEQA. If a [n]otice of [e]xemption is not filed, a 180[-]day statute of

limitations will apply." (Pub. Resources Code, § 21167, subd. (d); see also, Guidelines,

§ 15062, subd. (d).)

       In general, on appeal a public agency's "determination that [a particular] project

[is] exempt from compliance with CEQA requirements . . . is subject to judicial review

under the abuse of discretion standard in Public Resources Code section 21168.5.

[Citations.] Our inquiry focuses on 'whether there was a prejudicial abuse of discretion.

Abuse of discretion is established if the agency has not proceeded in a manner required

by law or if the determination or decision is not supported by substantial evidence.'

[Citation.] [¶] Where the issue turns only on an interpretation of the language of the

Guidelines or the scope of a particular CEQA exemption, this presents 'a question of law,



way]; 21080.07 [prison facilities in Riverside and Del Norte Counties]; 21080.42 [listing
eight specific freeway and highway construction projects].)

6      The regulations implementing CEQA are set forth in California Code of
Regulations, title 14, section 15000 et seq. and are hereafter referred to as the
"Guidelines." (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552,
1561, fn. 5.)



                                              14
subject to de novo review by this court.' [Citations.]" (Save Our Carmel River v.

Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 693 (Save

Our Carmel River).) "[Q]uestions of interpretation or application of the requirements of

CEQA are matters of law." (Save Our Peninsula Committee v. Monterey County Bd. of

Supervisors (2001) 87 Cal.App.4th 99, 118.) We review questions of law de novo. (City

of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341,

355.)

                                              III

                                         Section 103

        CRCD contends the trial court erred by sustaining Caltrans's demurrer to the

petition because, contrary to the court's finding, section 103 does not exempt Caltrans

from complying with CEQA in its approval of the Project.

                                              A

        "Well-established rules of statutory construction require us to ascertain the intent

of the enacting legislative body so that we may adopt the construction that best

effectuates the purpose of the law. [Citation.] We first examine the words themselves

because the statutory language is generally the most reliable indicator of legislative

intent. [Citation.] The words of the statute should be given their ordinary and usual

meaning and should be construed in their statutory context. [Citation.] These canons

generally preclude judicial construction that renders part of the statute 'meaningless or

inoperative.' [Citation.]" (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th

709, 715-716.) "When statutory language is clear and unambiguous, ' "there is no need

                                              15
for construction and courts should not indulge in it." ' [Citation.]" (Esberg v. Union Oil

Co. (2002) 28 Cal.4th 262, 268 (Esberg).) Another rule of statutory construction is

"expressio unius est exclusio alterius, where exceptions to a general rule are specified by

statute, other exceptions are not to be implied or presumed." (Wildlife Alive v.

Chickering (1976) 18 Cal.3d 190, 195 (Wildlife Alive).) However, that rule does not

apply "where its operation would contradict a discernible and contrary legislative intent."

(Ibid.; see also Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230 ["Under

the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions

are specified in a statute, we may not imply additional exemptions unless there is a clear

legislative intent to the contrary."].) Statutory construction is a question of law that we

decide de novo. (Daugherty v. City and County of San Francisco (2018) 24 Cal.App.5th

928, 944.)

                                              B

       Except as CEQA otherwise provides, CEQA's provisions apply to all discretionary

projects proposed to be carried out or approved by public agencies. (Pub. Resources

Code, § 21080, subd. (a).) Although not within CEQA, section 103, enacted as of

January 1, 2012, when construed together with Public Resources Code section 21080.5,

provides an exemption from certain CEQA provisions for approval by the CCC of the

PWP. Section 103 states in part:

             "(a) As used in this section, the following terms have the following
             meanings: [¶] . . .




                                              16
"(2) 'North coast corridor project' means a 27-mile long series of
projects within the coastal zone that includes improvements to a
segment of [I-5] and the portion of the Los-Angeles-San Diego-San
Luis Obispo rail corridor between the City of Oceanside and the City
of San Diego in San Diego County. [¶] . . .

"(4) 'Public works plan' means a plan as described in Section 30605
of the Public Resources Code. A public works plan allows for an
integrated regulatory review by the [CCC] rather than a project-by-
project approval approach . . . . The public works plan allows for an
expedited process that describes, evaluates, and provides mitigation
measures for coastal access, highway, transit, multimodal and
community enhancement, and environmental mitigation projects
within the north coast corridor.

"(b) A public works plan approved for the north coast corridor
project within the coastal zone shall include all of the elements of
the north coast corridor project to be carried out by [Caltrans] or
[SANDAG], including coastal access, highway, transit, multimodal,
community enhancement, and environmental restoration, and
mitigation projects. Once the public works plan for the north coast
corridor has been approved and certified by the [CCC], subsequent
review by the [CCC] of a notice of intent to develop for a specific
project in the public works plan shall be limited to imposing
conditions to ensure consistency of the project with the public works
plan. The public works plan shall satisfy all of the following:

"(1) Identify the [CCC's] area of original jurisdiction and provide a
process for obtaining coastal development permits [CDP's] from the
[CCC] directly in those areas.

"(2) Contain, but not be limited to, the following elements: the
type, size, intensity, and location of all development included in the
north coast corridor project; . . .

"(3) Establish the mitigation measures that [Caltrans] and SANDAG
will be required to undertake prior to construction of each phase.
The mitigation measures shall be described with sufficient detail to
allow [Caltrans] and SANDAG to accurately estimate the cost and
effort associated with each particular measure and avoid the need for
an amendment to the public works plan unless a project is
inconsistent with the project description in the approved public
works plan.

                                  17
            "(4) Establish the process by which project design and mitigation
            measures included in the public works plan, and the [CCC's]
            findings regarding those measures, may be applied to subsequent
            coastal development permit [CDP] approvals and other approvals or
            determinations for subsequent phases of the project."

In addition, section 103 provides that for all elements of the NCC project that are located

in the coastal zone, "SANDAG shall recommend that [Caltrans] select an alternative no

larger than the 8+4 Buffer Alternative as the preferred alternative for the [I-5] north coast

corridor . . . . The determination of the preferred alternative shall be made by [Caltrans]

and the Federal Highway Administration in their [EIR] or environmental impact

statement [EIS] . . . ." (§ 103, subd. (c)(3).) Section 103, subdivision (c) further

provides:

            "(6) Environmental consequences of the proposed north coast
            corridor project shall be monitored to ensure that the benefits from
            mitigation, as described in the permits issued for the individual
            projects, are being achieved. [¶] . . .

            "(8) Prior to a public works plan being submitted to the [CCC] by
            [Caltrans] and SANDAG, [Caltrans] and SANDAG shall provide at
            least two public hearings on the public works plan for the north coast
            corridor project."

       Importantly for this case, section 103, subdivision (d) provides in part:

            "The [CCC], [Caltrans], and SANDAG shall work cooperatively
            toward completing all design approvals, reviews, determinations,
            and permitting for the north coast corridor project on an expedited
            basis. To meet the goals of this section, the following provisions
            shall apply:

            "(1) The Legislature finds that it is the [CCC's] role to apply a
            regional or statewide perspective to land use debates where the use
            in question is of greater than local significance. To that end, the
            [CCC] is authorized to utilize Section 30515 of the Public Resources
            Code for the north coast corridor project and the process referenced

                                              18
          in that section may be streamlined pursuant to agreement between
          the California Coastal Commission [CCC] and those jurisdictions
          with an approved local coastal program [LCP].

          "(2) [Caltrans] and SANDAG shall perform work and complete
          development consistent with the phasing program adopted in the
          public works plan pursuant to subdivision (b) unless changes are
          reviewed and approved by the [CCC].

          "(3) A public works plan prepared for the north coast corridor
          project by [Caltrans] and SANDAG shall be treated as a long-range
          development plan to which the provisions in Sections 21080.5 and
          21080.9 of the Public Resources Code shall apply. . . ." (Italics
          added.)

Public Resources Code section 21080.09 defines a "long-range development plan" as "a

physical development and land use plan to meet the academic and institutional objectives

for a particular campus or medical center of public higher education."

       Public Resources Code section 21080.5, as referenced in section 103, provides for

certified regulatory programs that are exempt from certain CEQA provisions (e.g.,

preparation of an EIR), stating in part:

          "(a) . . . [W]hen the regulatory program of a state agency requires a
          plan or other written documentation containing environmental
          information and complying with paragraph (3) of subdivision (d) to
          be submitted in support of an activity listed in subdivision (b), the
          plan or other written documentation may be submitted in lieu of the
          environmental impact report [EIR] required by [CEQA] if the
          Secretary of the Resources Agency has certified the regulatory
          program pursuant to this section.

          "(b) This section applies only to regulatory programs or portions
          thereof that involve either of the following: [¶] (1) The issuance to
          a person of a lease, permit, license, certificate, or other entitlement
          for use. [¶] (2) The adoption or approval of standards, rules,
          regulations, or plans for use in the regulatory program.



                                            19
          "(c) A regulatory program certified pursuant to this section is
          exempt from Chapter 3 (commencing with Section 21100), Chapter
          4 (commencing with Section 21150), and Section 21167 [of the
          Public Resources Code] . . . ." (Italics added.)

To qualify for certification, a regulatory program must, inter alia, have rules and

regulations that: "[r]equire that an activity will not be approved or adopted as proposed if

there are feasible alternatives or feasible mitigation measures available that would

substantially lessen a significant adverse effect that the activity may have on the

environment"; and "[i]nclude guidelines for the orderly evaluation of proposed activities

and the preparation of the plan or other written documentation in a manner consistent

with the environmental protection purposes of the regulatory program." (Pub. Resources

Code, § 21080.5, subds. (d)(2)(A), (B).) The CCC's regulatory program for considering

and granting CDP's and its regulatory program for the preparation, approval, and

certification of LCP's have been certified by the Secretary of the Resources Agency.

(Guidelines, § 15251, subds. (c), (f).)

       Public Resources Code section 21080.9, also referenced in section 103, provides:

          "[CEQA] shall not apply to activities and approvals by any local
          government . . . or any state university or college . . . , as necessary
          for the preparation and adoption of a local coastal program [LCP] or
          long-range land use development program [LRDP] . . . ; provided,
          however, that certification of a local coastal program [LCP] or long-
          range land use development plan [LRDP] by the California Coastal
          Commission [CCC] . . . shall be subject to the requirements of
          [CEQA]. For the purpose of Section 21080.5, a certified local
          coastal program [LCP] or long-range land use development plan
          [LRDP] constitutes a plan for use in the California Coastal
          Commission's [CCC's] regulatory program." (Italics added.)




                                             20
                                               C

       The parties do not cite, and we are unaware of, any cases construing section 103

or, in particular, its specific provision (i.e., § 103, subd. (d)(3)) treating the PWP as a

long-range development plan (LRDP). Accordingly, we apply the rules of statutory

construction to decide, as a matter of first impression, whether section 103, together with

its references to Public Resources Code sections 21080.5 and 21080.9, provide Caltrans

with an exemption from CEQA's requirement that an EIR be prepared and circulated

before approving the Project. (Pub. Resources Code, § 21100 et seq.)

       Our review of section 103, by itself, does not reveal any language expressly

exempting Caltrans from CEQA's requirement that an EIR be prepared or circulated

before approving the Project. Caltrans implicitly concedes that, but argues that Public

Resources Code sections 21080.5 and 21080.9, which are referenced in section 103,

provide such an exemption. We disagree. The plain language of section 103, together

with its references to Public Resources Code sections 21080.5 and 21080.9, does not

show any intent to exempt Caltrans from CEQA's requirement that an EIR be prepared

and circulated before approving the Project. By providing that the PWP be treated as an

LRDP to which Public Resources Code sections 21080.5 and 21080.9 apply, section 103,

subdivision (d)(3), in effect, provides "that certification of [the PWP] . . . by the

California Coastal Commission [CCC] . . . shall be subject to the requirements of

[CEQA]." (Pub. Resources Code, § 21080.9.) Alternatively stated, when read together,

section 103, subdivision (d)(3) and Public Resources Code section 21080.9 provide that

the CCC, but not Caltrans, must comply with CEQA and, pursuant to Public Resources

                                              21
Code section 21080.5, subdivision (d), prepare substitute environmental documentation

when considering the certification and/or approval of the PWP. The CCC has a certified

regulatory program for approval of LCP's, but Caltrans does not have any certified

regulatory program. (Guidelines, § 15251.) Contrary to Caltrans's apparent assertion,

there is no language in those statutes that expressly provides that Caltrans is exempted

from CEQA's requirement that it prepare and circulate an EIR for the Project before

approving the Project. Caltrans either mistakenly conflates the PWP with the Project or

implicitly argues that the CCC's certification or approval of the PWP necessarily absolves

Caltrans of any requirement to prepare and circulate an EIR for the Project. We are

unpersuaded that those statutes exempt Caltrans from preparing and circulating an EIR

for the Project.

       The PWP includes a wide range of proposed projects for the NCC. Although one

of the PWP's proposed projects were improvements to the I-5/SR 56 interchange, the

PWP listed a number of alternatives and did not select or set forth any specific location or

plan for any of those alternative improvements. Therefore, because the PWP did not

include the Project, as defined in the FEIR, CCC's certification or approval of the PWP

did not include the Project. More importantly, Public Resources Code sections 21080.5

and 21080.9, as referenced in section 103, address the CCC's regulatory program for

LRDP's, and thus the PWP, and do not, expressly or implicitly address Caltrans's




                                            22
obligation to prepare and circulate an EIR for the Project before approving the Project.7

If, as Caltrans argues, the Legislature had intended section 103 to exempt Caltrans from

preparing and circulating an EIR for the Project, the Legislature presumably would have

made that intent clear by expressly providing for such an exemption. By not expressly

exempting from CEQA Caltrans's approval of the Project while doing so for the CCC's

certification or approval of the PWP, we infer the Legislature did not intend to exempt

Caltrans's approval of the Project. When the Legislature creates an express exemption

from CEQA for a certain plan or project, we cannot infer it also intended to create other

exemptions not expressly stated. (Cf. Wildlife Alive, supra, 18 Cal.3d at p. 195 ["where

exceptions to a general rule are specified by statute, other exceptions are not to be

implied or presumed"]; City of Coronado v. California Coastal Zone Conservation Com.

(1977) 69 Cal.App.3d 570, 580 ["[w]hen a statute expresses certain exceptions to a

general rule, other exceptions are necessarily excluded"].)




7      To the extent Caltrans argues that it should be treated as a state university or
college that is exempt from CEQA in adopting an LRDP under Public Resources Code
section 21080.09, section 103 does not expressly provide for such treatment and, in any
event, such treatment would only apply to Caltrans's adoption of the PWP and not its
subsequent approval of the Project. Furthermore, if state universities and colleges are
exempt from CEQA regarding proposed construction projects, we doubt there would be
so many CEQA cases involving challenges to EIR's prepared by state universities and
colleges for specific projects. (See, e.g., City of San Diego v. Board of Trustees of
California State University (2015) 61 Cal.4th 945, 949; City of Hayward v. Trustees of
California State University (2015) 242 Cal.App.4th 833, 836; Goleta Union School Dist.
v. Regents of University of California (1995) 37 Cal.App.4th 1025, 1028; Laurel Heights
Improvement Assn., supra, 47 Cal.3d at p. 387.)



                                             23
       Furthermore, had the Legislature intended to exempt the Project from CEQA's

requirements, it presumably knew how to do so by expressly setting forth such an intent.

For example, Public Resources Code section 21080.42 sets forth specific highway and

freeway projects that are exempt from CEQA. (See, e.g., Pub. Resources Code,

§ 21080.42, subd. (a) [exempting from CEQA "(1) U.S. Highway 101 interchange

modification, adding southbound auxiliary lane and southbound mixed flow lane, from

Interstate 280 to Yerba Buena Road, in Santa Clara County"; and "(2) Construct north

and southbound high-occupancy vehicle lanes on I-805 from I-5 to Carroll Canyon Road,

including construction of north-facing direct access ramps in San Diego County."].) If

the Legislature had intended to exempt the Project from CEQA, it could have easily

expressed such an intent in a statute with language similar to that in Public Resources

Code section 21080.42.

                                             D

       In support of its argument that section 103 exempts it from CEQA in approving

the Project, Caltrans primarily cites three cases. However, all three cases involve the

CCC's approval of LCP's and not a lead agency's (e.g., Caltrans's) approval of a specific

project under CEQA. Fudge v. City of Laguna Beach (2019) 32 Cal.App.5th 193

(Fudge), cited by Caltrans, involved a challenge to a CDP for a project that was issued by

a city pursuant to its LCP. (Id. at pp. 196-198.) Neighbors appealed the city's issuance of

the CDP to the CCC, which conducted a de novo review on the validity of the CDP based

on whether it complied with the Coastal Act (Pub. Resources Code, § 30000 et seq.) and

the city's LCP. (Id. at p. 198.) Fudge, citing Public Resources Code section 21080.5,

                                            24
upheld the CCC's de novo review of the CDP and affirmed the trial court's dismissal of

the neighbors' petition for writ of mandate.8 (Id. at pp. 197-198.)

       In Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900 (Ross), cited by

Caltrans, the court held that Public Resources Code sections 21080.5 and 21080.9

exempted both the CCC and the city from preparing an EIR prior to approval of an

amendment to the city's LCP. (Ross, at p. 940.) Instead of preparing an EIR, it was the

CCC's burden under its Public Resources Code section 21080.5 certified regulatory

program for approving LCP amendments to prepare the substitute environmental

documentation required in Public Resources Code section 21080.5, subdivision (d).9

(Ross, at pp. 930-931, 940.)

       Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa

Barbara (2004) 121 Cal.App.4th 864 (Santa Barbara County Flower), cited by Caltrans,

also involved a proposed amendment to an LCP. (Id. at p. 868.) The county submitted to

the CCC for its approval the proposed LCP amendment, along with an EIR for the

proposed amendment. (Ibid.) After a petition for writ of mandate was filed challenging


8       In so doing, Fudge aptly noted the complexity of the law when an issue, as in this
case, involves both CEQA and the Coastal Act, stating: "We venture once again into the
brambled thicket of [CEQA]—an area of the law largely governed by the unfortunate fact
that complicated problems often require complicated solutions. This case is rendered
more recondite by the involvement of the [CCC's] rules and procedures, effectively
overlaying the enigmatic with the abstruse." (Fudge, supra, 32 Cal.App.5th at p. 196.)

9      The CCC's regulatory program for approving LCP's was certified by the Secretary
of the Resources Agency in 1979. (Ross, supra, 199 Cal.App.4th at p. 931.)



                                            25
the EIR, the county realized that pursuant to Public Resources Code section 21080.5 it

was exempt from preparing an EIR for the LCP amendment and asserted that exemption

as a defense to the petition. (Ibid.) Santa Barbara County Flower affirmed the trial

court's dismissal of the petition, concluding that the county could belatedly assert its

Public Resources Code section 28010.5 exemption even though it had prepared an EIR

for the LCP amendment. (Id. at pp. 869, 873.) Citing Public Resources Code sections

21080.5 and 21080.9, the court concluded that neither the CCC nor the county was

required to prepare an EIR prior to approval of the LCP amendment. (Id. at p. 873.) In

particular, the court concluded the county was not estopped from raising that exemption

from preparing an EIR. (Id. at p. 876.)

       Because the cases cited by Caltrans involve LCP's under the CCC's certified

regulatory program and not approval of a project by a public agency pursuant to CEQA,

they are factually inapposite to the instant case and do not persuade us that Caltrans is

exempt from preparing and circulating an EIR for the Project. Rather, as discussed ante,

Public Resources Code sections 21080.5 and 21080.9 provide the CCC with a substitute

to EIR preparation when approving an LCP or LRDP (or amendments thereto). (See,

Pub. Resources Code, § 21080.5, subd. (d).) Therefore, to the extent section 103

provides that the PWP be treated as an LRDP under those statutes, the CCC likewise is

required to prepare only the substitute environmental documentation for the PWP as

required in Public Resources Code section 21080.5, subdivision (d). Neither section 103,

nor its referenced statutes, provide Caltrans with an exemption from CEQA's

requirement that an EIR be prepared and circulated for the Project.

                                             26
       Furthermore, Caltrans does not cite any legislative history showing that section

103's plain language, as discussed ante, should instead be interpreted as providing

Caltrans with an exemption from CEQA's requirement that an EIR be prepared and

circulated for the Project. In any event, section 103's legislative history cannot change

the plain meaning of section 103's language. (In re Steele (2004) 32 Cal.4th 682, 694

["Although legislative history often can help interpret an ambiguous statute, it cannot

change the plain meaning of clear language."].) Because the language of section 103,

along with Public Resources Code sections 21080.5 and 21080.9, "is unambiguous, we

need not consider various extrinsic aids, such as the purpose of the statute, the evils to be

remedied, the legislative history, public policy, or the statutory scheme encompassing the

statute." (Esberg, supra, 28 Cal.4th at p. 269.)

       Finally, although Caltrans cites language in section 103 that the approvals,

reviews, and permitting for the NCC projects in the PWP be completed "on an expedited

basis" and that the CCC's approval process for the PWP "be streamlined," that language

does not show an intent that Caltrans be exempted from CEQA's requirement to prepare

and circulate an EIR before approving the Project. Contrary to Caltrans's assertion, that

language shows only an intent that the CCC's approval process for the PWP be expedited

and streamlined and does not express any intent that Caltrans be exempted from CEQA's

requirements to prepare and circulate an EIR for the Project.




                                             27
                                              IV

                                     Equitable Estoppel

       CRCD contends the trial court also erred by sustaining Caltrans's demurrer to the

petition because the petition alleged facts showing equitable estoppel applies to preclude

Caltrans from raising the 35-day statute of limitations.

                                              A

       "The doctrine of equitable estoppel is based on the theory that a party who by his

declarations or conduct misleads another to his prejudice should be estopped from

obtaining the benefits of his misconduct. [Citation.] Under appropriate circumstances

equitable estoppel will preclude a defendant from pleading the bar of the statute of

limitations where the plaintiff was induced to refrain from bringing a timely action by the

fraud, misrepresentation or deceptions of the defendant." (Kleinecke v. Montecito Water

Dist. (1983) 147 Cal.App.3d 240, 245 (Kleinecke).) "A defendant should not be

permitted to lull his adversary into a false sense of security, cause the bar of the statute of

limitations to occur and then plead in defense the delay occasioned by his own conduct."

(Ibid.) "Statutes of limitations are not so rigid that under certain circumstances principles

of equity and justice will not allow them to be extended or tolled." (Id. at p. 247.)

       "To establish estoppel as an element of a suit the elements of estoppel must be

especially pleaded in the complaint with sufficient accuracy to disclose facts relied

upon." (Chalmers v. County of L.A. (1985) 175 Cal.App.3d 461, 467.) "In order to assert

equitable estoppel, the following four elements must be present: (1) the party to estopped

must be apprised of the facts; (2) he must intend that his conduct be acted on, or must so

                                              28
act that the party asserting estoppel had a right to believe it was so intended; (3) the party

asserting estoppel must be ignorant of the true state of facts; and (4) he must rely upon

the conduct to his injury." (Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238,

1250 (Sofranek).) "Whether equitable estoppel applies is normally a question of fact.

[Citation.] However, where the complaint pleads undisputed facts establishing that

equitable estoppel does not apply, the issue may be resolved on demurrer." (Id. at

p. 1251.) Alternatively stated, when "the facts are undisputed, the existence of an

estoppel is a question of law." (Cal. Cigarette Concessions v. City of L.A. (1960)

53 Cal.2d 865.)

       A public agency may be equitably estopped in the same manner as a private party.

(Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 440; Long Beach v. Mansell

(1970) 3 Cal.3d 462, 496 (Long Beach).) "[C]onduct on behalf of a public agency, which

would induce a reasonably prudent person to avoid seeking legal advice or personally

commencing litigation, may estop the public agency from asserting a claims

defense . . . ." (Bertorelli, at p. 440.) "The government may be bound by an equitable

estoppel in the same manner as a private party when the elements requisite for such an

estoppel against a private party are present and, in the considered view of a court of

equity, 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." (Long Beach, at pp. 496-497.)




                                              29
                                              B

       As discussed ante, on appeal from a judgment of dismissal after a demurrer has

been sustained, "[w]e treat the demurrer as admitting all material facts properly pleaded

but not contentions, deductions or conclusions of fact or law." (Mitchell, supra,

1 Cal.App.5th at p. 1007.) We may also consider matters that have been judicially

noticed, but must disregard allegations that are contrary to law or facts judicially noticed.

(Serrano, supra, 5 Cal.3d at p. 591; Blank, supra, 39 Cal.3d at p. 318.)

       Based on our independent review of CRCD's petition for writ of mandate and

declaratory relief, we conclude it alleged sufficient facts, which we assume to be true for

purposes of demurrer, showing that Caltrans is equitably estopped from relying on the

35-day statute of limitations for challenging notices of exemption. In particular, the

petition's introduction alleged that Caltrans "assur[ed] the public in its [DEIR] and

[FEIR] that Caltrans would file [an NOD] if the decision were made to approve the

[P]roject." It alleged: "Caltrans provided no notice to either those who commented on

the [DEIR] or to members of the general public that Caltrans intended to change course

and filed a NOE instead of a NOD." It further alleged: "Interested parties relied upon

Caltrans'[s] prior assurances that it would file a NOD if the Project were approved.

Therefore, Caltrans is estopped from now asserting the statute of limitations has run

following its unanticipated filing of a NOE."

       The petition alleged, inter alia, the following facts:

          "15. The [DEIR] stated, "Following circulation of the [FEIR], if the
          decision is made to approve the [P]roject, a [NOD] will be
          published for compliance with [CEQA] . . . .

                                              30
          "16. Under the heading, 'Final Decision-Making Process,' the
          [DEIR] also stated, 'After the public circulation period, all comments
          would be considered, and Caltrans would select a preferred
          alternative and make the final determination of the proposed
          project's effect on the environment. In accordance with CEQA,
          Caltrans would certify that the proposed project would comply with
          CEQA, would prepare findings for all significant impacts identified,
          would prepare a Statement of Overriding Considerations for impacts
          that would not be mitigated below a level of significance, and would
          certify that the findings and Statement of Overriding Considerations
          were considered before project approval. Caltrans then would file a
          [NOD] with the State Clearinghouse . . . . [¶] . . .

          "18. On June 26, 2017, Caltrans released the [FEIR]. The [FEIR]
          stated: 'After the [FEIR] is circulated, if Caltrans decides to
          approve the [P]roject, a [NOD] will be published in compliance with
          CEQA by Caltrans . . . .

          "19. The [FEIR] added that the [FEIR] did not constitute project
          approval for CEQA, but that the signing of the Project Report and
          filing of the [NOD] would constitute the approval for CEQA
          purposes. . . . [¶] . . .

          "21. On July 12, 2017, unbeknownst to interested community
          members, including members of CRCD, OPR posted the NOE for
          the Project. [¶] . . .

          "23. Counsel for CRCD first became aware that an NOE had been
          prepared for the Project on September 28, 2017, when Ms. Rachel
          Hooper . . . informed [CRCD's counsel] that Mr. Glenn Mueller,
          Caltrans'[s] counsel, told her that Caltrans issued a [NOE] on July
          12, 2017. . . ." (Italics added.)

       In its first cause of action, the petition alleged that the PWP stated: " 'The [CCC]

PWP review and approval process is not intended to supplant the review processes

required by [CEQA], [NEPA] or other regulatory schemes; compliance with the CEQA,

NEPA and/or other regulatory schemes are addressed at the project level, such as . . . the

I-5 [EIR].' " (Italics added.) Importantly, the petition further alleged: "Caltrans


                                             31
informed the public in its [DEIR] and [FEIR] that it would file a [NOD]. When Caltrans

filed a NOE instead, Caltrans made no effort to inform the public of this significant

change. As a result of Caltrans'[s] failure to inform the public and the public's

detrimental reliance upon Caltrans'[s] repeated statements that it would file a NOD,

Caltrans is estopped from arguing that the 35-day statute of limitations to challenge the

Project has run." (Italics added.) In support of the petition, CRCD attached exhibits,

including excerpts from the DEIR and FEIR, which supported the petition's factual

allegations.

        In demurring to the petition, Caltrans argued that because on July 12, 2017, it

filed, and the OPR posted, the NOE for the Project, the Public Resources Code section

21167, subdivision (d), 35-day statute of limitations barred the petition, which was not

filed until November 1, 2017. Caltrans also argued equitable estoppel did not apply to

preclude its statute of limitations defense because the FEIR "repeatedly stated that

Caltrans viewed [the] Project as CEQA exempt so [CRCD] had notice that Caltrans

would file a NOE." In support of that assertion, Caltrans attached excerpts from the

FEIR.

        In opposition to the demurrer, CRCD argued, inter alia, that Caltrans was

equitably estopped from asserting the 35-day statute of limitations based on Caltrans's

"statements and conduct that led [CRCD] to believe Caltrans would not approve the

Project until August 15 at the earliest, and that, when Caltrans did approve the Project, it

would issue an NOD, not an NOE." CRCD argued:



                                             32
          "It is undisputed that Caltrans knowingly issued a Final Project
          Report approving the Project just four days after releasing an FEIR
          that informed the public that Project approval would occur only after
          the FEIR's circulation period. It is also undisputed that Caltrans
          filed an NOE approximately two weeks later, despite repeatedly
          declaring it would publish an NOD."

In support of its assertion that Caltrans had represented it would approve the Project only

after circulation of the FEIR, CRCD cited an excerpt from the FEIR, which stated:

"After the [FEIR] is circulated, if Caltrans decides to approve the [P]roject, a [NOD] will

be published in compliance with CEQA . . . ." CRCD also argued that it was unaware

that Caltrans had approved the Project and filed an NOE until September 28, 2017.

CRCD further argued that it reasonably relied on Caltrans's assurances that it would not

approve the Project until after the FEIR had been circulated and would publish an NOD if

Caltrans approved the Project. CRCD argued it had been injured by its reliance on

Caltrans's representations because it had delayed searching for approval documents until

after the FEIR circulation period and then only searched for an NOD and not an NOE,

thereby missing an opportunity to challenge the Project's approval. CRCD argued that

because it alleged sufficient facts showing Caltrans is equitably estopped from raising the

35-day statute of limitations defense, the demurrer should be denied. In support of its




                                            33
opposition, CRCD filed a request for judicial notice of certain documents, including all

exhibits attached to the petition and certain excerpts from the PWP and FEIR.10

       Our review of the petition's factual allegations, which we assume to be true, the

documents attached to the petition, and those documents judicially noticed by the trial

court, shows that there is, at a minimum, a disputed question of fact regarding whether

the elements of equitable estoppel are satisfied; namely, whether: (1) Caltrans knew the

true facts that it would not circulate the FEIR before approving the Project and would file

an NOE, instead of an NOD, after such approval; (2) Caltrans made misleading

statements of fact that it would circulate the FEIR before approving the Project and then

file an NOD after such approval, which statements it intended to be acted on or that

CRCD had a right to believe were intended to be acted on; (3) CRCD was ignorant of the

true state of facts; and (4) CRCD relied upon Caltrans's conduct to its injury. (Sofranek,

supra, 146 Cal.App.4th at p. 1250; Kleinecke, supra, 147 Cal.App.3d at pp. 245, 247.)

       In particular, the documents submitted by CRCD support a reasonable inference

that Caltrans knew the true facts that it would not circulate the FEIR before approving the

Project and would file an NOE, instead of an NOD, after such approval, but nevertheless

made misleading statements of fact that it would circulate the FEIR before approving the




10     In sustaining only Caltrans's objections to other documents for which CRCD
requested judicial notice, the trial court, in ruling on the demurrer, implicitly granted
CRCD's request for judicial notice of the exhibits to the petition, the PWP, and the FEIR
(as well as the 2013 FEIR for the NCC I-5 widening project).



                                            34
Project and then file an NOD after such approval, which statements CRCD had a right to

believe were intended to be acted on. After section 103's enactment as of January 1,

2012, Caltrans stated in its April 2012 DEIR: "Following circulation of the [FEIR], if the

decision is made to approve the [P]roject, a [NOD] will be published for compliance with

[CEQA] . . . ." In its 2013 FEIR for the NCC I-5 widening project, Caltrans stated that

section 103 "is not intended to eliminate project-specific [CEQA] . . . review[]; rather, it

provides for integrated regulatory review by the [CCC]." That 2013 FEIR also stated that

the I-5 widening project and the Project were both "independently evaluated under

CEQA . . . ."

       In its 2014 PWP, Caltrans stated: "The [CCC] PWP review and approval process

is not intended to supplant the review processes required by [CEQA] . . . or other

regulatory schemes; compliance with the CEQA . . . [or] other regulatory schemes are

addressed at the project level . . . ." The PWP also stated that when Caltrans submitted an

NOID for a specific NCC project, it must attach a project report that includes

"[e]nvironmental documentation for the proposed development prepared pursuant to

CEQA" and findings that the "proposed development has been reviewed in compliance

with CEQA."

       Importantly, in its June 2017 FEIR for the Project, Caltrans continued to represent

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

NOD in compliance with CEQA, stating: "After the [FEIR] is circulated, if Caltrans

decides to approve the [P]roject, a [NOD] will be published in compliance with CEQA

by Caltrans . . . ."

                                             35
       The undisputed statements made by Caltrans in the 2012 DEIR, the 2013 FEIR for

the I-5 widening project, the 2014 PWP, and the 2017 FEIR, as quoted ante, support a

reasonable inference that Caltrans made representations to CRCD and the public that it

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

with the OPR in compliance with CEQA's requirements. To the extent Caltrans cites

contrary statements that it made in the 2017 FEIR, those statements do not preclude, as a

matter of law, the reasonable inference that Caltrans made representations to CRCD and

the public that it would approve the Project only after circulation of the FEIR and then

would file an NOD in compliance with CEQA.11

       It is undisputed that Caltrans issued its project report approving the Project on

June 30, 2017, only a few days after issuing its FEIR for the Project and before the

30-day circulation period began for the FEIR. It is further undisputed that on July 12,

again before the 30-day circulation period for the FEIR commenced, Caltrans filed with

the OPR an NOE for the Project, claiming that the Project is statutorily exempt from

CEQA pursuant to section 103 and Public Resources Code sections 21080.5, subdivision

(c) and 21080.9. Despite its NOE's claim of exemption, Caltrans nevertheless thereafter




11     Those contrary statements are set forth on pages 7 and 8 of this opinion. For
example, the 2017 FEIR stated that section 103 and Public Resources Code section
21080.5 "mandate that instead of being analyzed under CEQA, . . . all of the [NCC]
projects . . . shall be addressed under the [CCC's] review per its certified regulatory
program." It further stated: "Public Resources Code section 21000 et[] seq.[] no longer
applies to the environmental review of the Project . . . ."



                                             36
proceeded to circulate the FEIR for public comment from July 14, 2017, through August

14, 2017, received comments on the FEIR from municipalities, organizations, and the

general public, and responded to those comments. Based on those facts, it can be

reasonably inferred that 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. Therefore, the petition's factual allegations and the documents attached thereto

and judicially noticed support a reasonable inference that the first two elements of

equitable estoppel are satisfied. (Sofranek, supra, 146 Cal.App.4th at p. 1250; Kleinecke,

supra, 147 Cal.App.3d at pp. 245, 247.)

       We further conclude that CRCD alleged sufficient facts showing that: (1) CRCD

was unaware of Caltrans's position that it was exempt from CEQA and would approve

the Project and file an NOE, instead of an NOD, without first circulating the FEIR; and

(2) CRCD reasonably relied on Caltrans's misrepresentations that it would circulate the

FEIR before approving the Project and would then file an NOD in compliance with

CEQA. In particular, the petition alleged that on July 12, 2017, "unbeknownst to . . .

members of CRCD, OPR posted the NOE for the Project." The petition further alleged

that prior to August 10, 2017, CRCD's counsel checked OPR's database for notices

posted regarding the Project and did not find the NOE at that time and first became aware

of the NOE on September 28, 2017. The petition further alleged: "When Caltrans filed a

NOE instead [of an NOD], Caltrans made no effort to inform the public of this significant

                                            37
change. As a result of Caltrans'[s] failure to inform the public and the public's

detrimental reliance upon Caltrans'[s] repeated statements that it would file a NOD,

Caltrans is estopped from arguing that the 35-day statute of limitations to challenge the

Project has run." CRCD's allegations that it did not learn of Caltrans's approval of the

Project and its filing of the NOE before the 35-day statute of limitations period had run

support a reasonable inference that CRCD was unaware of Caltrans's position that it was

exempt from CEQA and would approve the Project and file an NOE, instead of an NOD,

without first circulating the FEIR and reasonably relied on Caltrans's misrepresentations

that it would circulate the FEIR before approving the Project and would then file an NOD

in compliance with CEQA. Alternatively stated, CRCD's allegations support a

reasonable inference that it was ignorant of the true state of facts and relied on Caltrans's

conduct to its injury. (Sofranek, supra, 146 Cal.App.4th at p. 1250.)

       Because CRCD alleged sufficient facts in its petition and submitted supporting

documents to support a finding that all of the elements of equitable estoppel were

satisfied, Caltrans's demurrer to the petition on the ground that the 35-day statute of

limitations barred CRCD's claims should have been overruled and the trial court erred by

sustaining the demurrer. Assuming the truth of facts alleged in the petition and the

conflicting statements made by Caltrans favorably to CRCD, we cannot conclude, as a

matter of law, that CRCD has failed to state a cause of action against Caltrans for

violation of CEQA. As stated ante, " '[a] demurrer based on a statute of limitations will

not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the

bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the

                                             38
face of the complaint; it is not enough that the complaint shows that the action may be

barred. [Citation.]' [Citation.]" (Geneva Towers Ltd. Partnership, supra, 29 Cal.4th at

p. 781.) Alternatively stated, "when the relevant facts are not clear such that the cause of

action might be, but is not necessarily, time-barred, the demurrer will be overruled."

(Coalition for Clean Air, supra, 209 Cal.App.4th at p. 420.) Here, we have such a case.

Because we cannot, as a matter of law, determine that equitable estoppel does not apply

to preclude Caltrans's assertion of the 35-day statute of limitations and we concluded ante

that section 103 does not exempt Caltrans from preparing and circulating an EIR before

approving the Project and from filing an NOD for the Project, Caltrans's demurrer should

have been overruled and the trial court's order sustaining the demurrer must be reversed.

In so concluding, we do not make any comment on the ultimate merits of the case.

       To the extent Caltrans argues that CRCD did not allege CRCD would suffer an

injustice from a failure to apply equitable estoppel sufficient to justify its effect on public

interest or policy, we disagree. (Long Beach, supra, 3 Cal.3d at pp. 496-497.) It is

implicit within the petition's allegations that the application of the 35-day statute of

limitations would bar CRCD's causes of action and, in effect, allow Caltrans to proceed

with the Project despite its alleged noncompliance with CEQA in approving the Project.

Caltrans does not cite any public interest or policy that supports a position that a

government agency should be allowed to make misrepresentations to the public regarding

its intent to comply with CEQA in approving a project and then, in effect, secretly

approve the project without compliance with CEQA and erroneously file an NOE for the



                                              39
project. Accordingly, in this case CRCD has alleged sufficient facts to survive Caltrans's

demurrer.12

                                      DISPOSITION

       The judgment is reversed; the matter is remanded for further proceedings with

directions that the superior court vacate its order sustaining the demurrer and issue a new

order overruling the demurrer. CRCD is entitled to its costs on appeal.


                                                                      BENKE, Acting P. J.

WE CONCUR:



O'ROURKE, J.



DATO, J.




12      Because we dispose of this appeal based on the inapplicability of section 103 and
the potential application of equitable estoppel to preclude the application of the 35-day
statute of limitations, we need not, and do not, address CRCD's additional contentions
that the NOE was given an improper identification number by the State Clearinghouse
and/or insufficiently posted by the OPR such that the 35-day statute of limitations was
not triggered.



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