Filed 9/15/16 Lewis v. Monthei CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


KEITH ALLEN LEWIS, SR.,
         Plaintiff and Appellant,
                                                                     A143941
v.
E. MONTHEI ET AL.,                                                   (Marin County
                                                                     Super. Ct. No. CIV1401394)
         Defendants and Respondents.


         Plaintiff and appellant Keith Allen Lewis, Sr., appearing in propia persona,
contends the trial court erred in sustaining respondents’ demurrer without leave to amend.
We affirm.
                                                  BACKGROUND
         Appellant is a California inmate housed at San Quentin State Prison. On April 1,
2014, appellant filed a form complaint alleging a cause of action for general negligence
against Kevin Chappell, E. Monthei, Paul Burton, and Sheila Dickson. A June 2014
amended complaint indicates Chappell was sued in his capacity as Warden of San
Quentin State Prison during the time at issue in this action; E. Monthei, Paul Burton, and
Sheila Dickson were sued in their capacity as psychiatrists employed at San Quentin
State Prison during the time at issue.
         Lewis’s April 2014 complaint alleged that, on September 22, 2013, Dr. Dickson
issued a false “Serious Rules Violation Report” regarding appellant, in retaliation for a
document authored by appellant that alleged wrongdoing by doctors at San Quentin. He
also alleged that Dr. Dickson “sexually molested” him. In June 2014, respondents


                                                             1
demurred on the ground that appellant had failed to comply with the claim-presentation
requirements of the Government Claims Act (“Claims Act”) (Govt. Code § 810 et seq.).
Appellant filed a first amended complaint and the trial court gave appellant until August
5 to “file his papers showing compliance with the Government Claims Act. . . .” Later in
August, the trial court stayed the action for 60 days “to allow plaintiff to file an
application with the Victim Compensation & Government Claims Board . . . to present a
late claim, and to take any necessary procedural steps thereafter.”
       In November 2014, the trial court sustained respondents’ demurrer to appellant’s
amended complaint without leave to amend. The court granted respondents’ request for
judicial notice of certain records of the Victim Compensation & Government Claims
Board. The court noted that, although appellant had been afforded additional time to
demonstrate compliance with the claim-presentation requirements of the Claims Act,
appellant had “provided the court with no information about any written late-claim
application . . . .” The trial court found that, based on the documents that were the
subject of respondents’ request for judicial notice, appellant could not amend his
complaint to show he presented a timely claim. Additionally, the court found that
appellant’s allegations failed to state a recognized cause of action. Among other things,
the court noted that Dr. Dickson’s allegedly false report would be privileged under
section 47 of the California Civil Code.
       The trial court denied appellant’s motion for reconsideration, and the present
appeal followed.
                                       DISCUSSION
       “ ‘On appeal from an order of dismissal after an order sustaining a demurrer, our
standard of review is de novo, i.e., we exercise our independent judgment about whether
the complaint states a cause of action as a matter of law.’ ” (Los Altos El Granada
Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) Where the trial court has
sustained a demurrer 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


                                               2
affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the
plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; accord Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1126.)
       The “failure to allege facts demonstrating or excusing compliance with the
claim presentation requirement [of the 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.) In that instance, neither can a claim be asserted
against a public employee for injury resulting from an act in the scope of his or her
employment. (Fisher v. Pickens (1990) 225 Cal.App.3d 708, 718.) Appellant has not
shown he can amend his complaint to allege compliance with the claim presentation
requirements of the Claims Act, which requires that all claims for money or damages
against a public entity be presented to the public entity and rejected before initiation of a
lawsuit. (State of California, at p. 1239; Sofranek v. County of Merced (2007) 146
Cal.App.4th 1238, 1246.)
       One requirement the trial court focused upon is the requirement that a claimant
pay a fee or obtain a fee waiver before a claim can be considered presented. In particular,
Government Code section 911.2, subdivision (b), provides, “[f]or purposes of
determining whether a claim was commenced within the period provided by law, the date
the claim was presented to the Department of General Services is” either the date the
claim was submitted with a $25 filing fee; the date the claim was submitted with an
affidavit requesting a fee waiver that is ultimately granted; or the date the claim was
submitted with an affidavit requesting a fee waiver that is ultimately denied, if the fee is
promptly paid thereafter. The trial court’s order sustaining the demurrer points out that
the judicially noticed documents show appellant did not pay the $25 fee or obtain a
waiver. Absent payment of the fee or grant of a waiver request, appellant’s claim was
never “presented” within the meaning of the Claims Act and a lawsuit could not be
initiated. On appeal, appellant does not contend he can amend his complaint to allege
payment of the fee or grant of a fee waiver. Accordingly, the trial court properly
sustained the demurrer.


                                              3
       Because appellant has not shown he can amend his complaint to allege his claim
was “presented” within the meaning of the Claims Act, we need not address respondents’
additional contentions that any claim presented was untimely and that appellant failed to
await a decision on his claim before filing his lawsuit. Neither need we address the trial
court’s additional ground that appellant’s allegations failed to state a cause of action.
                                       DISPOSITION
       The trial court’s judgment is affirmed. Costs on appeal are awarded to
respondents.




                                              4
                    SIMONS, Acting P.J.




We concur.




NEEDHAM, J.




BRUINIERS, J.




(A143941)



                5
6
