Alliance for Cal. Business v. State Air Resources Bd. CA3

Filed 8/3/21 Alliance for Cal. Business v. State Air Resources Bd. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

ALLIANCE FOR CALIFORNIA BUSINESS et al., C088780

Plaintiffs and Appellants, (Super. Ct. No. 34-2016-
80002491-CU-WM-GDS)
v.

STATE AIR RESOURCES BOARD et al.,

Defendants and Respondents.

In Alliance for California Business v. State Air Resources Bd. (2018) 23
Cal.App.5th 1050 (Alliance), this Court held that only the Ninth Circuit Court of Appeals
has jurisdiction to consider legal challenges to a regulation requiring heavy trucks and
machinery in California to comply with diesel particulate filter requirements.1 (Id. at

1 “Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen
and Other Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled Vehicles.” (Cal.
Code Regs., tit. 13, § 2025.) We refer to this as the Regulation.

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pp. 1061-1062.) A diesel particulate filter “is a highest level verified diesel emission
control strategy (also known as ‘Highest level VDECS’) to reduce diesel particulate
emissions required by the Regulation for retrofitting pre-2007 engines.” (Id. at p. 1055,
fn. 5, citing Cal. Code Regs., tit. 13, § 2025, subds. (d)(18), (35), (60), (e)-(g).) Alliance
affirmed the dismissal of an action filed in Glenn County Superior Court by the Alliance
for California Business (Alliance)2 to challenge the “ ‘legality [of the Regulation], as
designed, approved, and implemented by defendants.’ ”3 (Alliance, at p. 1057.) Alliance
centered on the argument that Alliance’s “members would suffer irreparable harm if the
Regulation is implemented and enforced because they would be ‘forced to install an
unproven, defective and dangerous technology, to wit the [diesel particulate filter]
device’ or suffer fines, penalties, and lost revenue due to the inability to operate their
trucks in California.” (Ibid.)
This case was pending in Sacramento Superior Court when the decision in
Alliance issued. With the benefit of guidance in Alliance, the trial court in this case
determined that it lacked subject matter jurisdiction to adjudicate claims that the Board

2 Alliance is a plaintiff both in Alliance and this case.

In this case, additional plaintiffs in the trial court were Associated California
Loggers, California Groundwater Association, Mobile Crane Operator’s Group, Inc., Bud
Caldwell, Jim Paiva, Richard McGowan, Tony Hobbs, and Jason Daniels. Hobbs is
deceased and not a party to this appeal. We refer to these plaintiffs (minus Hobbs) as the
individual plaintiffs.
3 Defendants in Alliance included the State Air Resources Board. (Alliance, supra,
23 Cal.App.5th at p. 1054.) Defendants in this case also include Richard Corey (in his
personal capacity & as executive officer of the Board), and Mary D. Nichols (in her
personal capacity & as chair of the Board). We refer to the State Air Resources Board,
Corey, and Nichols collectively as the Board.

Additional defendants in this case are the Transportation Agency, Department of
Motor Vehicles, and the Department of Industrial Relations Division of Occupational
Safety and Health. We refer to these additional defendants as the non-Board defendants.

2
improperly implemented the Regulation. The trial court also determined that the statute
of limitations and failure to exhaust administrative remedies barred the single cause of
action advanced by the individual plaintiffs.
On appeal, plaintiffs contend (1) the trial court erred in determining that it lacked
jurisdiction to adjudicate Alliance’s claims, (2) the individual plaintiffs’ claims were
timely filed and properly exhausted under the circumstances of the procedure urged by
the Board, (3) the trial court mistakenly believed that it lacked power to order the Board
to grant the safety exemption to the individual plaintiffs, and (4) plaintiffs are able to
amend their first amended complaint to state legally viable causes of action.
We conclude that the trial court properly granted defendants’ demurrers without
leave to amend. As the prayer for relief in the first amended complaint makes clear, this
action essentially seeks to invalidate the Regulation. The plaintiffs’ proposed second
amended complaint indicates a continued focus on invalidating or indefinitely suspending
the Regulation. Plaintiffs’ attack on the regulation lies within the exclusive jurisdiction
of the Ninth Circuit. We further conclude that the individual plaintiffs’ sixth cause of
action is barred for failure to comply with the applicable statute of limitations.
Accordingly, we affirm.
BACKGROUND

The Truck and Bus Regulation
To provide context for the issues in this case, we draw on this court’s discussion of
the Regulation set forth in Alliance. Alliance explained that the Regulation arises under
the federal Clean Air Act (42 U.S.C. § 7401 et seq.) (Act). (Alliance, supra, 23
Cal.App.5th at p. 1053.) “The Act authorizes the United States Environmental Protection
Agency (Agency) to promulgate national primary and secondary ambient air quality
standards. (42 U.S.C. §§ 7408, 7409.) States, however, have the ‘primary responsibility
for assuring air quality’ and must each devise, adopt, and implement a state

3
implementation plan . . . specifying how the state will achieve and maintain the national
air quality standards. (Id., § 7407(a).) The [state implementation plan] is submitted to
the Agency’s administrator (Administrator) for approval. (Id., § 7410(a)(1), (3)(B).)”
(Id. at p. 1053.)
Alliance further explained:
“The Administrator is required to approve the state’s [state implementation plan]
submission if it complies with the provisions of the Act and applicable federal
regulations. (42 U.S.C. § 7410(k); 40 C.F.R. § 52.02(a) (2017).) Among other things,
the [state implementation plan] must contain ‘enforceable emission limitations and other
control measures, means, or techniques . . . as well as schedules and timetables for
compliance,’ and provide ‘necessary assurances that the State . . . will have adequate
personnel, funding, and authority under State (and, as appropriate, local) law to carry out
such implementation plan (and is not prohibited by any provision of Federal or State law
from carrying out such implementation plan or portion thereof).’ (42 U.S.C.
§ 7410(a)(2)(A), (E).)
“In May 2011, the Board submitted the Regulation to the Agency for inclusion in
California’s [state implementation plan]. (76 Fed.Reg. 40652, 40653 (July 11, 2011).)
The Board had adopted the Regulation in 2008 to help California meet the national
standards for fine particulate matter and ozone. (Cal. Code Regs., tit. 13, § 2025,
subd. (a); [Cal. Dump Truck Owners Ass’n. v. Nichols (9th Cir. 2015)] 784 F.3d [500,]
503.) The Regulation generally sets forth stated deadlines by which certain diesel
vehicles operating in California must be retrofitted with diesel particulate filters or
upgraded to newer model engines with those filters. (Cal. Code Regs., tit. 13, § 2025,
subds. (b), (d)(18), (35), (60), (e)-(g); 76 Fed.Reg., supra, at pp. 40654-40655.) The
filters are verified by the Board, as required by the Regulation, pursuant to the
[‘Verification Procedure, Warranty and In-Use Compliance Requirements for In-Use
Strategies to Control Emissions from Diesel Engines.’ (Cal. Code Regs., tit. 13, §§ 2700-

4
2711)], which sets forth the procedures and requirements for manufacturers to obtain
verification of their filters. (Cal. Code Regs., tit. 13, §§ 2025, subd. (d)(18), (35), (60), &
2700-2711.)
“On July 11, 2011, the Agency published a proposed rule to approve California’s
request to incorporate the Regulation and other regulations into its [state implementation
plan]. (76 Fed.Reg., supra, at p. 40652.) The Agency explained the requirements and
key concepts of the Regulation, including the requirements relating to the filters verified
pursuant to the verification procedure. (76 Fed.Reg., supra, at pp. 40654-40656.) As
part of its analysis, the Agency discussed the enforceability of the Regulation and found
the state has adequate legal authority to implement the regulations. (76 Fed.Reg., supra,
at pp. 40658-40659.) It further determined it ‘kn[e]w of no obstacle under Federal or
State law in [the Board’s] ability to implement the regulations.’ (76 Fed.Reg., supra, at
p. 40658.)
“On April 4, 2012, the Agency issued its final rule approving the Board’s [state
implementation plan] submission, noting it received no comments on its proposed rule.
(77 Fed.Reg. 20308-20314 (Apr. 4, 2012).) The Regulation was incorporated into
California’s [state implementation plan] by reference. (40 C.F.R. § 52.220(c)(410)
(2017).) In the final rule notice, the Agency reiterated the basis it used to evaluate the
Regulation, including its determination that the state provided the necessary assurances
required under the Act. (77 Fed.Reg., supra, at p. 20311.)” (Alliance, supra, 23
Cal.App.5th at pp. 1055-1056, fns. omitted.)

The Present Case
In November 2016, Alliance and the individual plaintiffs filed a complaint for
declaratory relief in Sacramento County Superior Court. The complaint requested relief
in the form of a declaration that diesel particulate filters “are inherently unsafe and
mechanically unreliable,” and that their requirement in California vehicles be largely

5
prohibited. The complaint also requested that a writ of mandate issue to grant individual
plaintiffs a safety exemption from the diesel particulate filter retrofit requirement.
In January 2018, Alliance and the individual plaintiffs filed a first amended
complaint for declaratory and injunctive relief. Like the original complaint, the first
amended complaint requested relief in the form of a declaration that the diesel particulate
filters are inherently unsafe and mechanically unreliable. The first amended complaint
added requests for declarations that the diesel particulate filters violated various federal
constitutional provisions in addition to a declaration that the diesel particulate filter is not
the best available control technology for reducing emissions. The individual plaintiffs
sought relief suspending the diesel particulate filter requirement, implementing a new
exemption process, and allowing owners and operators of buses to remove their diesel
particulate filters.
The Board demurred and moved to strike the first amended complaint. The Board
argued that exclusive concurrent jurisdiction barred this case because the same issues
were pending in this court in Alliance, only the Ninth Circuit had subject matter
jurisdiction, the trial court could not grant mandate relief by ordering the Board to
exercise its discretion in a specific manner, and the individual plaintiffs’ request for relief
was barred by the statute of limitations. The non‑Board defendants separately demurred
on grounds that there was no case or controversy between the plaintiffs and the
non‑Board defendants. Plaintiffs opposed the demurrers filed by the Board and
non‑Board defendants.
On March 26, 2018, the trial court in this case stayed the action pending decision
by this court in Alliance. On July 18, 2018, the trial court continued the stay while
Alliance sought review of Alliance in the California Supreme Court. After the California
Supreme Court denied review of Alliance, plaintiffs in this case sought leave to file a
second amended complaint.

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 After a hearing, the trial court sustained without leave to amend the demurrers of
the Board and non‑Board defendants. As to the Board, the trial court determined that it
lacked subject matter jurisdiction because Alliance’s action effectively challenged the
Regulation itself. The trial court reasoned, “All parties agree the only way to comply
with the Regulation is by installing a [diesel particulate filter]. Thus, if this court were to
strike down the [diesel particulate filter] requirement, it would also, as a practical matter,
vitiate the Regulation – something this court lacks jurisdiction to do.”
The trial court sustained the non-Board defendants’ demurrers on several grounds.
Specifically, the trial court determined that the individual plaintiffs’ challenges to the
Regulation were untimely for not having been filed within 30 days of the Regulation’s
promulgation, plaintiffs failed to exhaust their administrative remedies, and mandate
relief was not available to command the Board to exercise its discretion to issue
exemptions from the diesel particular filter requirement. The trial court concluded by
denying plaintiffs’ request to file a second amended complaint.
The trial court entered a judgment of dismissal on January 8, 2019. A week later,
plaintiffs filed a notice of appeal.
DISCUSSION
I

Jurisdiction
Alliance contends the trial court erred in dismissing its action against the Board
and non-Board defendants for lack of subject matter jurisdiction. In Alliance’s view, the
gravamen of this case concerns the implementation of the Regulation rather than the
validity of the Regulation as challenged in Alliance. We are not persuaded.

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 A.

Issues Presented in Alliance
Alliance involved consolidated cases brought in the Sacramento and Glenn County
Superior Courts. (Alliance, supra, 23 Cal.App.5th at p. 1050.) In the Glenn County case,
Alliance sued the Board, its chair, executive officer, and board members on grounds that
the Regulation required the use of unsafe diesel particulate filters. (Alliance, at p. 1057.)
The Glenn County Superior Court granted the Board’s motion for judgment on the
pleadings, and Alliance appealed. (Id. at pp. 1057-1058.) On appeal, “Alliance alleged
the controversy concerns the ‘legality [of the Regulation], as designed, approved, and
implemented by defendants,’ and that its members would suffer irreparable harm if the
Regulation is implemented and enforced because they would be ‘forced to install an
unproven, defective and dangerous technology, to wit the [filter] device’ or suffer fines,
penalties, and lost revenue due to the inability to operate their trucks in California. In its
request for relief, Alliance sought a declaration that the continued enforcement of the
Regulation and verification procedure, in whole or in part, with respect to the filter
requirement would place Alliance members ‘in the position of violating California public
health and safety laws.’ It further sought an injunction prohibiting enforcement of the
Regulation and the verification procedure ‘in their entirety, or at least as to the current
[filter] device requirements.’ ” (Id. at p. 1057, italics added.) The Glenn County
Superior Court dismissed Alliance’s case. (Id. at p. 1058.)
The Sacramento County plaintiffs in Alliance included an out-of-state professional
truck driver, Jack Cody, who received a citation for operating a truck without a diesel
particulate filter. (Alliance, supra, 23 Cal.App.5th at p. 1058.) Cody initially challenged
the Regulation in federal court. (Alliance, at p. 1058.) Although the Ninth Circuit
dismissed his challenge, Cody also sought declaratory relief in Sacramento County
Superior Court on grounds that the Regulation violated the dormant commerce clause.

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(Alliance, at pp. 1059-1060.) The Sacramento County Superior Court dismissed Cody’s
complaint for lack of subject matter jurisdiction. (Id. at p. 1060.)
On appeal, the Board argued that both Alliance and Cody’s actions were barred by
section 307(b)(1), of the Act. (Alliance, supra, 23 Cal.App.5th at p. 1054 & fn. 4; see
also 42 U.S.C. § 7607(b)(1) [codifying § 307(b)(1), of the Act].) In considering the
jurisdictional challenge, this Court explained:
“Section 307(b)(1) provides, in pertinent part: ‘A petition for review of the
Administrator’s action in approving or promulgating any implementation plan . . . or any
other final action of the Administrator under this [Act] . . . which is locally or regionally
applicable may be filed only in the United States Court of Appeals for the appropriate
circuit.’ (42 U.S.C. § 7607(b)(1).) The petition ‘shall be filed within sixty days from the
date notice of such promulgation, approval, or action appears in the Federal Register,
except that if such petition is based solely on grounds arising after such sixtieth day, then
any petition for review under this subsection shall be filed within sixty days after such
grounds arise.’ (Ibid.)
“Section 307(b)(2) of the Act states, in part, that an ‘[a]ction of the Administrator
with respect to which review could have been obtained under paragraph (1) shall not be
subject to judicial review in civil or criminal proceedings for enforcement.’ (42 U.S.C.
§ 7607(b)(2).) Further, section 307(e) of the Act provides ‘[n]othing in this [Act] shall be
construed to authorize judicial review of regulations or orders of the Administrator under
this [Act], except as provided in this section.’ (42 U.S.C. § 7607(e).)” (Alliance, supra,
23 Cal.App.5th at pp. 1056-1057.)
Alliance holds that section 307(b)(1) “provides that the Administrator’s approval
of a [state implementation plan] submission ‘may be filed only in the United States Court
of Appeals for the [appropriate circuit].’ (42 U.S.C. § 7607(b)(1), italics added.) ‘Only’
means ‘solely’ or ‘exclusively.’ (Merriam-Webster’s Collegiate Dict. (11th ed. 2006)
p. 867; cf. Mims v. Arrow Financial Servs., LLC (2012) 565 U.S. 368, 380 [181 L.Ed.2d

9
881, 895 [state jurisdiction not exclusive because statute did not provide action could be
brought ‘ “only” in state court, or “exclusively” in state court.’].) Further, section 307(e)
explicitly precludes judicial review except as provided in the Act. (42 U.S.C. § 7607(e).)
Thus, by the plain language of the statute, federal courts of appeals have original and
exclusive jurisdiction over challenges to the Agency’s actions enumerated in the statute.”
(Alliance, supra, 23 Cal.App.5th at pp. 1061-1062.)
In assessing whether Cody and Alliance presented claims subject to the
jurisdictional bar of section 307, Alliance notes that “[o]ur analysis turns on the effect of
[the plaintiffs’] requested relief and not on how Cody and Alliance chose to frame their
challenges to the Regulation. Otherwise creative lawyering could override congressional
intent, a result not permitted by law.” (Alliance, supra, 23 Cal.App.5th at p. 1063.) On
this point, section 307 reflects “Congress’s clear concern with channeling and
streamlining challenges to approved [state implementation plan] submissions in one
jurisdiction, establishes a ‘ “fairly discernable” ’ intent to preclude state court review in
these cases.” (Alliance, at p. 1062, quoting Thunder Basin Coal Co. v. Reich (1994) 510
U.S. 200, 216 [127 L.Ed.2d 29, 43].)
Based on section 307 and the legislative intent underlying that section, this court
affirmed the dismissal of Cody and Alliance’s actions for lack of subject matter
jurisdiction. In affirming, this Court rejected Alliance’s argument that it was “not
seeking to ‘completely’ invalidate the Regulation, but merely challeng[e] ‘how the
regulation is implemented by [the Board] and to the narrow issue of why the verified
[diesel particulate filter] devices, at this time, have proven to be unsafe, and therefore
conflict with other public safety laws . . . .’ ” (Alliance, supra, 23 Cal.App.5th at p. 1066,
italics added.) Because Alliance sought a declaration “that the Regulation is invalid and
unenforceable in whole or in part,” the gravamen of the complaint presented a claim that
could only by brought under the original jurisdiction of the Ninth Circuit. (Ibid.)

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 B.

Alliance’s Requests for Relief in This Case
As in Alliance, we examine the gravamen of Alliance’s requested relief, rather
than how Alliance chooses to frame their challenges to the Regulation, in order to
determine whether California courts have subject matter jurisdiction. (Alliance, supra, 23
Cal.App.5th at p. 1063.) An examination of the request for relief in the first amended
complaint compels the conclusion that Alliance seeks to invalidate the Regulation. In the
first amended complaint, Alliance asserts five causes of action premised on assertions
that the Regulation violates various federal constitutional provisions as well as various
safety-related laws. Based on the assertion of unconstitutionality and violation of federal
and state safety laws, Alliance seeks declaratory relief to invalidate the Regulation.
Alliance’s attempt to invalidate the Regulation presents a legal challenge over which only
the Ninth Circuit has subject matter jurisdiction. (Alliance, supra, 23 Cal.App.5th at
pp. 1062, 1066.)
We reject Alliance’s argument that it seeks merely to challenge how the
Regulation is implemented. Regardless of how its causes of action might be
characterized, Alliance plainly seeks to have the Regulation invalidated. On this point,
the Ninth Circuit has explained that “jurisdiction under § 307(b)(1) is not established
solely by the allegations on the face of a complaint; instead, § 307(b)(1) ‘channels review
of final EPA action exclusively to the courts of appeals, regardless of how the grounds
for review are framed.’ Virginia v. United States, 74 F.3d 517, 523 (4th Cir.1996)
(emphasis added). Thus, § 307(b)(1) has been applied to claims that effectively, if not
facially, challenged an EPA final action.” (Cal. Dump Truck Owners Ass’n. v. Nichols,
supra, 784 F.3d at p. 506.) To the extent that Alliance seeks to challenge the
implementation, it seeks to bar enforcement of the Regulation. This relief may be sought
only in the Ninth Circuit. (Dump Truck, at p. 506.)

11
 This court has already rejected an identical argument by the same party. In both
Alliance and this case, Alliance has argued that the Regulation conflicts with state and
federal safety laws. (Alliance, supra, 23 Cal.App.5th at p. 1054.) As this court recounted
in Alliance, plaintiff argues that it was “not seeking to ‘completely’ invalidate the
Regulation, but merely challenging ‘how the regulation is implemented by [the Board]
and to the narrow issue of why the verified [diesel particulate filter] devices, at this time,
have proven to be unsafe, and therefore conflict with other public safety laws . . . .’ ” (Id.
at p. 1066.) In essence the claim in Alliance effectively challenged the “ ‘legality [of the
Regulation], as designed, approved, and implemented by defendants.’ ” (Id. at p. 1057,
italics added.)
In this case, Alliance again protests it is challenging the defendants’
“implementation of the Regulation in a manner that requires the installation of [diesel
particulate filter] devices, not the actual Regulation itself.” As we explained in Alliance,
a challenge to the diesel particulate filter requirement is inseparable from a challenge to
the Regulation itself: “[T]he Regulation’s enforceability and the Board’s legal authority
to implement the Regulation are express factors applicable to the [state implementation
plan] approval process, and thus claims are subject to section 307(b)(1) and section
307(b)(2).” (Alliance, supra, 23 Cal.App.5th at p. 1067, fn. omitted.) As the trial court
found, “it is undisputed the [diesel particulate filter] is the only way to comply with the
Truck and Bus Regulation, . . . this action effectively challenges the Regulation itself.”4

4 In its briefing, Alliance contends that the inseparability of the diesel particulate
filter from the Regulation is not undisputed. The record belies this contention.
Alliance’s first amended complaint expressly alleges that the diesel particulate filter
requirement is the only way that the Board has allowed compliance with the Regulation.
Tellingly, Alliance’s proposed second amended complaint reiterates the assertion that the
diesel particulate filter is the only manner in which the Board has allowed truck and
heavy machinery owners and operators to comply with the Regulation.

12
We conclude Alliance’s challenge to enforcement of the Regulation lacks merit for the
same reason as articulated in Alliance.
We reject Alliance’s reliance on In re Volkswagen “Clean Diesel” Mktg. (N.D.
Cal. 2017) 264 F.Supp.3d 1040 and Utah Power & Light Co. v. Environmental
Protection Agency (D.C. Cir. 1977) 553 F.2d 215 (Utah). Both Volkswagen and Utah
involved challenges to the application of state implementation plans to specific instances
of implementation rather than attempts to invalidate the state implementation plans
themselves. Specifically, Volkswagen turned on the question of whether the several
states could bring actions in state court against a car manufacturer for wrongfully
masking the true extent of vehicle nitrogen oxide emissions. (Volkswagen, at p. 1042.)
The United States District Court in Volkswagen concluded that the actions were
cognizable even though not brought in the federal court of appeals because it was
undisputed that the state implementation plans were valid. (Id. at p. 1047.) The
controversy was whether the state implementation plans applied to the masking
technology employed by the vehicle manufacturer. (Ibid.) The Volkswagen court
explained that “[a] challenge to ‘a particular interpretation or application’ of a [state
implementation plan], which if accepted would not invalidate the [state implementation
plan], is not governed by Section 307(b)(1) and instead is properly considered by the
district court.” (Ibid.) In contrast to Volkswagen where the validity of state
implementation plan was not at issue, Alliance seeks to invalidate the Regulation in this
case as unconstitutional and in conflict with other federal and state laws.
Utah likewise involved an action that did not attack the validity of a state
implementation plan. (Utah, supra, 553 F.2d at p. 216.) In Utah, a utility company filed
an action in the first instance in the court of appeals to seek review of an agency decision
that three electricity generating plants under construction would result in significant
deterioration of air quality in violation of the Act. (Utah, at p. 216.) The Agency moved
to dismiss for lack of jurisdiction in the court of appeals because the utility company was

13
not challenging the approval or promulgation of the state implementation plan. (Ibid.)
The Utah court noted that the issue of jurisdiction turned on “whether the petitioner is
attacking the validity of an agency regulation or, instead, is attacking a particular
interpretation or application of that regulation.” (Id. at p. 218, fn. omitted.) The court of
appeals dismissed the action on grounds that the utility company was merely seeking to
show that the regulations did not apply to three specific power plants. (Id. at pp. 217-
218.) In contrast to Utah, this case does involve an attack on the validity of a regulation
and jurisdiction is therefore limited to that of the Ninth Circuit.5
C.

Amendment
Alliance asserts that it can amend its complaint to state a cause of action that lies
within the subject matter jurisdiction of California courts. When a trial court properly
sustains a demurrer without leave to amend, “the burden falls upon the plaintiff to show
what facts he or she could plead to cure the existing defects in the complaint. (Cantu v.
Resolution Trust Corp. [(1992)] 4 Cal.App.4th [857,] 890.) ‘To meet this burden, a
plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts
and demonstrate how those facts establish a cause of action.’ (Ibid.)” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.)
Here, the record shows that Alliance sought leave to file a second amended
complaint. Review of this proposed complaint shows that it reiterates the same requests
in Alliance’s earlier complaints for declarations that the diesel particulate filter
requirement is unconstitutional and conflicts with various safety laws. Equally
importantly, Alliance seeks the same declaratory relief that would effectively invalidate

5 In light of our conclusion, we deny Alliance’s requests for judicial notice (filed on
May 4, 2020, & Aug. 3, 2020) as unnecessary to our decision. (See, e.g.,
TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th 140, 146, fn. 3.)

14
the Regulation by eliminating the only manner in which diesel machinery can comply
with the Regulation. For this reason, Alliance’s proposed second amended complaint
does not cure the lack of jurisdiction over this action.
In its briefing, Alliance does not clearly state whether it would deviate from the
proposed second amended complaint contained in the record. Instead, Alliance asserts
that in relation to its causes of action it would “remove several defendants from the case,”
“clarify [its] claims,” “underscore the consistency of [its] claims with the . . . decision in
Alliance,” and it would add unspecified “additional allegations and evidence.” We are
not persuaded by these assertions. Removing defendants from this case does not change
the tenor of Alliance’s attack on the validity of the Regulation. The rest of Alliance’s
assertions about harmonizing with the holding of Alliance and adding unspecified
additional allegations are too vague to meet its burden to demonstrate how it would
amend to state causes of action for which California courts would have subject matter
jurisdiction. Accordingly, we affirm the trial court’s dismissal of Alliance’s causes of
action without leave to amend.
II

Individual Plaintiffs’ Cause of Action Relating to the Safety Exemption
The individual plaintiffs argue that they are entitled to declaratory and injunctive
relief commanding the Board to grant them safety exemptions from the diesel particulate
filter requirements for their vehicles. We conclude that the individual plaintiffs’ cause of
action for declaratory relief is barred by the statute of limitations imposed by the
Regulation.
A.

Requests for Safety Exemptions
The first amended complaint alleges in its sixth cause of action that the individual
plaintiffs applied to the Board for safety exemptions from the requirement to retrofit their

15
vehicles with diesel particulate filters. The Board uniformly denied the requests for the
safety exemption. In response to the denials, the individual plaintiffs allege they
exhausted their administrative remedies without securing their requested relief.
The trial court dismissed the individual plaintiffs’ cause of action. In doing so, the
trial court recognized that the Board “agrees this cause of action is not barred [for lack of
subject matter jurisdiction] by Dump Truck, nor disposed of by the Alliance decision.”
The dismissal was based on the individual plaintiffs’ failure to comply with the
Regulation’s 30-day deadline to bring an appeal and their failure to exhaust their
administrative remedies. The trial court also articulated a third ground for the dismissal:
the unavailability of mandate relief to compel the Board to exercise its discretion in a
particular manner. On this point, the trial court noted that the individual plaintiffs argued
that the Board “ ‘has a mandatory duty to grant meritorious safety applications because
the alternative is unlawful and unconstitutional.’ ”
B.

Timeliness of the Sixth Cause of Action
The Regulation imposes a 30-day deadline within which to appeal the denial of a
safety exemption. (Cal. Code Regs., tit. 13, § 2025, subd. (q)(5)(C)(2).) Subdivision
(q)(5)(C) of title 13, section 2025, provides in pertinent part that “1. Any party whose
request has been denied may request a hearing for the Executive Officer to reconsider the
action taken by sending a request in writing to the Executive Officer. . . . [¶] . . . [¶] 2.
A request for a hearing shall be filed within 30 days from the date of issuance of the
notice of the denial.” Consequently, the individual plaintiffs were required to file their
appeals within 30 days after the denials of their safety exemption requests. The
individual plaintiffs, however, did not comply with the Regulation’s deadline.
The complaint shows that individual plaintiff Caldwell filed his appeal more than
30 days after the denial of his request for a safety exemption. The complaint does not

16
assert that individual plaintiff McGowan filed an appeal. The complaint does not show
that individual plaintiff Paiva complied with the 30-day deadline. In short, the complaint
does not show that any of the individual plaintiffs complied with the deadline imposed by
subdivision (q)(5)(C) of the Regulation.
We are not persuaded by the individual plaintiffs’ attempt to show that they relied
on a “separate procedure that CARB established and employed in parallel with section
2025[, subdivision ](q)(5).” First, the complaint alleges that the individual plaintiffs’
request for a safety exemption was made under the Regulation. Second, appellants’
reliance on a “separate procedure” from the Regulation is not supported by any statutory
or regulatory authority that excuses compliance with the express 30-day deadline set forth
by subdivision (q)(5)(C)(2) of the Regulation. The trial court properly granted the
demurrer as to the individual plaintiffs’ sixth cause of action because they did not timely
file an appeal with 30 days as required by the Regulation.
We note that the nature of the relief sought by the individual plaintiffs in their
proposed second amended complaint is identical to their prayer in the first amended
complaint. In their briefing, the individual plaintiffs do not indicate that they would
amend their prayer for relief to recast it as something other than a challenge that
effectively seeks to negate the Regulation. Accordingly, the individual plaintiffs have not
met their burden to show that they would or could amend their complaint to state a viable
cause of action.
III

Jurisdiction Relating to the Non-Board Defendants
Our conclusion that the causes of action brought by Alliance are cognizable only
in the Ninth Circuit obviates the need to consider the arguments of the non-Board
defendants that they should not have been included in this action. For lack of subject
matter jurisdiction in California courts, the trial court’s sustaining of the non-Board

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defendants’ demurrer without leave to amend achieved the correct result. Accordingly,
we affirm as to the non-Board defendants as well.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)

/s/
HOCH, J.

We concur:

/s/
BLEASE, Acting P. J.

/s/
MAURO, J.

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