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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.,

Plaintiffs and Appellants,

v.

CITY OF SANTA MONICA et al.,

Defendants and Respondents.

B316310

(Los Angeles County

Super. Ct. No. 20STCV43902)

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.

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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.
3

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 
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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 
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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.
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“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 
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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 
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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.
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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 
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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 
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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 timebarred.

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 
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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 
15

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 
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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.
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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 publicentity 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.” ’ ”].) 
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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 
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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.”
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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 . . . .” 
21

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 
22

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.
23

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”].) 
24

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. 
25

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.
26

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 
27

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.
28

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 
29

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 
30

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”].
31

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 
32

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.) 
33

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 sixmonth 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.
34

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 
35

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.) 
36

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 
37

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.)
38

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 
39

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, 
40

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 
41

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 antiSLAPP 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) 
42

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 
43

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.”
44

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 
45

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 antiSLAPP 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.)
46

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 
47

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.
48

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.