In a partially published opinion filed June 5, 2026, the First District Court of Appeal (Div. 1) affirmed a judgment entered after Defendant and Respondent Bay Area Toll Authority’s (BATA) demurrer brought on statute of limitations grounds to a CEQA action challenging the “Bay Lights 360” Bay Bridge illumination project was sustained without leave to amend. The lawsuit, which was the second CEQA challenge to Bay Lights 360 filed by Plaintiff and Appellant Mark Baker, was held barred because (1) Baker’s allegations regarding an encroachment permit issued by Caltrans to implement lead agency BATA’s project did not restart the statute of limitations, and (2) he was precluded from relitigating the statute of limitations issues that were conclusively resolved against him in his first action and resulted in that action’s dismissal. The Court’s opinion analyzed the judicial confusion sown by the “on the merits” requirement included in some articulations of the issue preclusion doctrine, but, assuming its applicability, held that that requirement was satisfied by a prior dispositive demurrer ruling based on the statute of limitations. Mark Baker v. Bay Area Toll Authority (Illuminate the Arts, Real Party in Interest) (2026) ___ Cal.App.5th ___.
History of the Project and Related Litigation
The Bay Lights art installation began in 2012. In earlier versions of the project – all of which lead agency BATA declared CEQA-exempt and filed notices of exemption (NOEs) for – LEDs were installed on the exterior of the Bay Bridge’s suspension cables. BATA filed the NOE for Bay Lights 360, which adds interior lights facing drivers on the bridge and approximately doubles the total number of LEDs, in August 2023.
In October 2024, Caltrans issued an encroachment permit conditionally approving BATA’s planned installation of Bay Lights 360, requiring a study of the inward-facing lights’ effects on motorists, and requiring development and completion of a comprehensive safety test prior to activation, as specified in the permit.
In December 2024, Baker (who is President of the Soft Lights Foundation and an advocate for persons adversely affected by LED light) filed his first CEQA action challenging BATA’s approval of Bay Lights 360 against BATA, Caltrans and other agencies. After BATA demurred, the trial court found that action (Baker I) was barred by both CEQA’s 35-day statute of limitations (triggered by the 2023 NOE) and its 180-day statute of limitations (running from BATA’s decision to approve or carry out the project, which the trial court found occurred not later than early 2023). Judgment was entered in May 2025 and Baker did not appeal.
Instead, shortly after the trial court ruled against him in Baker I, Baker filed his second action (Baker II) asserting a single CEQA claim against BATA focusing on Caltrans’ encroachment permit, which Baker claimed to have received in April 2025 through a PRA request. Baker II was premised on the contention that the light-testing and study required by the Caltrans permit was a “stand-alone” project under CEQA “not acknowledged” in the 2023 NOE and required preparation of an EIR. BATA again demurred, arguing that Caltrans’ encroachment permit did not give rise to a new project or restart the CEQA statute of limitations to challenge its approval of Bay Lights 360, and that Baker’s CEQA claim remained time-barred and he was precluded from relitigating that issue by the trial court’s previous rulings against him on it in Baker I.
The trial court agreed, rejecting Baker’s “revived” argument that the 2023 NOE was ineffective when filed because BATA hadn’t yet approved the project, as well as his arguments that the Caltrans permit dramatically altered the project’s scope and “mooted” the 2023 NOE. The trial court found its prior determinations regarding when the project was approved for CEQA purposes and when the statute of limitations to challenge it expired were preclusive as Baker failed to appeal those adverse rulings. Judgment for BATA was entered in Baker II in October 2025, and the Court of Appeal affirmed that judgment on Baker’s appeal.
The Court of Appeal’s Opinion
The initial “legal background” section of the published portion of the opinion’s discussion briefly discusses CEQA exemptions; CEQA’s 35-day limitations period (as triggered by NOE filing), and CEQA’s maximum 180-day limitations period (as triggered by project approval, commencement or substantial post-NOE project modification); and the standard of review of orders sustaining demurrers.
But the heart of the published opinion is its issue preclusion analysis supporting affirmance of the trial court’s denial of leave to amend. The opinion notes that the issue preclusion doctrine’s “ancient roots” and evolution over time have resulted in complexity and somewhat differing judicial articulations of its requirements. One fairly recent Supreme Court decision describes issue preclusion as having 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.’” (Quoting Samara v. Matar (2018) 5 Cal.5th 322, 327.) A more recent Supreme Court decision “renumbers the requirements and adds to the finality requirement[,]” setting them forth as follows: “ ‘ “First, the issue … must be identical to that 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.” ’ ” (Quoting People v. Curiel (2023) 15 Cal.5th 433, 451-452, italics added by Court of Appeal.)
BATA argued that the “on the merits” requirement applies only to claim preclusion, not issue preclusion, based on the omission of that language from several cases’ recitations of the latter doctrine’s requirements. The Court of Appeal noted that none of BATA’s cited cases actually so held, however, and observed that there is contrary authority holding that the “on the merits” requirement applies to both claim and issue preclusion. (Citing Parkford Owners for a Better Community v. Windeshausen (2022) 81 Cal.App.5th 216, 227, as holding where appeal in prior action disposed of it on grounds of mootness and not the merits, neither doctrine applied.) Ultimately, the Court of Appeal found that it need not resolve the issue because even assuming the “on the merits” requirement applies to issue preclusion, that and all other elements of the doctrine were satisfied on this case.
Since no one disputed that the trial court’s Baker I ruling became final after Baker failed to appeal, and that Baker is the party against whom the relevant issues were decided in both actions, the Court focused its analysis on the other requirements of issue preclusion. It had little trouble concluding that the trial court in Baker I rejected the very same statute of limitations arguments Baker raised in his Baker II appellate briefs (meeting the “identical issues” requirement) and that those issues were actually litigated and necessarily decided by the trial court’s order granting BATA’s demurrer in Baker I.
It then addressed at length and rejected Baker’s “main argument” against applying issue preclusion, which was that a demurrer ruling that an action is barred by the statute of limitations is not “on the merits.” In closely examining the case law authorities relied on by Baker, the Court found any statements to that effect were merely dicta, that the “on the merits” language was potentially misleading and had generated some confusion in the area because it “is a poor fit to this procedural context,” and that relevant holdings require issue preclusion to be applied to dispositive statute of limitations issues decided on demurrer when – as in the case before it – the losing plaintiff “seeks to relitigate the exact same arguments concerning the statute of limitations that were resolved against him in the first action.” The “on the merits” requirement was thus satisfied.
Finally, the Court held that “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 –” (quoting Lucido v. Superior Court (1990) 51 Cal.3d 335, 343)all supported applyingthe doctrine as “[i]t 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.” It found that allowing issues to be repetitiously litigated in the context of CEQA’s purposely short statutes of limitation, which are intended to ensure “finality and predictability,” “would be especially problematic.” Having foregone the available remedy of a direct appeal to challenge the Baker I demurrer ruling, Baker effectively acquiesced in it and allowed it to become final and conclusive so as to preclude his later relitigation of the issues already adjudicated by it – which were dispositive of his CEQA claim challenging Bay Lights 360.
Conclusion and Implications
While the “on the merits” element may or may not actually be a requirement for application of the issue preclusion doctrine – an issue the Supreme Court may someday resolve – the Court of Appeal’s opinion here makes clear that, even assuming it is, it is satisfied by a final ruling on demurrer that a CEQA action is barred by the statute of limitations. Indeed, the public policy reasons underlying both the issue preclusion doctrine and CEQA’s short statutes of limitation – chief among them being concerns for finality and predictability – would be completely undermined by any other conclusion. The opinion’s lessen for plaintiffs is obvious: directly appeal from adverse rulings if you don’t want them to become final and conclusive, and don’t attempt to relitigate them and hope for a different result in a new serial action.
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