Brian McMahon v. A.H. VOSS COMPANY, et al.

(Spring Street Courthouse: Dept. 14) August 26, 2026 DEPARTMENT 14 LAW AND MOTION RULINGS

STATE OF CALIFORNIA¿ ¿ FOR THE COUNTY OF LOS ANGELES DEPARTMENT 14 ¿ ¿ BRIAN MCMAHON, Plaintiffs,¿ v. A.H. VOSS COMPANY, et al. Defendants.¿¿ | Case No. 26STCV16012 ¿¿¿¿ Hearing Date: August 26, 2026 Time: 9:00 a.m. ¿ [TENTATIVE] ORDER RE: ¿ DEFENDANT MOULTON NIGUEL WATER DISTRICT'S DEMURRER AND MOTION TO STRIKE | I.

Background

On May 19, 2026, Plaintiff Brian McMahon filed his complaint for wrongful death and survival, alleging his wife, Decedent Wendy McMahon, died of malignant mesothelioma on November 26, 2025. Plaintiff alleges that Decedent developed mesothelioma as a result of exposure to asbestos and asbestos-contaminated products. Plaintiff alleges Decedent was exposed to asbestos when he unknowingly brought asbestos home on his clothing after working with piping, heavy machinery, and automotive repair products.

Plaintiff also alleges Decedent was exposed to asbestos when she used asbestos-contaminated talcum powder products. On July 16, 2026, Defendant Mouton Niguel Water District ("District") demurred to and moved to strike portions of Plaintiff's complaint. District argues that Plaintiff failed to comply with the Government Claims Act and failed to state a cause of action against District. District also moves to strike Plaintiff's demand for punitive damages. On August 13, 2026, Plaintiff opposed the demurrer, arguing the complaint sets for sufficient facts supporting their claims against District.

Alternatively, Plaintiff requests leave to file a First Amended Complaint. Plaintiff filed a non-opposition to the demand for punitive damages. On August 19, 2026, District replied, arguing that Plaintiff's

government claim was not timely presented and that the complaint fails to plead facts establishing District's liability. Plaintiff failed to comply with the Government Tort Claims Act by prematurely filing his complaint against District. The demurrer is sustained without leave to amend. II.

Discussion

A.

Legal Standard

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿"A demurrer tests the pleading alone, and not the evidence or facts alleged." (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint's properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v.

Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, "[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend." (Youngman v.

Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) B. Analysis 1. Demurrer District demurs to Plaintiff's complaint on the grounds that Plaintiff failed to allege compliance with the Government Claims Act. Government Code section 945.4 requires that before suing a public entity, a claimant must timely submit a written claim. (Gov. Code, Sec. 945.4.) A claimant may not bring a suit for money or damages against the public entity until the public entity has either acted upon the claim or rejected it. (Id.)

The public entity is required to act upon written claims within 45 days of receipt. (Gov. Code, Sec. 912.4, subd. (a).) In other words, claimants must wait 45 days after presenting a claim to sue a public entity unless the public entity acts upon the complaint or rejects it sooner. (See Harland v. City of West Hollywood (2026) 120 Cal.App.5th 1166, 1172.) Submission of a government claim is a precondition to a tort action against a public entity and "failure to allege facts demonstrating or excusing compliance with the requirement subjects a complaint to general demurrer for failure to state a cause of action." (State of California v.

Superior Court (2004) 32 Cal.4th 1234, 1240.) "Where there has been an attempt to comply [with the

claims statute] but the compliance is defective, the test of substantial compliance controls. Under this test, the court must ask whether sufficient information is disclosed on the face of the filed claim 'to reasonably enable the public entity to make an adequate investigation of the merits of the claim and settle it without the expense of a lawsuit.'" (Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal.App.3d 183, 188.) There is a twofold test for substantial compliance: Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance?" (Id.) Here, the relevant timeline of events is as follows: 1. On May 19, 2026, Plaintiff filed his complaint against District.

2. On May 22, 2026, Plaintiff submitted his government claim to District.

3. On June 11, 2026, District rejected Plaintiff's claim.

4. On June 16, 2026, Plaintiff served District with the complaint.

5. On July 16, 2026, District filed its demurrer. District demurs to the complaint on the grounds that "the Complaint is completely silent on whether Plaintiff has filed a Government Code claim, if it was timely filed, that the filed claim met all requirements of the Government Code, and whether the claim was rejected and/or the statutory time period passed, allowing Plaintiff to file a lawsuit." (Motion at p. 7.) Plaintiff does not dispute that the complaint contains no facts that Plaintiff complied with the Government Claims Act.

Plaintiff argues that "a claim was timely presented to Moulton and Moulton rejected it. Moulton was subsequently served with the Plaintiff's Summons and Complaint after its rejection of Plaintiff's claim. While Plaintiff requests that the demurrer on this ground be overruled; at most the Court should grant leave to amend the Complaint so that Plaintiff can cure the defect." (Opp. at p. 4.) Plaintiff provides copies of his government claim, District's rejection of the claim, and a proposed First Amended Complaint alleging compliance with the government claims requirement. (Plaintiff's Index of Exhibits at Exhs.

B, D, E.) Plaintiff's complaint is subject to a general demurrer as to District because Plaintiff failed to allege that he complied with the Government Claims Act. Plaintiff also failed to comply with Government Code section 945.4 because he filed this action before filing his government claim. Plaintiff filed his complaint on May 19, 2026 and did not file his government claim until May 22, 2026, after he had already filed the complaint. Thus, even if Plaintiff amended the complaint to state that he complied with the Government Claims Act, Plaintiff's claims against District are barred because he failed to submit a claim before filing this suit in violation of Government Code section 945.4.

Plaintiff argues that the court should grant leave to amend to allow him to cure the defects in the complaint because the defects are not fatal to his claims. Plaintiff cites Snipes v. City of

Bakersfield (1983) 145 Cal.App.3d 861 to support this argument. However, Snipes involved a claim under the Fair Employment and Housing Act ("FEHA"), which the Court of Appeal found exempted actions from Government Claims Act requirements (formerly the Tort Claims Act). (Snipes, supra, 145 Cal.App.3d at p. 868.) This case does not involve FEHA claims and there is no law exempting Plaintiff from the Government Claims Acts requirements. Plaintiff fails to address the fact that he filed this action without waiting the 45-day waiting period required by Government Code section 945.4.

As District points out in the moving papers and reply, amendment would not change the fact that Plaintiff filed this lawsuit before filing a government claim. District cites Harland v. City of West Hollywood (2026) 120 Cal.App.5th 1166 to support this argument. In Harland, a plaintiff filed her lawsuit against the City of West Hollywood two days after submitting a government claim. (Harland, supra, 120 Cal.App.5th at p. 1169.) The plaintiff then dismissed the action and filed a second identical lawsuit against the city four months after the dismissal. (Id.)

The trial court found that the plaintiff's initial failure to comply with Government Code section 945.4 was a complete bar to the action and sustained the city's demurrer without leave to amend. (Id.) The Court of Appeal affirmed, finding that the premature lawsuit contravened the act. (Id. at p.1171.) The court in Harland discussed Malear v. State of California (2023) 89 Cal.App.5th 213, 223, where the Court of Appeal identified a narrow exception to Government Code section 945.4. There, a plaintiff, Malear, made a government claim against a group of public entities and filed a lawsuit against those public entities 12 days later. (Malear, supra, 89 Cal.App.5th at p. 219.)

Two days after filing the complaint, the public entities rejected the claim. (Id.) Three months after the claim was rejected, Malear filed a first amended complaint identical to the original complaint except that it included new allegations that Malear complied with claim presentation requirements. (Id.) Malear then served the public entities with the first amended complaint. (Id.) The Court of Appeal explained that Malear substantially complied with the claim presentation requirements and fulfilled the statutory objectives of the claim presentation requirements because the lawsuit "did not begin in earnest until defendants were served with Malear's first amended complaint, at which point defendants' investigation and consideration of Malear's claim was already complete." (Id.)

The Court of Appeal emphasized that the decision was narrow and held "when a lawsuit is prematurely filed before the actual or deemed denial of a government claim, application of the substantial compliance doctrine is generally appropriate if the original complaint is not served before an amended complaint alleging the requisite denial of a government claim is filed in compliance with Code of Civil Procedure section 472." (Id.) Malear cited Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th 211, another case examining Government Code section 945.4.

There, the plaintiff, Lowry, filed a government claim the same day he filed his complaint. (Lowry, supra, 56 Cal.App.5th at p. 219.) The Court of Appeal noted that although older authority dealing with premature filing found compliance with the claim presentation requirement, those cases were inconsistent with more recent decisions of the California Supreme Court. (Id.) Specifically, the California Supreme Court held in DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983 that plaintiffs with claims against

public entities are required to satisfy the express language of the Government Claims Act, reasoning that the Act's intent was not to expand the rights of plaintiffs against government entities but to "'confine potential governmental liability to rigidly delineated circumstances.'" (Lowry, supra, 56 Cal.App.5th at p. 220, quoting DiCampli, supra, 55 Cal.4th at p. 991.) The Court of Appeal held that Lowry's claim was prematurely filed and denied leave to amend, explaining that "the lawsuit is precluded because it was not preceded by rejection of a claim.

Lowry's noncompliance with the Act cannot be cured by amending the complaint to allege he complied." (Id. at p. 221.) Here, as in Lowry, Plaintiff's proposed first amended complaint would not cure Plaintiff's noncompliance with Government Code section 945.4. Additionally, the facts presented here do not fit the narrow exception carved out in Malear because this is not a situation where a defendant was served with an amended complaint alleging compliance with the claims presentation requirement for the first time after the 45-day waiting period had already passed.

Plaintiff here has already served District with the complaint and caused District to incur litigation expenses, defeating the statutory objectives of the claim presentation requirements. Plaintiff's premature filing therefore precludes Plaintiff's claims against District. Leave to amend is denied. The court declines to reach District's arguments regarding sovereign immunity and sufficiency.

2. Motion to Strike District moves to strike Plaintiff's demand for punitive damages. However, Plaintiff filed a non-opposition to the motion to strike. Accordingly, the motion is granted without leave to amend. III.

Conclusion

District's demurrer is sustained without leave to amend. The motion to strike is granted without leave to amend. Plaintiff's action against Defendant Moulton Niguel Water district is dismissed. District to give notice. Case Number: 26STCV17591 Hearing Date: August 26, 2026 Dept: 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA¿ ¿ FOR THE COUNTY OF LOS ANGELES DEPARTMENT 14 ¿ ¿ CAROLE E. GORDON, Plaintiff,¿ v. ALTICOR INC., et al., ¿ Defendants.¿¿ |