Govrin v. City of Santa Monica CA2/3 ( 2023 )

Filed 7/14/23 Govrin v. City of Santa Monica CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
YOSSI GOVRIN et al., B316310
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 20STCV43902)
v.
CITY OF SANTA MONICA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David Sotelo, Judge. Affirmed.
Ahrony Appeals Law Group and Orly Ahrony for Plaintiffs
and Appellants.
Douglas Sloan, City Attorney and Catherine M. Kelly,
Deputy City Attorney; Berry Silberberg Stokes and Carol M.
Silberberg for Defendants and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiffs Yossi Govrin, Santa Monica Arts Studio (SMAS),
and Maxima (hereafter collectively plaintiffs) appeal from a
judgment entered in favor of defendants City of Santa Monica
(City), Kevin McKeown, and Shannon Daut (hereafter collectively
defendants). The trial court entered judgment in favor of
defendants and dismissed the action after it sustained their
demurrer to plaintiffs’ first amended complaint without leave to
amend and granted defendants’ special motion to strike plaintiffs’
cause of action for defamation pursuant to the anti-SLAPP
statute,1 Code of Civil Procedure section 425.16.
We conclude that the trial court properly sustained the
demurrer because plaintiffs failed to allege that they presented a
timely claim as required by the Government Claims Act (Gov.
Code, § 810 et seq.2) or sufficient grounds for excusing that
requirement. Additionally, we conclude that plaintiffs have
failed to demonstrate how these defects can be cured by a further
amendment.
We further conclude that the trial court properly granted
defendants’ anti-SLAPP motion to strike plaintiffs’ defamation
cause of action. Defendants showed that the defamation cause of
action arose from statements made in connection with a public
issue, and plaintiffs failed to establish the cause of action has
minimal merit.
1 “SLAPP” is an acronym for “so-called strategic lawsuits
against public participation.” (FilmOn.com Inc. v. DoubleVerify
Inc. (2019) 7 Cal.5th 133, 139.)
2 All subsequent undesignated statutory references are to
the Government Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. SMAS’s operation of the airport art studios
For purposes of plaintiffs’ appeal from the portion of the
judgment sustaining defendants’ demurrer, we assume the truth
of the following allegations from plaintiffs’ first amended
complaint. (See Phillips v. Desert Hospital District (1989) 49
Cal.3d 699, 702 (Phillips).)
In 2001, the City issued a request for proposals (RFP) to
create a business in a vacant hangar at the Santa Monica Airport
(airport). SMAS, an organization Govrin created to assist artists
exhibit and sell their work, submitted a proposal to create art
studios in the airport hangar. The City initially selected SMAS’s
proposal. But defendant McKeown, a then-City Council member
who was affiliated with 18th Street Art Center, another bidder,
recommended to the City Council that it cancel the RFP because
only three organizations submitted proposals. The City Council
then cancelled the RFP.
The City issued a second RFP for the airport hangar in
2002. Although McKeown attempted to have the contract
awarded to 18th Street Art Center, the City awarded the contract
to SMAS. Govrin thereafter leased the 22,500-square-foot
hangar from the City. In turn, Govrin subleased space in the
hangar to local artists.
SMAS did not receive City funds or subsidies to operate the
hangar. Govrin used $1.7 million of his own money to renovate
the hangar and create 29 individual art studios and three
galleries. Govrin never sought reimbursement from the City for
those expenses.
SMAS brought visitors from other cities and countries to
exhibitions and programs at the airport art studios. Govrin also
3
assisted artists with career planning, exhibition preparation, and
various special events. Additionally, Govrin hosted over 600
fundraisers and events for the local community.
II. SMAS loses bid to continue operating the airport art
studios
In 2017, the City signed an agreement with the Federal
Aviation Administration requiring the City to eliminate airport
subleases and to charge non-aviation airport tenants rent at
market rates. In August 2017, the City notified Govrin that the
airport hangar lease would be on a month-to-month basis
pending new lease negotiations.
The City further informed Govrin that it would be taking
over all leases at the hangar and that the City would issue a RFP
for a new manager of the airport art studios. Prior to issuance of
the RFP, the City requested that Govrin provide it with
information about SMAS’s programs and operations. Although
Govrin objected that the City was attempting to collect his trade
secrets and take over his business, City representatives assured
him otherwise. A consultant hired by the City thereafter
interviewed Govrin and artists at the airport art studios about
SMAS’s operations and programs.
Once the City issued the RFP, Govrin, under the name
Maxima Art Initiative (Maxima), and several other organizations
submitted proposals to manage the airport art studios. According
to the complaint, however, then-Mayor and City Council member
McKeown, with the aid of defendant Daut, the City’s Cultural
Affairs Director, manipulated the RFP process to favor
McKeown’s chosen contractor, 18th Street Art Center.
For example, Daut set up a meeting with five panelists to
evaluate bid proposals. All five panelists had personal and
4
professional relationships with 18th Street Art Center. During
the meeting with panelists on October 26, 2018, Daut told the
panelists that SMAS “had no money,” that 18th Street Art Center
was a “ ‘powerful organization,’ ” and that Govrin “ ‘wanted a
large salary.’ ” The panelists scored Govrin’s proposal below
average.
On November 13, 2018, Govrin sent a letter to the City
Council and City Attorney protesting the existence of a conflict of
interest in the bid process.3 According to the first amended
complaint, Govrin’s letter “accused the City of abuse of power by
two City officials and the city’s staging of the selection process to
ensure that it could take over management of the space with a
bidder personally selected by Mr. McKeown,” i.e., 18th Street Art
Center. The City responded and denied the existence of a conflict
of interest. Govrin’s letter was not attached as an exhibit to the
first amended complaint.
The Santa Monica Arts Commission (Commission), a panel
appointed by the City Council to provide direction regarding
cultural affairs, held a meeting on November 19, 2018, to
interview finalists for the airport art studios contract. The
Commission voted in favor of a motion to award the contract to
Maxima.
The next day, the City informed the Commission that it
was rejecting the Commission’s motion to award the contract to
Maxima. One of the commissioners later informed Govrin that
3 Although the first amended complaint alleges the letter
was sent to the City Council and City Attorney, the letter,
included as an exhibit with plaintiffs’ motion to augment the
record, is addressed to the City’s Director of Finance.
5
“there was a deliberate attempt by Shannon Daut and the City of
Santa Monica to ‘cause [Govrin’s] initiative to fail.’ ”
On December 18, 2018, the City Council held a meeting and
voted six to one to award the airport art studios contract to 18th
Street Art Center. Daut included 18th Street Art Center’s
proposal on the City Council’s approval agenda, but not Maxima’s
proposal.
The RFP for the airport art studios contract included the
following statement: “ ‘By submitting a response to this RFP,
prospective consultants waive the right to protest after award or
seek any legal remedies whatsoever regarding any aspect of this
RFP.’ ” Citing this provision, the first amended complaint alleged
that “[t]he RFP documents prohibited Mr. Govrin from filing a
protest of the award made to 18th Street [Art Center],” and that
by “simply participating in the RFP process, [Govrin] was
required to relinquish his right to protest the contract award and
abandon any right of action in court.” The first amended
complaint further alleged that “Govrin rightfully concluded that
he would not have an opportunity to challenge the city’s decision
in court or by filing an administrative claim with the city,” and
that “Govrin therefore did not file a claim with the city within the
statutory 6 months’ time . . . .”
Even so, according to the first amended complaint Govrin
later “filed a claim after he retained counsel and as soon as he
was disabused of the belief that he could not file a claim or
challenge the city’s decision. The City summarily denied his
claim.” According to a request for judicial notice filed in the trial
court by the City, Govrin’s counsel submitted a claim to the City
on May 31, 2020. The claim is not in the record and it is thus
unclear if it was presented on behalf of all plaintiffs or just
6
Govrin. On July 7, 2020, the City denied the claim because it
was not submitted to the City within six months of the accrual of
the causes of action described in the claim.
III. Trial court proceedings
A. The complaint and first amended complaint
Plaintiffs filed a verified complaint against the City and
McKeown on November 17, 2020. They filed a verified first
amended complaint on April 21, 2021, and added Daut as a
defendant.
The first amended complaint alleged causes of action for
theft of trade secrets and breach of contract implied in fact,
negligence, defamation, intentional interference with prospective
economic advantage, conversion, fraud and deceit, and violation
of the Public Records Act, Government Code section 7921.000 et
seq., and sought damages, restitution, attorney fees, and costs.
All causes of action were brought on behalf of all plaintiffs
against all defendants. Plaintiffs later dismissed their causes of
action for conversion and violation of the Public Records Act.
Plaintiffs’ cause of action for theft of trade secrets alleged
that during the RFP process, the City collected information about
SMAS’s operations and programs and then turned the
information over to 18th Street Art Center. As a result of the
City’s appropriation of plaintiffs’ trade secrets, 18th Street Art
Center was now working with the same artists Govrin had
selected, running the same programs Govrin had developed, and
working in the same building Govrin had designed and built.
The cause of action for negligence alleged that defendants
breached their duty of care by engaging in “illegal RFP
procedures, including (1) allowing the winning bidder to appoint
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the selection panelists; (2) disregarding the role of the city arts
commission; and (3) removing the city council’s consideration of
the finalist bidders.”
The cause of action for defamation alleged that Daut
engaged in defamation by making the following statements to
Commission members, selection panelists, and persons in the
City arts community and the press: “(1) Mr. Govrin’s
organization is weak and does not have funding while 18th Street
[Art Center] is strong financially, has strong management, and
provides outstanding programs; (2) Informing Mr. Govrin in front
of the selection panelists: ‘no more money will be given to you,’
suggesting that the city had given him money (which it did not),
and placing Mr. Govrin in a bad light in front of the RFP
decision-makers. Ms. Daut and Mr. McKeown repeated this
information to the press and in emails and private meetings with
private individuals in the arts community.” According to the
complaint, Daut made the alleged statements “to prevent
Maxima from winning the RFP and Govrin continuing in his role
as manager.” Last, the first amended complaint alleged that
McKeown “falsely claimed to the press that city officials
subsidized SMAS’ rent by $4 to $6 Million. He also asked the city
to audit SMAS. Fortunately, the audit completely cleared Mr.
Govrin and SMAS.” The first amended complaint does not
identify the date of either Daut’s or McKeown’s alleged
statements.
Plaintiffs’ cause of action for intentional interference with
prospective economic advantage alleged that the “RFP process
the city adopted was a complete sham, conceived to enable the
city to place a ‘friend’ of the current Mayor as manager of the
airport facility.” Defendants engaged in wrongful conduct in
8
pursuit of their aim, including allowing persons with conflicts of
interest to serve on the selection panel; defaming Govrin and
SMAS; displacing the Commission from its “usual role” of making
recommendations to the City Council; and appropriating Govrin’s
trade secrets.
Finally, plaintiffs’ fraud cause of action alleged that
defendants made misrepresentations to Govrin and others
regarding SMAS’s ability to continue managing the airport art
studios, the RFP process, and SMAS’s fitness to manage the
airport art studios. Defendants also allegedly concealed facts
from plaintiffs, such as 18th Street Art Center’s personal and
professional relationships with selection panelists, McKeown,
and Daut; the City’s intention to award the airport art studios
contract to 18th Street Art Center; and the City’s intention to
turn over plaintiffs’ trade secrets to the winning bidder.
B. Motion to strike and demurrer
Defendants filed a special motion to strike the defamation
cause of action pursuant to the anti-SLAPP statute and a
demurrer to the first amended complaint.
Defendants’ special motion to strike contended that
McKeown’s and Daut’s alleged defamatory statements regarding
the City’s award of the airport art studios contract and the
financial condition of SMAS concerned public issues. Their
motion emphasized that operation of the airport and preserving
the airport’s artist community were matters regularly debated by
the City Council, the City community, and the local press.
Defendants further argued that plaintiffs could not prevail on
their defamation cause of action because, among other things, it
was barred by the applicable one-year statute of limitations.
9
Defendants’ demurrer raised several arguments, including
that plaintiffs failed to present a timely claim as required by the
Government Claims Act. Defendants also argued that the RFP
language cited by plaintiffs did not estop defendants from
arguing that plaintiffs failed to present a timely claim.
Plaintiffs opposed both the anti-SLAPP motion and the
demurrer. In opposition to the anti-SLAPP motion, plaintiffs
argued that while defendants’ statements “related to an issue of a
public interest nature (a city contract),” the statements “veered
far beyond being an issue of interest to the public into purely
defamatory language against plaintiffs.” Concerning the merits
of their cause of action, plaintiffs did not directly address
defendants’ statute of limitations argument. They argued, among
other things, that they were excused from the claim filing
requirements of the Government Claims Act and that defendants
were estopped from raising the issue. That was so, according to
plaintiffs, because the RFP misled Govrin into believing he had
no right to pursue legal action against the City regarding the
award of the airport art studios contract.
Plaintiffs raised several arguments in opposition to the
demurrer, including that the City was equitably estopped from
raising the timeliness of a claim under the Government Claims
Act due to the purportedly misleading RFP provision.
C. Trial court order
The trial court granted defendants’ anti-SLAPP motion and
sustained their demurrer without leave to amend.
Regarding the anti-SLAPP motion, the court concluded that
the alleged defamatory statements concerned the award of a city
contract, which was an issue of public interest. It further
concluded that plaintiffs could not demonstrate a probability of
10
prevailing on the cause of action because they failed to file their
complaint within the applicable one-year statute of limitations.
The court sustained defendants’ demurrer on the ground
that plaintiffs failed to present a claim within six months of the
accrual of their causes of action, as required by the Government
Claims Act. The court found that the latest plaintiffs’ causes of
action accrued was December 18, 2018, when the City awarded
the airport art studios contract, and that plaintiffs therefore had
until June 2019 to present their claim. The May 31, 2020 claim
was therefore untimely.
The court also rejected plaintiffs’ argument that their
failure to present a timely claim was excused by the RFP. The
court concluded that the disputed RFP provision constituted a
waiver only to challenges to “the form/document itself,” but not
the City’s final award of the contract. The court also rejected
plaintiffs’ equitable estoppel argument. It noted that no City
official told Govrin he could not pursue legal action, and that it
was only his interpretation of the RFP that led him to that
conclusion. The court also emphasized that it was unreasonable
for Govrin not to consult counsel or request clarification from the
City itself regarding the scope of the waiver.
The court thereafter dismissed the action in its entirety
and entered judgment in favor of defendants. Plaintiffs timely
appealed.4
4 The notice of appeal identifies only Govrin as an appellant;
it does not identify either SMAS or Maxima. Defendants have
not raised any issue regarding the omission of SMAS or Maxima
from the notice of appeal. Because defendants do not appear to
have been misled or prejudiced by the omission, we construe the
notice of appeal as including SMAS and Maxima and treat both
11
DISCUSSION
Plaintiffs raise two challenges to the trial court’s order
sustaining defendants’ demurrer. They first contend the trial
court erred by failing to treat Govrin’s November 13, 2018 bid
protest as a “claim as presented” pursuant to the Government
Claims Act. They next argue that even if they failed to present a
timely claim under the Government Claims Act, that failure
should be excused based on the doctrines of equitable estoppel
and equitable tolling.
Plaintiffs also raise two challenges to the trial court’s order
granting defendants’ anti-SLAPP motion. They contend the trial
court erred in finding that defendants’ statements were in
furtherance of the right to free speech in connection with a public
issue or issue of public interest. They further argue the trial
court erred by finding the defamation cause of action was time-
barred.
parties as appellants along with Govrin. (See K.J. v. Los Angeles
Unified School Dist. (2020) 8 Cal.5th 875, 885 [reviewing court
should treat notice of appeal as including omitted party where it
is “reasonably clear that the [omitted party] intended to join in
the appeal, and the respondent was not misled or prejudiced by
the omission.”].)
Additionally, the notice of appeal states the appeal is from
an August 25, 2021 judgment of dismissal after the court
sustained a demurrer. But the trial court did not enter that
judgment until September 17, 2021. We thus construe the notice
of appeal as an appeal from the September 17, 2021 judgment.
We also construe the notice of appeal as challenging the court’s
anti-SLAPP ruling.
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I. Demurrer appeal
A. Standard of review
“A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the
sustaining of a demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. [Citation.] We assume the truth of
the properly pleaded factual allegations, facts that reasonably
can be inferred from those expressly pleaded and matters of
which judicial notice has been taken. [Citation.] We construe the
pleading in a reasonable manner and read the allegations in
context. [Citation.] We must affirm the judgment if the
sustaining of a general demurrer was proper on any of the
grounds stated in the demurrer, regardless of the trial court’s
stated reasons. [Citation.]
“It is an abuse of discretion to sustain a demurrer without
leave to amend if there is a reasonable probability that the defect
can be cured by amendment. [Citation.] The burden is on the
plaintiff to demonstrate how the complaint can be amended to
state a valid cause of action. [Citation.] The plaintiff can make
that showing for the first time on appeal. [Citation.]” (Chapman
v. Skype, Inc. (2013) 220 Cal.App.4th 217, 225–226.)
B. Motions to augment the record
Before addressing plaintiffs’ contentions regarding the trial
court’s order sustaining the demurrer, we address plaintiffs’ two
motions to augment the record.
Plaintiffs’ first motion to augment primarily seeks to
augment the record to include Govrin’s November 13, 2018 bid
protest and other correspondence, including letters from Govrin
13
to the City Mayor, City Attorney, and a U.S. Congressperson.
Plaintiffs contend Govrin’s bid protest is relevant to whether they
presented a timely claim under the Government Claims Act.
They argue the remaining correspondence is relevant to their
equitable tolling argument.
Defendants oppose the motion on various grounds,
including that none of the documents at issue was filed or lodged
in the trial court, that the motion is untimely, and that the
documents at issue are irrelevant. (See Cal. Rules of Court, rule
8.155(a)(1)(A) [authorizing reviewing court to order record
augmented to include “[a]ny document filed or lodged in the case
in superior court”]; Local Rules of the Court of Appeal Second
App. Dist., Rule 2(b) [“Appellant should file requests for
augmentation in one motion within 40 days of the filing of the
record”].)
Plaintiffs’ second motion to augment primarily seeks to
augment the record to include additional correspondence between
Govrin and others, which plaintiffs contend is relevant to their
equitable tolling argument.
Defendants oppose the second motion to augment on the
same grounds as before, i.e., that none of the documents at issue
was filed or lodged in the trial court, that the motion is untimely,
and that the documents at issue are irrelevant.
As a general matter, we agree with defendants.
“Augmentation does not function to supplement the record with
materials not before the trial court.” (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; see People v.
Brawley (1969) 1 Cal.3d 277, 294–295 [denying motion to
augment record where documents “were not before the trial
court”]; Cal. Rules of Court, rule 8.155(a)(1)(A)). Plaintiffs fail to
14
show that any of the documents they seek to include in the record
was filed or lodged in the trial court.
Nonetheless, our analysis is tempered by a competing
consideration. As described above, plaintiffs are entitled to
demonstrate for the first time on appeal how they can amend
their complaint to state a valid cause of action. (Chapman v.
Skype, Inc., supra, 220 Cal.App.4th at p. 226.) Plaintiffs contend
Govrin’s bid protest, included with their first motion to augment
the record, is relevant to whether they complied with the
Government Claims Act. They further contend that most of the
remaining documents support their equitable tolling argument
because the documents purportedly show Govrin actively pursued
the claims at issue by “reach[ing] out to city officials and
rally[ing] community support” to preserve the claims.
Construing plaintiffs’ motions to augment the record and
the accompanying exhibits as part of their effort on appeal to
show they can amend the first amended complaint to allege
compliance with the Government Claims Act, or, in the
alternative, that equitable tolling applies here, we thus grant the
motions to augment for those limited purposes.
C. Government Claims Act
1. General requirements
The Government Claims Act (§ 810 et seq.) “prescribes the
manner in which public entities may be sued.” (Chalmers v.
County of Los Angeles (1985) 175 Cal.App.3d 461, 464.)
Section 945.4 provides, in relevant part, that “no suit for
money or damages may be brought against a public entity on a
cause of action for which a claim is required to be presented . . .
until a written claim therefor has been presented to the public
15
entity and has been acted upon by the board, or has been deemed
to have been rejected by the board . . . .” Such a written claim
must include specific information, including “[t]he date, place and
other circumstances of the occurrence or transaction which gave
rise to the claim asserted,” “[a] general description of the
indebtedness, obligation, injury, damage or loss incurred so far as
it may be known at the time of presentation of the claim,” and
“[t]he name or names of the public employee or employees
causing the injury, damage, or loss, if known.” (§ 910, subds. (c)–
(e).) The claim must also be signed by the claimant or someone
on his behalf. (§ 910.2.)
“A claim relating to a cause of action . . . for injury to
person . . . shall be presented . . . not later than six months after
the accrual of the cause of action.” (§ 911.2, subd. (a).) A claim
accrues on the date it would accrue under the applicable statute
of limitations were there no claim presentation requirement.
(§ 901.) “ ‘[U]nder these statutes, failure to timely present a
claim for money or damages to a public entity bars a plaintiff
from filing a lawsuit against that entity.’ ”5 (City of Stockton v.
Superior Court (2007) 42 Cal.4th 730, 738.)
5 A claimant who fails to present a timely claim may file an
application to the public entity for leave to present the claim.
(§ 911.4, subd. (a).) Such an application must be presented
“within a reasonable time not to exceed one year after the accrual
of the cause of action and shall state the reason for the delay in
presenting the claim.” (Id., subd. (b).) If such an application is
denied, “a petition may be made to the court for an order
relieving the petitioner from Section 945.4.” (§ 946.6.) Plaintiffs
do not allege they filed a late-claim application here.
16
The claim presentation requirements of the Government
Claims Act also generally apply to claims against a public
employee based on acts or omissions in the scope of employment
as a public employee. (§ 950.2;6 see Olson v. Manhattan Beach
Unified School Dist. (2017) 17 Cal.App.5th 1052, 1055, fn. 1
(Olson) [“The defense of noncompliance with the Government
Claims Act also applies to the claims against [the individual
defendant].”]; Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 613
[Government Claims Act generally requires “one who sues a
public employee on the basis of acts or omissions in the scope of
the defendant’s employment have filed a claim against the public-
entity employer pursuant to the procedure for claims against
public entities.”].)
“The purpose of the claims statutes is not to prevent
surprise, but ‘to provide the public entity sufficient information to
6 Section 950.2 provides, in relevant part, as follows: “Except
as provided in Section 950.4, a cause of action against a public
employee or former public employee for injury resulting from an
act or omission in the scope of his employment as a public
employee is barred if an action against the employing public
entity for such injury is barred under Part 3 (commencing with
Section 900) of this division or under Chapter 2 (commencing
with Section 945) of Part 4 of this division.” Plaintiffs do not
argue their causes of action against McKeown or Daut are
exempt from the claim presentation requirements of the
Government Claims Act. Any such contention has thus been
forfeited. (See Golden Door Properties, LLC v. County of San
Diego (2020) 50 Cal.App.5th 467, 554–555 [“ ‘Even when our
review “is de novo, it is limited to issues which have been
adequately raised and supported in [appellant’s opening]
brief.” ’ ”].)
17
enable it to adequately investigate claims and to settle them, if
appropriate, without the expense of litigation. [Citations.] It is
well-settled that claims statutes must be satisfied even in face of
the public entity’s actual knowledge of the circumstances
surrounding the claim.’ [Citation.] The claims statutes
also ‘enable the public entity to engage in fiscal planning for
potential liabilities and to avoid similar liabilities in the future.’ ”
(City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 738.)
The failure to plead facts demonstrating or excusing
compliance with the claim presentation requirements of the
Government Claims Act subjects a claim against a public entity
to a demurrer for failure to state a cause of action. (State of
California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
2. Claim as presented
As noted, plaintiffs’ first amended complaint conceded that
a claim for damages was not presented to the City within six
months of the accrual of their causes of action.7 But plaintiffs
contend Govrin’s November 13, 2018 bid protest was presented to
the City within six months of the accrual of their causes of action
and constituted a “claim as presented.”8 They further argue that
7 Although the first amended complaint conceded that
“Govrin . . . did not file a claim with the city within the statutory
6 months’ time” (italics added), all parties assume the concession
applies equally to plaintiffs SMAS and Maxima. We therefore
assume the same.
8 Defendants argue that plaintiffs forfeited this argument by
failing to raise it in the trial court. Although it is generally the
rule that a failure to raise an issue in the trial court results in a
forfeiture of that issue on appeal (In re Dakota H. (2005) 132
18
because defendants failed to notify them of the deficiencies in the
“claim as presented,” defendants have waived any defense to its
sufficiency. We disagree.
“A ‘claim as presented’ is a claim that is defective in that it
fails to comply substantially with Government Code sections 910
and 910.2, but nonetheless puts the public entity on notice that
the claimant is attempting to file a valid claim and that litigation
will result if it is not paid or otherwise resolved. A ‘claim as
presented’ triggers a duty on the part of the governmental entity
to notify the claimant of the defects or omissions in the claim.”
(Alliance Financial v. City and County of San Francisco (1998) 64
Cal.App.4th 635, 643 (Alliance Financial); see § 910.8.9) “A
failure to notify the claimant of the deficiencies in a ‘claim as
Cal.App.4th 212, 221), that rule does not apply in the context of
an appeal from a trial court’s order sustaining a general
demurrer. In that circumstance, an appellate court “make[s] a de
novo determination of whether the complaint alleges ‘facts
sufficient to support a cause of action under any possible legal
theory.’ ” (Gutierrez v. Carmax Auto Superstores California
(2018) 19 Cal.App.5th 1234, 1244.) Thus, “an appellate court
‘may consider new theories on appeal from the sustaining of a
demurrer.’ ” (Id. at p. 1245.)
9 Section 910.8 provides, in relevant part, as follows: “If, in
the opinion of the board or the person designated by it, a claim as
presented fails to comply substantially with the requirements of
Sections 910 and 910.2 . . . the board or the person may, at any
time within 20 days after the claim is presented, give written
notice of its insufficiency, stating with particularity the defects or
omissions therein.”
19
presented’ waives any defense as to its sufficiency.” (Alliance
Financial, at p. 643; see § 911.10)
“[A] document constitutes a ‘claim as presented’ . . . if it
discloses the existence of a ‘claim’ which, if not satisfactorily
resolved, will result in a lawsuit against the entity. [Citation.] A
public entity’s receipt of written notice that a claim for monetary
damages exists and that litigation may ensue places upon the
public entity the responsibility, and gives it the opportunity, to
notify the potential plaintiff pursuant to sections 910.8 and 911
of the defects that render the document insufficient under
sections 910 and 910.2 and thus might hamper investigation
and possible settlement of the claim. Such a written notice
claiming monetary damages thereby satisfies the purposes of
the claims act—to facilitate investigation of disputes and their
settlement without trial if appropriate.” (Phillips, supra, 49
Cal.3d at p. 709.)
Plaintiffs rely on three cases—Phillips, supra, 49 Cal.3d
699, Alliance Financial, supra, 64 Cal.App.4th 635, and Foster v.
McFadden (1973) 30 Cal.App.3d 943 (Foster)—in support of their
contention that the bid protest was a “claim as presented.”
In Phillips, the plaintiff underwent unsuccessful surgery at
the defendant hospital. (Phillips, supra, 49 Cal.3d at pp. 702–
703.) Counsel for the plaintiff and her husband thereafter wrote
to the hospital advising it that they intended “to commence an
action” against the hospital arising from medical negligence. (Id.
10 Section 911 provides that, subject to an exception that is
inapplicable here, “[a]ny defense as to the sufficiency of the claim
based upon a defect or omission in the claim as presented is
waived by failure to give notice of insufficiency with respect to
the defect or omission as provided in Section 910.8 . . . .”
20
at p. 703.) The letter further stated that the plaintiff suffered
“subsequent complications, treatment, damages and emotional
distress,” and that the plaintiff’s husband would “claim damages
for loss of consortium and for his mental and emotional suffering”
based on his wife’s injuries. (Ibid.) Our high court concluded the
letter, “which disclose[d] the existence of a claim that if not paid
or otherwise resolved [would] result in litigation,” triggered the
defendant’s duty to advise the plaintiff and her husband that
their letter failed to satisfy the requirements of the Government
Claims Act, i.e., it was a “claim as presented.” (Id. at pp. 707–
708.)
In Alliance Financial, the plaintiff purchased invoices for
janitorial services rendered to defendant. (Alliance Financial,
supra, 64 Cal.App.4th at p. 639.) The plaintiff’s counsel then
wrote to the defendant, notified it of the plaintiff’s entitlement to
payment under the invoices, identified the sums due under the
invoices, and asked for information related to the invoices to
“ ‘avoid the necessity of litigation in this matter.’ ” (Ibid.) The
plaintiff’s counsel sent a second letter, reiterating the plaintiff’s
entitlement to the amounts due under the invoices and offering to
meet “prior to filing an action for recovery” of the disputed sums.
(Id. at pp. 646–647.) Relying on Phillips, the court held that the
letters by the plaintiff’s counsel constituted a “claim as
presented.” (Ibid.) The court emphasized that the first letter
“states the existence of a debt, asserts a right to payment, [and]
speaks of avoiding litigation,” and that the second letter “informs
the [defendant] that the claim is ripe and that litigation can be
expected if the matter is not resolved.” (Ibid.)
Last, in Foster, the plaintiff was struck by a bulldozer
operated by the defendant’s employee. (Foster, supra, 30
21
Cal.App.3d at p. 945.) The plaintiff’s counsel wrote to the
defendant’s employee, with a copy to the defendant, and advised
the employee of the plaintiff’s name, the date and place of the
accident, and asked the employee to forward the letter to the
employee’s insurance carrier. (Ibid.) The letter further advised
that if the employee was not insured, the employee should
contact the attorney to discuss “what to do about the matter,” and
closed with the “hope that direct dealing between the parties
would avoid the necessity for ‘initiating formal proceedings.’ ”
(Ibid.) The court held that the letter “accomplished the two
principal purposes of a sufficient claim. It afforded the
[defendant] the opportunity to make a prompt investigation of
the accident” and “gave to the [defendant] the opportunity to
settle without suit, if it so desired.” (Id. at p. 949.)
We find the present case distinguishable from Phillips,
Alliance Financial, and Foster. To be sure, the bid protest
objected to the City’s decision to subject management of the
airport art studios to competitive bidding. Among other things,
Govrin’s 22-page letter protested the City’s “take over” of his
business; that his “business and its concept” were his intellectual
property; that his “rights to free enterprise have been infringed
upon”; and that the City’s decision to allow the airport art studios
to continue under different management “without compensating
[him] for it . . . is simply morally unethical.” Govrin’s letter
likewise protested the alleged affiliations between the bid
selection panelists and 18th Street Art Center. Last, the letter
objected to the score given Maxima’s proposal by the bid selection
panelists and requested the City to re-score the proposal with
different bid selection panelists.
22
However, despite its claim to a “moral[ ]” entitlement to
compensation, we have significant doubts about whether the bid
protest—even assuming it was submitted on behalf of all three
plaintiffs—adequately indicated that plaintiffs were making a
claim against the City for monetary damages.11 (See Phillips,
supra, 49 Cal.3d at p. 710 [letter constitutes “claim as presented”
where “the existence of a claim for monetary damages is
definitely disclosed by the document”]; Green v. State Center
Community College District (1995) 34 Cal.App.4th 1348, 1357
(Green) [letter was not “claim as presented” where, among other
things, there was nothing in letter from which court could “even
infer that a claim was being made”].)
But even assuming it did, unlike the letters in Phillips,
Alliance Financial, and Foster, the bid protest failed whatsoever
to indicate that plaintiffs intended to bring a lawsuit against
defendants in the event the airport art studios contract was
11 In addition to the letter’s equivocal claim to monetary
damages, we find it notable that Govrin sent the letter before the
City awarded the airport art studios contract to a competitor. A
claim for damages based on the loss of Govrin’s business—the
basis for most of plaintiffs’ subsequent causes of action—would
thus have been premature at that stage.
Also, the bid protest fails to mention the alleged statements that
are the subject of plaintiffs’ cause of action for defamation, let
alone indicate that plaintiffs were making a claim for damages
based on those statements. In this respect, the letter clearly
failed to satisfy the “claim as presented” test. (See Olson, supra,
17 Cal.App.5th at p. 1062 [union grievance was not “claim as
presented” regarding defamation or deceit claims where “nothing
in the grievance suggests appellant was asserting or would assert
those claims”].)
23
awarded to a competitor. (See Olson, supra, 17 Cal.App.5th at p.
1062 [union grievance was not “claim as presented” where
“nowhere does the grievance threaten litigation if the contractual
breaches are not remedied”]; Green, supra, 34 Cal.App.4th at p.
1359 [letter was not “claim as presented” where, among other
things, “there is nothing in counsel’s . . . letter to the [defendant]
remotely implying . . . that counsel would initiate litigation if
[plaintiff’s] demand was not satisfied”].) Far from threatening
litigation, the bid protest closed simply with a request that
Maxima’s proposal be re-scored. The bid protest thus fails to
“disclose[ ] the existence of a ‘claim’ which, if not satisfactorily
resolved, will result in a lawsuit against the entity.” (Phillips,
supra, 49 Cal.3d at p. 709, italics added.)
In sum, we reject plaintiffs’ contention that the November
13, 2018 bid protest constituted a “claim as presented,” and that
the City was thus barred from asserting that the letter was
insufficient to satisfy the claim presentation requirements of the
Government Claims Act.12
D. Equitable estoppel and equitable tolling
Plaintiffs contend that even if the bid protest did not
constitute a “claim as presented,” the doctrines of equitable
12 Defendants argue that, in addition to failing to satisfy the
“claim as presented” test, plaintiffs fail to show the bid protest
satisfies the “substantial compliance” test. (See, e.g., Olson,
supra, 17 Cal.App.5th at pp. 1059–1062 [describing “claim as
presented” and “substantial compliance” tests].) We do not
address that argument because plaintiffs do not contend that the
bid protest satisfied the “substantial compliance” test.
24
estoppel and equitable tolling apply here and excuse their failure
to present a timely claim.13 We address each doctrine in turn.
1. Equitable estoppel
Under the heading “Equitable Tolling Principles,” plaintiffs
cite and quote from cases involving equitable estoppel. Plaintiffs
do not separately argue how the doctrine of equitable estoppel
applies here and the issue appears to be subsumed by their
discussion of equitable tolling. As a result, plaintiffs have
forfeited their equitable estoppel argument. (See Consolidated
Irrigation District v. City of Selma (2012) 204 Cal.App.4th 187,
201 [failure to comply with rule that each argument be presented
under a separate heading forfeits the argument]; Hodjat v. State
Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10
[“[A]n appellant is required to not only cite to valid legal
authority, but also explain how it applies in his case.”].)
Nevertheless, we address the issue in the interest of justice, and
because it is intertwined with plaintiffs’ equitable tolling
argument.
“It is well settled that a public entity may be estopped from
asserting the limitations of the claims statute where its agents or
employees have prevented or deterred the filing of a timely claim
by some affirmative act. [Citations.] Estoppel most commonly
results from misleading statements about the need for or
advisability of a claim; actual fraud or the intent to mislead is not
essential.” (John R. v. Oakland Unified School District (1989) 48
Cal.3d 438, 445 (John R.).) “ ‘Estoppel may also be invoked
13 Defendants contend plaintiffs waived their equitable tolling
argument by failing to raise it in the trial court. We disagree for
the reasons explained in footnote 8.
25
where conduct on behalf of the public entity induces a reasonably
prudent person to avoid seeking legal advice or commencing
litigation.’ ” (J.P. v. Carlsbad Unified School District (2014) 232
Cal.App.4th 323, 333 (J.P.).)
“ ‘Estoppel as a bar to a public entity’s assertion of the
defense of noncompliance arises when the plaintiff establishes by
a preponderance of the evidence: (1) the public entity was
apprised of the facts, (2) it intended its conduct to be acted upon,
(3) plaintiff was ignorant of the true state of facts, and (4) relied
upon the conduct to his detriment.’ ” (J.P., supra, 232
Cal.App.4th at p. 333.) “ ‘ Reliance by the party asserting the
estoppel on the conduct of the party to be estopped must have
been reasonable under the circumstances.’ ” (Santos v. Los
Angeles Unified School District (2017) 17 Cal.App.5th 1065,
1076.)
Plaintiffs’ equitable estoppel argument, like their equitable
tolling argument, appears to rest on the provision in the City’s
airport art studios RFP stating as follows: “By submitting a
response to this RFP, prospective consultants waive the right to
protest after award or seek any legal remedies whatsoever
regarding any aspect of this RFP.” Plaintiffs contend this
provision was ambiguous and led Govrin to reasonably believe
that by submitting a proposal, he waived his ability (and
presumably the ability of SMAS and Maxima) to pursue not only
a legal challenge to the RFP, but any legal challenge to the City’s
later award of the airport art studios contract. Plaintiffs invoke
contract interpretation principles and argue that the alleged
ambiguity in the RFP should be construed against the City.
As an initial matter, despite their reliance on contract
interpretation principles, plaintiffs do not contend the RFP
26
provision in fact barred their lawsuit. Their reliance on contract
interpretation principles is thus unhelpful here. The core of
plaintiffs’ argument is instead that Govrin was reasonably misled
by the alleged ambiguity in the RFP to believe he could not
pursue any legal action against defendants, either on his own
behalf or on behalf of SMAS and/or Maxima.14
We disagree that this argument supports the application of
equitable estoppel here. Even assuming Govrin relied on the
purported ambiguity in the RFP provision in failing to present a
timely claim on behalf of himself, SMAS and/or Maxima, we are
not convinced such reliance was reasonable under the
circumstances. In rejecting the application of equitable estoppel
in Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298,
1317 (Steinhart), our high court found it “significant” that, as
here, the statements on which the appellant based her estoppel
claim “were, at most, ambiguous and confusing . . . .” Steinhart
stressed “where a party asserts estoppel, ‘the facts proved must
be such that an estoppel is clearly deducible from them,’ ” and
that the “ ‘representation, whether by word or act, to justify a
prudent man in acting upon it, must be plain, not doubtful or
matter of questionable inference. Certainty is essential to all
estoppels. [Citation].’ ” (Id. at p. 1318.)
14 We note that plaintiffs do not address an apparent
inconsistency in their argument. Although they argue that the
RFP misled Govrin to believe he could not pursue any type of
legal action regarding the airport art studios contract, he
apparently filed a complaint with the Fair Political Practices
Commission in May 2019 regarding the City’s decision to award
the contract to 18th Street Art Center.
27
Steinhart thus helps to explain why the equitable estoppel
cases plaintiffs cite are distinguishable—none involved
ambiguous statements or conduct. For example, both John R.
and J.P. involved defendants that explicitly instructed the
injured parties not to discuss their claims with anyone. (See
John R., supra, 48 Cal.3d at p. 442 [teacher threatened
retaliation against student if student reported molestation to
anyone]; J.P., supra, 232 Cal.App.4th at pp. 327–329 [parents of
molested students were repeatedly told by school officials and
criminal prosecutor not to discuss their children’s allegations
with anyone].) The purported ambiguity in the RFP is not
equivalent to such statements, which directly discouraged the
injured parties from seeking advice about their legal claims. (See
J.P. at p. 336 [substantial evidence supported jury’s finding that
children’s parents reasonably interpreted statements of school
officials “as prohibiting any discussion of the molestation incident
with civil lawyers or others who might have counseled them to
file a government claim”].)
Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238(Sofranek), involved a defendant that sent a response to the
plaintiff’s claim which specifically misled the plaintiff about the
deadline for pursing a lawsuit. (See id. at p. 1251 [“[B]y
informing Sofranek he had six months from August 2004 to file
suit, the County’s course of conduct was inconsistent with
treating the limitations period as running from the March 2004
rejection notice”].) Unlike in Sofranek, defendants did not say
anything to plaintiffs, let alone mislead them, about the
deadlines for presenting a claim or pursuing a lawsuit.
Finally, Bertorelli v. City of Tulare (1986) 180 Cal.App.3d
432 (Bertorelli), is also distinguishable. There, soon after the
28
plaintiff’s claim accrued he was involved in ongoing settlement
discussions with an insurance adjuster for the defendant, who
referred in correspondence to the plaintiff’s “personal injury
claim.” (Id. at p. 441.) The court concluded that the “continuous
settlement negotiations grounded on the public entity’s
knowledge” of the plaintiff’s claim “could induce a reasonably
prudent person to rely on the continued state of affairs without
seeking counsel. A reasonably prudent person would believe that
nothing further need be done to preserve his or her claim.” (Ibid.)
By contrast, plaintiffs do not allege that they were in ongoing
settlement negotiations with the defendants regarding their
claims. To the contrary, a declaration Govrin submitted in the
trial court stated that after the City rejected the bid protest, his
subsequent letters to City officials regarding the airport art
studios contract went unanswered.
We see no reason to discuss the remaining equitable
estoppel cases cited by plaintiffs other than to note that they are
plainly inapposite too.15
15 See City of Long Beach v. Mansell (1970) 3 Cal.3d 462[estoppel barred state and city from claiming title to disputed
land where they “conducted themselves relative to settled and
subdivided lands . . . as if no title problems existed and have
misled thousands of homeowners in the process”]; Citizens for a
Responsible Caltrans Decision v. Department of Transportation
(2020) 46 Cal.App.5th 1103, 1131–1132 [disputed factual issue
whether state agency made misleading statements regarding
timeline and process for issuing environmental impact report,
intending statements to be relied upon]; Kleinecke v. Montecito
Water District (1983) 147 Cal.App.3d 240, 247 [estoppel barred
defendant from raising statute of limitations defense where
wrong party, represented by defendant’s counsel, was served with
29
We further disagree with plaintiffs’ contention that their
failure to seek legal advice regarding the claims at issue was
reasonable under the circumstances. Plaintiffs emphasize that
the bid protest stated that “the proposal process also does not
allow [Govrin] to seek counsel or actively engage with other city
officials.” According to plaintiffs, although this statement
revealed Govrin’s misunderstanding about the scope of the RFP
provision, the City’s response to the bid protest failed to advise
Govrin about his right to seek counsel.
But the City did not have a duty to advise Govrin to seek
counsel or inform him of the claim presentation requirements of
the Government Claims Act. (See Tyus v. City of Los Angeles
(1977) 74 Cal.App.3d 667, 673 [rejecting argument that board of
police commissioners and mayor, who received letters from
appellant regarding his arrest, had “duty to advise appellant of
the claims statutes or to consult an attorney”].) Furthermore,
and importantly, even if the RFP was ambiguous regarding
plaintiffs’ ability to pursue legal action, plaintiffs point to nothing
in the RFP suggesting they were barred from consulting legal
counsel. (Compare J.P., supra, 232 Cal.App.4th at p. 336.) If
anything, the purported ambiguity in the RFP should have led
Govrin, a layperson with a significant stake in the continued
management of the airport art studios, to promptly consult legal
counsel regarding the scope and impact of the RFP. We thus
agree with the trial court’s conclusion that it “was unreasonable
for Govrin not to consult counsel or request clarification from the
complaint, and counsel filed answer on behalf of wrong party
containing a general denial “which served to divert plaintiff’s
counsel’s attention away from the statute of limitations”].
30
City itself as to the [RFP provision].” (See Bertorelli, supra, 180
Cal.App.3d at p. 439 [“ ‘claimant must at a minimum make a
diligent effort to obtain legal counsel . . . after the accrual of the
cause of action . . . . The reasonable and prudent course of
conduct under the circumstances of this case was to seek legal
counsel.’ ”]; see also Munoz v. State of California (1995) 33
Cal.App.4th 1767, 1779 [“The claimant must, at a minimum,
make a diligent effort to obtain legal counsel within six months
after the accrual of the cause of action.”].)
In sum, we conclude that plaintiffs’ equitable estoppel
argument fails as a matter of law. (See California Cigarette
Concessions v. City of Los Angeles (1960) 53 Cal.2d 865, 868
[“When . . . the facts are undisputed, the existence of an estoppel
is a question of law”].)
2. Equitable tolling
“Equitable tolling is a ‘judicially created, nonstatutory
doctrine’ that ‘ “suspend[s] or extend[s] a statute of limitations as
necessary to ensure fundamental practicality and fairness.” ’
[Citation.] The doctrine applies ‘occasionally and in special
situations’ to ‘soften the harsh impact of technical rules which
might otherwise prevent a good faith litigant from having a day
in court.’ [Citation.] Courts draw authority to toll a filing
deadline from their inherent equitable powers—not from what
the Legislature has declared in any particular statute. [Citation.]
For that reason, we presume that statutory deadlines are subject
to equitable tolling.” (St. Francis Memorial Hospital v. State
Department of Public Health (2020) 9 Cal.5th 710, 719–720
(Saint Francis).)
Equitable tolling derives from three lines of cases. In one
line of cases, “[c]ourts found a basis to offer some flexibility from
31
the statute of limitations when a plaintiff was already involved in
one lawsuit, and filed a subsequent case that could lessen the
damage or harm that would otherwise have to be remedied
through a separate case.” (Saint Francis, supra, 9 Cal.5th at
p. 724.) In a second line of cases, “courts toll statutes of
limitations in situations where a plaintiff was required to pursue,
and did indeed pursue, an administrative remedy before filing a
civil action.” (Ibid.) “In a third line of cases, courts tolled the
statute of limitations ‘ “to serve the ends of justice where
technical forfeitures would unjustifiably prevent a trial on the
merits.” ’ ” (Ibid.)
Plaintiffs do not base their equitable tolling argument on
their pursuit of a prior lawsuit or administrative remedy. It thus
appears their argument rests on the third line of cases. Indeed,
“pursuit of an alternate remedy is not always required for
equitable tolling. The doctrine is applied flexibly to ‘ensure
fundamental practicality and fairness.’ [Citations.] . . . . ‘As with
other general equitable principles, application of the equitable
tolling doctrine requires a balancing of the injustice to the
plaintiff occasioned by the bar of his claim against the effect upon
the important public interest or policy expressed by the
[Government] Claims Act limitations statute.’ ” (J.M. v.
Huntington Beach Union School District (2017) 2 Cal.5th 648,
658 (J.M.).)
Notwithstanding the flexible nature of the equitable tolling
doctrine, a plaintiff seeking the benefit of equitable tolling must
show three elements: (1) timely notice; (2) lack of prejudice to the
defendant; and (3) reasonable and good faith conduct on the part
of the plaintiff. (Saint Francis, supra, 9 Cal.5th at p. 724.)
32
Plaintiffs’ equitable tolling argument relies on similar
considerations as their equitable estoppel argument. They
contend the RFP reasonably misled Govrin regarding plaintiffs’
ability to pursue legal action to challenge the City’s award of the
airport art studios contract. They further argue that the bid
protest gave defendants adequate notice of plaintiffs’ claims; that
because defendants had adequate notice of plaintiffs’ claims,
defendants were not prejudiced in their ability to defend the
claims on the merits; and that plaintiffs acted reasonably and in
good faith by submitting the bid protest and thereafter sending
letters to various public officials describing objections to the
City’s decision regarding management of the airport art studios
contract.
Our conclusion that plaintiffs fail to allege facts sufficient
to warrant equitable tolling, although framed by the specific
elements of equitable tolling, substantially mirrors our earlier
analysis regarding both plaintiffs’ “claim as presented” and
equitable estoppel arguments.16
“When considering whether a plaintiff provided timely
notice, courts focus on whether the party’s actions caused the
defendant to be ‘fully notified within the [statute of limitations] of
16 Defendants contend that equitable tolling does not apply to
the six-month deadline for presenting a claim under section 911.2
of the Government Claims Act. (See Willis v. City of Carlsbad
(2020) 48 Cal.App.5th 1104, 1121 [“We conclude the doctrine of
equitable tolling cannot be invoked to suspend section 911.2’s six-
month deadline for filing a prerequisite government claim.”].) We
need not reach that argument. Even assuming equitable tolling
applies here, we conclude that plaintiffs have failed to satisfy the
elements of equitable tolling.
33
plaintiffs’ claims and their intent to litigate.’ ” (Saint Francis,
supra, 9 Cal.5th at p. 726.) This first element of equitable tolling
“ought to be interpreted literally: When confronted with
equitable tolling claims, courts must examine each case on its
facts to determine whether the defendant received timely notice
of the plaintiff's intent to file suit.” (Id. at p. 727.)
As we determined in connection with plaintiffs’ “claim as
presented” argument, nothing in the bid protest clearly alerted
defendants to plaintiffs’ intent to litigate their claims. (Compare
Saint Francis, supra, 9 Cal.5th at p. 727 [notice element satisfied
where, before expiration of statute of limitations, appellant filed
request for reconsideration of disputed decision and notified
opposing counsel of intention to file writ of mandate if request for
reconsideration was unsuccessful]; see also Addison v. State of
California (1978) 21 Cal.3d 313, 319 [notice element satisfied
where plaintiffs presented Government Claims Act claim and
filed federal court lawsuit within applicable deadlines].) Because
plaintiffs fail to cite anything else that allegedly “fully notified”
defendants within the applicable six-month claim presentation
deadline of plaintiffs’ intent to litigate their claims (Saint
Francis, supra, 9 Cal.5th at p. 726), we are doubtful plaintiffs
have satisfied the first element of equitable tolling.
For much the same reason, we are not convinced plaintiffs
have adequately shown a lack of prejudice to defendants. (See
Saint Francis, supra, 9 Cal.5th at p. 728 [“core focus” of prejudice
analysis is “whether application of equitable tolling would
prevent the defendant from defending a claim on the merits”].) It
appears that the earliest plaintiffs made defendants aware of
their intent to litigate their claims was May 31, 2020, when
plaintiffs presented a late claim nearly a year after the applicable
34
six-month claim presentation deadline expired.17 Defendants
thus lost considerable time in which “to gather defense evidence
in the event a court action ultimately [was] filed.” (Addison v.
State of California, supra, 21 Cal.3d at p. 318.)
But even assuming plaintiffs could demonstrate notice and
lack of prejudice, we conclude that they fail to show the final
element of equitable tolling: reasonable and good faith conduct.
(Saint Francis, supra, 9 Cal.5th at p. 728.) To satisfy this
element, a “plaintiff’s conduct must be objectively reasonable and
subjectively in good faith.” (Id. at p. 729.)
“An analysis of reasonableness focuses not on a party’s
intentions or the motives behind a party’s actions, but instead on
whether that party’s actions were fair, proper, and sensible in
light of the circumstances.” (Saint Francis, supra, 9 Cal.5th at
p. 729.) Thus a “party seeking equitable tolling must satisfy a
similar standard: It must demonstrate that its late filing was
objectively reasonable under the circumstances.” (Ibid.)
Plaintiffs’ failure to meet the six-month claim presentation
requirement was not objectively reasonable under the
circumstances.18 As we have already concluded above, faced with
a purportedly ambiguous RFP provision that could affect the
ability to pursue legal action and the significant stakes involved,
it was objectively unreasonable for Govrin, a layperson, not to
17 As noted already, because the May 2020 claim is not in the
record, we cannot determine whether it was presented on behalf
of all three plaintiffs or just Govrin.
18 Because we find that plaintiffs’ conduct was not objectively
reasonable, we need not address whether it was also subjectively
in good faith. (See Saint Francis, supra, 9 Cal.5th at p. 729.)
35
have quickly sought legal counsel regarding plaintiffs’ claims.
(See N.G. v. County of San Diego (2020) 59 Cal.App.5th 63, 74
[“In most cases, ‘ “a petitioner may not successfully argue
excusable neglect when he or she fails to take any action in
pursuit of the claim within the six-month period,” ’ including
making an attempt to retain counsel.”]; see also Munoz v. State of
California, supra, 33 Cal.App.4th at p. 1779; Bertorelli, supra,
180 Cal.App.3d at p. 439.) We thus disagree with plaintiffs that
it was reasonable under the circumstances for Govrin to instead
write letters to public officials including the City Mayor, City
Attorney, and a U.S. Congressperson, and to file a complaint with
the Fair Political Practices Commission. Even assuming those
measures were taken in good faith, such conduct standing alone,
given our conclusions above, was not objectively reasonable under
the circumstances. That a claim was presented to the City
shortly after Govrin hired legal counsel underscores the point.
Unfortunately, plaintiffs’ equitable tolling argument
amounts mostly to a “ ‘garden variety claim[ ] of excusable
neglect’ ” (Saint Francis, supra, 9 Cal.5th at p. 730), brought on
primarily by Govrin’s unawareness of the requirements of the
Government Claims Act and his failure to promptly seek legal
counsel who could have advised him about the applicable claim
presentation deadline before it was too late. “If oversight of such
plain rules justified equitable relief, the structure of the
Government Claims Act would be substantially undermined, and
its provisions for timely notice to public entities subverted.”
(J.M., supra, 2 Cal.5th at p. 658; see also St. Francis, at p. 730
[requiring objective reasonableness and subjective good faith
precludes equitable tolling doctrine “from being ‘a cure-all for an
entirely common state of affairs,’ while ensuring that it provides
36
a narrow form of relief in ‘unusual circumstances’ when justice so
requires”].)
We therefore conclude that plaintiffs have not alleged facts
sufficient to show that their failure to present a timely claim in
accordance with the Government Claims Act was excused by the
doctrine of equitable tolling.
E. Further amendment
Leave to amend is properly granted where “resolution of
the legal issues does not foreclose the possibility that the plaintiff
may supply necessary factual allegations.” (City of Stockton v.
Superior Court, supra, 42 Cal.4th at p. 747.) Plaintiffs bear the
burden on appeal of showing in what manner they can amend
their complaint and how that amendment will change the legal
effect of their pleading. (Rakestraw v. California Physicians’
Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) Where
plaintiffs offer no allegations to support the possibility of
amendment and no legal authority showing the viability of new
causes of action, there is no basis for finding the trial court
abused its discretion when it sustained the demurrer without
leave to amend. (Id. at p. 44.)
For the reasons detailed above, the factual allegations that
plaintiffs propose to add to their first amended complaint fail to
demonstrate compliance with the Government Claims Act or
sufficient equitable grounds for excusing such compliance. We
therefore conclude that the trial court did not abuse its discretion
in sustaining defendants’ demurrer to the first amended
complaint without leave to amend. (See Rakestraw, supra, 81
Cal.App.4th at p. 44.)
37
II. Anti-SLAPP appeal
A. Applicable law and standard of review
“Enacted by the Legislature in 1992, the anti-SLAPP
statute is designed to protect defendants from meritless lawsuits
that might chill the exercise of their rights to speak and petition
on matters of public concern. (See [Code Civ. Proc.,] § 425.16,
subd. (a); Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th
610, 619; Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal.4th 180, 192.)” (Wilson v. Cable News Network, Inc. (2019) 7
Cal.5th 871, 883–884 (Wilson).) To that end, Code of Civil
Procedure section 425.16, subdivision (b)(1) provides: “A cause of
action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.”
An “ ‘act in furtherance of a person’s right of petition or free
speech under the United States or California Constitution in
connection with a public issue’ includes: (1) any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in
connection with an issue of public interest, or (4) any other
conduct in furtherance of the exercise of the constitutional right
38
of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (Code Civ.
Proc., § 425.16, subd. (e).)
The analysis of an anti-SLAPP motion involves two steps.
“Initially, the moving defendant bears the burden of establishing
that the challenged allegations or claims ‘aris[e] from’ protected
activity in which the defendant has engaged.” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1061 (Park).) A claim arises from protected activity “when that
activity underlies or forms the basis for the claim.” (Id. at
p. 1062.) Hence, “in ruling on an anti-SLAPP motion, courts
should consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently
form the basis for liability.” (Id. at p. 1063.) “In deciding
whether the ‘arising from’ requirement is met, a court considers
‘the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.’ ” (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 79, quoting Code Civ.
Proc., § 425.16, subd. (b).)
If the defendant carries its burden to demonstrate that
plaintiff’s claims arise from protected activity, the plaintiff must
then demonstrate its claims have at least “ ‘minimal merit.’ ”
(Wilson, supra, 7 Cal.5th at p. 884.) To do so, “plaintiff must
show the complaint is legally sufficient and ‘ “ ‘supported by a
sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is
credited.’ . . . ” ’ ” (Taheri Law Group v. Evans (2008) 160
Cal.App.4th 482, 488.)
An order granting or denying a special motion to strike is
appealable. (Code Civ. Proc., §§ 425.16, subd. (i), 904.1,
39
subd. (a)(13).) Our review is de novo. (Park, supra, 2 Cal.5th at
p. 1067.)
B. Step one
We begin our analysis at step one with determining
whether plaintiffs’ cause of action for defamation arose from
protected activity. (See Park, supra, 2 Cal.5th at p. 1061.) “ ‘In
the anti-SLAPP context, the critical consideration [for the
defendant’s initial burden] is whether the cause of action is based
on the defendant’s protected free speech or petitioning activity.’ ”
(Tuchscher Development Enterprises, Inc. v. San Diego Unified
Port Dist. (2003) 106 Cal.App.4th 1219, 1232 (Tuchscher).)
As described earlier, plaintiffs alleged that Daut engaged in
defamation by making the following statements to Commission
members, selection panelists, and persons in the City arts
community and the press: “(1) Mr. Govrin’s organization is weak
and does not have funding while 18th Street [Art Center] is
strong financially, has strong management, and provides
outstanding programs; (2) Informing Mr. Govrin in front of the
selection panelists: ‘no more money will be given to you,’
suggesting that the city had given him money (which it did not),
and placing Mr. Govrin in a bad light in front of the RFP
decision-makers. Ms. Daut and Mr. McKeown repeated this
information to the press and in emails and private meetings with
private individuals in the arts community.” Plaintiffs further
alleged that McKeown “falsely claimed to the press that city
officials subsidized SMAS’ rent by $4 to $6 Million. He also
asked the city to audit SMAS.”
The trial court agreed with defendants that their alleged
defamatory statements constituted “conduct in furtherance of the
exercise of the constitutional right of petition or the
40
constitutional right of free speech in connection with a public
issue or an issue of public interest.” (Code Civ. Proc., § 425.16,
subd. (e)(4).) Relying on Tuchscher, the trial court concluded that
the award of a city contract is an issue of public interest. The
trial court further concluded that defendants’ alleged statements
regarding plaintiffs’ financial condition, funding, and subsidies
all concerned the award of the airport art studios contract.
In Tuchscher, the plaintiff’s lawsuit alleged the defendants,
a city and private developers, conspired to deprive the plaintiff of
the benefits of its agreement with the city to develop bayfront
property. (Tuchscher, supra, 106 Cal.App.4th at pp. 1227–1228.)
The court noted there appeared “to be no dispute that the
proposed development . . . is a matter of public interest, and thus
[the defendants’] statements and writings fall within subdivision
(e)(4) of section 425.16.” (Id. at p. 1233.) The court emphasized
that the development would have “broad effects on the
community”; that the city approved the agreement with plaintiff
“after being publicly noticed and agendized on four separate
occasions”; and that the plaintiff had conducted forums “with
government agencies, local community groups, and individuals”
regarding the planned project. (Id. at pp. 1233–1234.)
We agree with the trial court that plaintiffs’ cause of action
for defamation arose from protected activity under the anti-
SLAPP statute. Defendants adequately demonstrated that the
subject of the alleged defamatory statements—the City’s contract
for management of the airport art studios and SMAS’s fitness to
continue managing the studios—concerned a matter of public
interest within the meaning of Code of Civil Procedure section
425.16, subdivision (e)(4). (See Tuchscher, supra, 106
Cal.App.4th at pp. 1233–1234; see also Weinberg v. Feisel (2003)
41
110 Cal.App.4th 1122, 1132 [“a matter of public interest should
be something of concern to a substantial number of people”];
Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th
468, 479 [“ ‘public interest’ . . . has been broadly construed to
include not only governmental matters, but also private conduct
that impacts a broad segment of society and/or that affects a
community in a manner similar to that of a governmental
entity”].)
Defendants submitted McKeown’s declaration, which
established that the City’s operation and management of the
airport are matters that frequently came before the City Council
and “have always generated intense interest from the general
public”; that airport issues considered by the City Council in open
session typically “enjoy[ed] a robust and well-attended public
hearing”; and that neighborhood groups had for decades
petitioned City Council members to expand non-aviation uses of
the airport, including its art facilities. As explained by Daut’s
declaration, the airport is “home to the largest concentration of
artists working in the City,” and there is a “long and rich
tradition of artists working at the Airport” dating back to the
1950’s.
The allegations in plaintiffs’ first amended complaint also
supported the City’s contention that management of the airport
art studios was a matter of public interest. For example, the
complaint alleged that when the City Council held its meeting to
consider award of the art studios contract, it heard from “dozens
of artists who appeared at the hearing to support” Maxima’s bid
proposal. The complaint further alleged that “[t]wo thousand five
hundred members of the community signed and submitted a
petition to the City Council” in favor of SMAS, and that 31 of the
42
35 artists with studios at the airport signed a petition requesting
the City to retain SMAS as a manager of the airport art studios.
On appeal, plaintiffs do not appear to dispute that the
City’s contract for management of the airport art studios and
SMAS’s fitness to continue managing the studios were matters of
public interest within the meaning of the anti-SLAPP statute.19
Rather, they contend defendants are not entitled to protection
under the anti-SLAPP statute because “the defamation cause of
action is not based on any right of free speech or petitioning
activity,” but instead defendants’ allegedly defamatory
statements. They argue that the “defamatory statements of
[defendants], although related to an issue of a public interest
nature (a city contract) veered far beyond being an issue of
interest to the public into purely defamatory language against
plaintiffs.” Plaintiffs further maintain that McKeown and Daut
made the purportedly defamatory statements in order to “destroy
Appellant Govrin’s character and good name during the RFP
process” and ensure that “their preferred contractor won the
contract.” Finally, plaintiffs urge that, while “management of the
airport studios may have been a topic of some public interest,”
the denigration of Govrin and his business was not.
We are not persuaded by plaintiffs’ arguments, which
appear to rest on the mistaken view that defendants cannot meet
19 In fact, in their opposition to the anti-SLAPP motion in the
trial court, plaintiffs noted that McKeown’s statement to the
press “involved a matter of public concern,” that “the
management of the airport studios may have been a topic of some
public interest” and that McKeown’s “conduct and speech may
have some elements of protection, to the extent that he was
speaking about a public contract.”
43
their burden at step one of the anti-SLAPP analysis because the
challenged statements were defamatory. A similar argument
was rejected more than two decades ago in Fox Searchlight
Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294. There, the
court explained: “Fox argues its suit does not fall within the
SLAPP statute because Paladino has no First Amendment right
to disclose privileged and confidential documents or to refuse to
return those documents to Fox, their rightful owner. The same
argument could be made by the plaintiff in a defamation suit—
the defendant has no First Amendment right to engage in libel or
slander. Yet, defamation suits are a prime target of SLAPP
motions. [¶] The problem with Fox’s argument is that it confuses
the threshold question of whether the SLAPP statute applies
with the question whether Fox has established a probability of
success on the merits. The Legislature did not intend that in
order to invoke the special motion to strike the defendant must
first establish her actions are constitutionally protected under
the First Amendment as a matter of law. If this were the case
then the inquiry as to whether the plaintiff has established a
probability of success would be superfluous.” (Id. at p. 305, fns.
omitted; see also Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 464 [rejecting trial
court’s conclusion that defamatory statements can never be
protected activity under anti-SLAPP statute].)
Nor do we agree, as plaintiffs contend, that this case
involves a so-called “ ‘mixed cause of action’ that combines
allegations of activity protected by the [anti-SLAPP] statute with
allegations of unprotected activity.” (Baral v. Schnitt (2016) 1
Cal.5th 376, 381.) Plaintiffs appear to argue the cause of action
is “mixed” because, although management of the airport art
44
studios was a matter of public interest, defaming Govrin and his
business was not. This does not describe a “mixed cause of
action” under Baral. The argument instead appears to rest on
the same mistaken premise described above, i.e., that defendants
cannot meet their burden at step one of the anti-SLAPP analysis
because, even if the alleged statements of McKeown and Daut
concerned a matter of public interest, the statements lost their
protection because they were defamatory. We reject this
argument for the reasons described above. (See Hecimovich v.
Encinal School Parent Teacher Organization, supra, 203
Cal.App.4th at p. 464; Fox Searchlight Pictures, Inc. v. Paladino,
supra, 89 Cal.App.4th at p. 305)
Last, whether McKeown and Daut made the challenged
statements to cause Govrin harm or favor 18th Street Art Center,
as plaintiffs allege, is not relevant at step one of the anti-SLAPP
analysis. (See Wilson, supra, 7 Cal.5th at p. 888 [“at the first
step of the anti-SLAPP analysis, we routinely have examined the
conduct of defendants without relying on whatever improper
motive the plaintiff alleged”]; Ojjeh v. Brown (2019) 43
Cal.App.5th 1027, 1038 [“our task at the first stage of the anti-
SLAPP analysis is to examine the challenged conduct without
regard to the allegations of improper motive”].)
In sum, we conclude that defendants met their burden of
demonstrating that plaintiffs’ defamation cause of action arose
from protected activity. (Park, supra, 2 Cal.5th at p. 1061.)
C. Step two
At step two of the anti-SLAPP analysis, we examine
whether the plaintiffs have demonstrated their claims have at
least “ ‘minimal merit.’ ” (Wilson, supra, 7 Cal.5th at p. 884.)
45
We conclude that plaintiffs fail to demonstrate their
defamation cause of action has at least minimal merit. First,
apart from their failure to comply with the Government Claims
Act, plaintiffs failed to file their complaint within one year of the
accrual of their cause of action for defamation. (See Code Civ.
Proc., § 340, subd. (c).) Plaintiffs’ cause of action accrued when
McKeown and Daut made the allegedly defamatory statements.
(See Shivley v. Bozanich (2003) 31 Cal.4th 1230, 1247 [cause of
action for defamation accrues “at the time the defamatory
statement is ‘published’ ”].) Although the first amended
complaint does not identify the date of the challenged statements,
plaintiffs do not dispute the trial court’s determination that the
statements occurred no later than December 18, 2018, the date
the City awarded the airport art studios contract. Because
plaintiffs filed their complaint on November 17, 2020, more than
a year later, their defamation cause of action was barred by the
applicable one-year statute of limitations.
Second, even if the one-year statute of limitations did not
apply here because a separate statute of limitations applies in
cases subject to the Government Claims Act (see § 945.6
[providing statutes of limitations for suits “against a public entity
on a cause of action for which a claim is required to be
presented”]; County of Los Angeles v. Superior Court (2005) 127
Cal.App.4th 1263, 1267–1268), plaintiffs’ cause of action still fails
because they did not present a timely claim in accordance with
the Government Claims Act (see City of San Jose v. Superior
Court (1974) 12 Cal.3d 447, 454 [“Compliance with the claims
statutes is mandatory [citation] and failure to file a claim is fatal
to the cause of action.”]; Olson, supra, 17 Cal.App.5th at
46
pp. 1060–1064 [affirming dismissal of defamation cause of action
for failure to comply with claim presentation requirements]).
On appeal, plaintiffs’ argument regarding step two of the
anti-SLAPP analysis, in total, is that their defamation cause of
action was not time-barred “because the provisions of the
[Government Claims Act] were not satisfied and the principles of
equitable tolling apply” to their first amended complaint. We
have rejected both arguments already.
In sum, plaintiffs fail to demonstrate their defamation
cause of action has minimal merit. The trial court thus correctly
granted defendants’ anti-SLAPP motion.
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DISPOSITION
The trial court’s judgment is affirmed. The trial court’s
ruling sustaining defendants’ demurrer without leave to amend
and its order granting defendants’ special motion to strike
pursuant to Code of Civil Procedure section 425.16 are affirmed.
Plaintiffs’ motions to augment the record are granted.
Defendants shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
48