Filed 8/19/24 Rotter v. Bauer CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

SAM ROTTER,

 Plaintiff and Appellant,

v.

ALEXANDRA BAUER, etc.,

 Defendant and Respondent.

 2d Civ. No. B322981

(Super. Ct. No. 56-2021-

00553372-CU-MC-VTA)

(Ventura County)

Sam Rotter filed an action against “Alexandra Bauer, In 

her Official Capacity as Acting Director of the County of Los 

Angeles . . . Child Support Services Department,” hereafter 

“respondent.” Proceeding in propria persona, Rotter appeals from 

the judgment entered after the trial court sustained respondent’s 

demurrer without leave to amend. Appellant contends the trial 

court erroneously concluded that his action is barred because he 

failed to comply with the Government Claims Act. (Gov. Code, 

§ 900 et seq.) 
2

Respondent moved to dismiss the appeal because appellant 

was declared a vexatious litigant and had failed to comply with a 

prefiling order. We deny the motion, but affirm the judgment.1

Motion to Dismiss Appeal 

On November 29, 2022, the Ventura County Superior Court 

declared appellant a vexatious litigant. The superior court 

entered a prefiling order prohibiting appellant “from filing any 

new litigation in the courts of this state in propria persona 

without first obtaining leave of the presiding justice . . . of the 

court where the litigation is proposed to be filed.” (Code Civ. 

Proc., § 391.7, subd. (a).) “‘Litigation’ for purposes of vexatious 

litigant requirements . . . includes proceedings initiated in the 

Courts of Appeal by notice of appeal . . . .” (McColm v. Westwood

Park Assn. (1998) 62 Cal.App.4th 1211, 1219, disapproved on 

other grounds in John v. Superior Court (2016) 63 Cal.4th 91, 99, 

fn. 2.)

Code of Civil Procedure section 391.7, subdvision (b) 

provides that, if a prefiling order has been entered, “[t]he 

presiding justice . . . shall permit the filing of [new] litigation only 

if it appears that the litigation has merit and has not been filed 

for the purposes of harassment or delay. The presiding 

justice . . . may condition the filing of the litigation upon the 

furnishing of security for the benefit of the defendants . . . .” 

Respondent contends appellant violated the prefiling order 

because “[a]fter [he] was declared a vexatious litigant, on June 1, 

2023, [he] filed [the instant] Appeal” without first obtaining “this 

Court’s permission.” Thus, respondent has moved to “dismiss 

1 We grant respondent’s motion to augment the record filed

October 3, 2023.
3

this Appeal.” If it is not dismissed, respondent has requested 

that appellant “furnish security in the amount of $10,000.” 

Respondent erroneously asserts that this appeal was filed 

on June 1, 2023. On that date appellant filed his opening brief. 

The record shows that an amended notice of appeal was filed on 

September 7, 2022, more than two months before he was declared 

a vexatious litigant. In an order dated November 2, 2022, this 

court stated: “It appears appellant intends to appeal the 

judgment entered July 29, 2022, as stated in his amended notice 

of appeal filed September 7, 2022.” 

Accordingly, appellant did not violate the prefiling order 

because he filed his notice of appeal before he was declared a 

vexatious litigant. We therefore deny respondent’s motion. (See 

Forrest v. Department of Corporations (2007) 150 Cal.App.4th 

183, 196, disapproved on other grounds in Shalant v. Girardi

(2011) 51 Cal.4th 1164, 1172, fn. 3 [“In the context of this 

statutory scheme, the word ‘new’ [in Code of Civil Procedure 

section 391.7, subdivision (a)] plainly refers to a civil lawsuit filed 

after entry of the prefiling order”].)

Appellant’s Second Amended Complaint

The operative pleading is appellant’s second amended 

complaint (SAC), which consists of the following four causes of 

action: 

First cause of action: Respondent failed to perform a 

mandatory duty in violation of Family Code sections 4951, 

subdivision (a) and 5700.605. Section 4951 was repealed effective 

January 1, 2016. (Stats. 2015, ch. 493, § 2.) Section 5700.605, 

subdivision (a) provides, “When a support order or incomewithholding order issued in another state . . . is registered, the 
4

registering tribunal of this state shall notify the nonregistering 

party.” 

Second cause of action: Respondent made negligent 

misrepresentations that she was “empowered with enforcement 

authority to intercept payments” to appellant made by Social 

Security and the Employment Development Department (EDD). 

“As a result, [appellant] lost approximately $12,747 to date from 

Social Security and approximately $4,800 to date from EDD.” 

Third cause of action: Respondent “negligently interfered 

with a relationship between [appellant] and at least 3 

architectural employers” by “improperly garnish[ing]” his wages. 

Fourth cause of action: We cannot ascertain the nature of 

appellant’s fourth cause of action. 

Fifth cause of action: Respondent violated Civil Code 

section 1798.24 because she provided “personal information to 

other agencies; in state, out of state, and federal.” Section 

1798.24 provides, “An agency shall not disclose any personal 

information in a manner that would link the information 

disclosed to the individual to whom it pertains unless the 

information is disclosed” as specified in section 1798.24.

Appellant sought to recover his lost income. He claimed, 

“Grand totals of out-of-pocket losses including lost income and 

EDD and [social security] amount to approximately $2,376,000.” 

Appellant also sought injunctive and declaratory relief as well as 

punitive damages. 

Respondent’s Demurrer

In her demurrer to the SAC, respondent contended that the 

first, second, third, and fifth causes of action are barred because 

appellant failed to comply with the Government Claims Act. As 
5

to the fourth cause of action, respondent asserted that it “is 

uncertain [because] it is ambiguous and unintelligible.” 

Trial Court’s Ruling

As to the fourth cause of action, the trial court sustained 

respondent’s demurrer for uncertainty without leave to amend. 

As to the other causes of action, the court sustained respondent’s 

demurrer without leave to amend because appellant had “fail[ed] 

to allege compliance with the claims presentation requirements 

of the Government Claims Act.” Judgment was entered in favor 

of respondent and against appellant. 

Standard of Review

“‘In reviewing a judgment of dismissal after a demurrer is 

sustained without leave to amend, we assume the truth of all 

properly pleaded facts. We examine the complaint's factual 

allegations to determine whether they state a cause of action on 

any available legal theory regardless of the label attached to a 

cause of action. [Citation.] We do not assume the truth of 

contentions, deductions, or conclusions of fact or law, and may 

disregard allegations that are contrary to the law or to a fact that 

may be judicially noticed.’ [Citation.] We review de novo a trial 

court's ruling on a demurrer and examine the operative 

complaint to determine whether it alleges facts sufficient to state 

a cause of action under any legal theory. [Citations.]” 

(Summerfield v. City of Inglewood (2023) 96 Cal.App.5th 983, 

992.) Where, as here, “‘“a demurrer is sustained without leave to

amend, ‘we decide whether there is a reasonable possibility that 

the defect can be cured by amendment: if it can be, the trial court 

has abused its discretion and we reverse; if not, there has been no 

abuse of discretion and we affirm.’”’” (Ibid.)
6

The Government Claims Act

“Suits for money or damages filed against a public entity 

are regulated by statutes contained in division 3.6 of the 

Government Code, commonly referred to as the Government 

Claims Act.[2] . . . ‘Claims for personal injury and property 

damage must be presented within six months after accrual; all 

other claims must be presented within a year. (§ 911.2.) “[N]o 

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 entity and has been acted upon . . . or has been deemed 

to have been rejected . . . .” (§ 945.4.) “. . . [F]ailure to timely 

present a claim for money or damages to a public entity bars a 

plaintiff from filing a lawsuit against that entity.”. . .’” 

(DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 

989-990 (DiCampli-Mintz).)

The “‘purpose of the claims statutes is not to prevent 

surprise, but “to provide the public entity sufficient information 

to 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.”. . .’” (DiCampli-Mintz, supra, 55 Cal.4th 

at p. 991.)

Appellant Has Failed to Carry His Burden on Appeal

“[I]t is settled that: ‘A judgment or order of the lower court 

is presumed correct. . . .’” (Denham v. Superior Court (1970) 2 

2 Unless otherwise stated, all further statutory references 

are to the Government Code.
7

Cal.3d 557, 564.) “‘[A]ppellant bears the burden of overcoming 

the presumption of correctness.’” (Hearn v. Howard (2009) 177 

Cal.App.4th 1193, 1207.)

Appellant has failed to carry his burden on appeal. In the 

SAC appellant alleged: “This challenge [i.e., the claim that he did 

not comply with the Government Claims Act] is resolved through 

the consideration of [his] notification of an Injunction Hearing 

scheduled for 4-30-21 which was served on [respondent] on 2-19-

21 (exhibit 6). [The service date was two months before the April 

19, 2021 filing of his original complaint in the instant action.] . . . 

[T]he notification did provide each element of the specific 

information required in § 910 . . . .”3 

3 Section 910 provides:

“A claim shall be presented by the claimant or by a person 

acting on his or her behalf and shall show all of the 

following:

(a) The name and post office address of the claimant.

(b) The post office address to which the person presenting 

the claim desires notices to be sent.

(c) The date, place and other circumstances of the 

occurrence or transaction which gave rise to the claim 

asserted.

(d) 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.

(e) The name or names of the public employee or employees 

causing the injury, damage, or loss, if known.

(f) The amount claimed if it totals less than ten thousand 

dollars ($10,000) as of the date of presentation of the claim, 

including the estimated amount of any prospective injury, 

damage, or loss, insofar as it may be known at the time of 

the presentation of the claim, together with the basis of 
8

Exhibit 6 to appellant’s SAC is a pleading entitled 

“Complaint for Injunction,” which was filed in the Glendale 

courthouse of the Los Angeles County Superior Court. Appellant 

is the plaintiff, and the defendant is “Cheryl Strange, in her 

official capacity as Secretary of the [Washington State] 

Department of Social and Health Services.” The Complaint for 

Injunction alleges: “Agents working on behalf (i.e. CSSD [Los 

Angeles County Child Support Services Department]) of the 

defendant [Cheryl Strange] . . . are threatening to withhold 

Unemployment insurance funds payable to [appellant] beginning 

on or about 1-17-21.” “As a result of defendants’ (and agent 

CSSD . . .) wrongful conducted against [sic] plaintiff will be 

damaged in the amount of $350 each month . . . .” 

Appellant has not shown how the service of the Complaint 

for Injunction on respondent satisfied the requirements of the 

Government Claims Act. In view of appellant’s allegations in the 

SAC concerning the Complaint for Injunction, we reject his 

contention that, for purposes of the demurrer, he adequately 

showed compliance with the Government Claims Act by the 

following statement in his opposition to the demurrer: “Plaintiff 

hereby forthrightly alleges that he has complied with the 

requirements of the [c]laims [a]ct in a timely manner by 

submitting a claim to the public entity.” 

Appellant argues that he “is excluded from Government 

Claim requirements for non-monetary relief sought,” i.e., his 

computation of the amount claimed. If the amount claimed 

exceeds ten thousand dollars ($10,000), no dollar amount 

shall be included in the claim. However, it shall indicate 

whether the claim would be a limited civil case.”
9

request in the SAC for injunctive and declaratory relief. As a 

general rule, the Government Claims Act does not “impose any 

requirements for nonpecuniary actions, such as those seeking 

injunctive, specific or declaratory relief.” (Loehr v. Ventura

County Community College Dist. (1983) 147 Cal.App.3d 1071, 

1081.) “This exception does not apply, however, where the 

demand for nonmonetary relief is merely incidental or ancillary 

to a prayer for damages. [Citation.]” (Hart v. Alameda County

(1999) 76 Cal.App.4th 766, 782; see also Gatto v. County of

Sonoma (2002) 98 Cal.App.4th 744, 762 [“The claims filing 

requirement remains applicable to actions in which money 

damages are not incidental or ancillary to any specific relief that 

is also sought, but the primary purpose of the action”].)

Appellant’s request for injunctive and declaratory relief is 

incidental or ancillary to his prayer for damages. The primary 

purpose of the SAC is to obtain monetary relief. Appellant 

sought compensatory damages of approximately $2,376,000 as 

well as punitive damages. Pursuant to Civil Code section 3345, 

subdivision (b), he sought “to levy treble damages against 

[respondent]; totaling $7,127,214.” 

Disposition

The judgment is affirmed. Respondent shall recover costs 

on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J. BALTODANO, J.
Jeffrey G. Bennett, Judge

Superior Court County of Ventura

______________________________

Sam Rotter, in propria persona, for Plaintiff and 

Appellant.

Peterson, Bradford, Burkwitz, Gregorio, Burkwitz, 

and Su, and Avi Burkwitz, Lusine Arshakyan, for Defendant and 

Respondent.