Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC386857, Jane L. Johnson, Judge. Affirmed.
Errol Daly, in pro. per., for Plaintiff and Appellant.
Joseph L. Stark for Defendants and Respondents.
WILLHITE, J.
Plaintiff Errol Daly sued the Housing Authority of the City of Los Angeles (Housing Authority) and various individual defendants for, inter alia, failing to comply with the notice requirements of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5, et seq.; Proposition 65 in the November 4, 1986 general election). The trial court sustained the demurrers filed by the Housing Authority and certain of the individual defendants without leave to amend, and dismissed the action as to them. Daly appeals, and we affirm.
The relevant individual defendants are two former employees of the Housing Authority, Frank Plimier (a former supervisor) and Donald Smith (the former Executive Director), two attorneys employed by the Los Angeles City Attorney’s Office, Dov Lesel and Neil Blumenkopf.
BACKGROUND
A. Prior Litigation
This case is the latest in a series stemming from Daly’s 1991 contract to perform construction work for the Housing Authority. Unpublished decisions in three prior appeals summarize the prior litigation.
The three prior appeals are B164124, B194534, and D044363. We take judicial notice of the unpublished opinions in these cases.
1. The Breach of Contract Action
In 1991, Daly contracted with the Housing Authority to perform construction work on a housing project. Another contractor on the project sued the Housing Authority for breach of contract. The Housing Authority filed a cross-complaint against Daly alleging, inter alia, breach of contract and apportionment of fault. Daly in turn filed a cross-complaint against the Housing Authority for damages incurred during the project.
In a 1996 jury trial, Daly was awarded more than $550,000 in damages against the Housing Authority. The Housing Authority appealed the subsequent judgment, but the judgment was affirmed.
2. The Interpleader Action
Meanwhile, after being relieved by Daly in a dispute over attorney fees, Daly’s attorneys, the Ramseyer firm, served a lien on the Housing Authority for unpaid fees of more than $340,000.
In 1999, following the decision affirming Daly’s damage award in the breach of contract action, the Housing Authority filed a complaint in interpleader against Daly (now representing himself), the Ramseyer firm, and other lien holders, seeking to deposit more than $688,000 (which included interest) in satisfaction of the judgment.
The Ramseyer firm filed a cross-complaint against Daly and the other lien holders. As against Daly, the cross-complaint alleged (as here relevant) a quantum meruit claim for services performed.
In 2000, over Daly’s objection, the trial court in the interpleader action discharged the Housing Authority and awarded it costs and attorney fees. Daly later entered a partial settlement with the lien holders permitting the release of certain of the interpleaded funds.
Over Daly’s objection, the trial court, sitting without a jury, tried the Ramseyer firm’s quantum meruit claim and found in favor the Ramseyer firm in the sum of more than $320,000. Daly appealed the judgment in the interpleader action, and in 2004 the judgment in favor of the Ramseyer firm was reversed on the ground that the firm did not have a valid lien on the judgment proceeds and Daly was entitled to a jury trial on the quantum meruit claim. (B164124, filed December 10, 2004.)
3. Professional Negligence Action Against the Ramseyer Firm
Besides appealing the interpleader judgment, Daly filed a new action against the Ramseyer firm alleging various causes of action relating to professional negligence. Following a change of venue from Los Angeles to San Diego Superior Court, the Ramseyer firm’s demurrer was sustained without leave to amend and the action was dismissed. Daly appealed, and the judgment was reversed as to all but one of Daly’s claims. (D044363, filed November 17, 2005.)
4. Joint Trial in the Interpleader Action and the Professional Negligence Action Against the Ramseyer Firm
Following the reversal of the judgments in favor of the Ramseyer firm in the interpleader and professional negligence actions, the cases were consolidated for jury trial in Los Angeles Superior Court. A jury returned a verdict for the Ramseyer firm in both cases, awarding the firm more than $459,000 on its quantum meruit claim against Daly. Daly appealed from the judgment, challenging both the jury verdict and the trial court’s previous discharge of the Housing Authority in the interpleader action. The Court of Appeal affirmed the judgment in an opinion filed May 21, 2008. (B194534.)
B. The Present Complaint
On March 7, 2008, Daly, representing himself, filed the complaint in the present case. His claims appear to derive from his prior construction work for the Housing Authority and the prior litigation.
The named defendants who are parties to this appeal fall into three groups: (1) the Housing Authority; (2) two former employees of the Housing Authority, Frank Plimier (a former supervisor) and Donald Smith (the former Executive Director); and (3) two attorneys employed by the Los Angeles City Attorney’s Office, Dov Lesel and Neil Blumenkopf. We sometimes refer to defendants Plimier, Smith, Lesel, and Blumenkopf as the individual defendants.
Daly’s complaint also names other current and former employees of the Housing Authority, identified by the complaint as Raymond E. Hege (the former Modernization Director), Jorge Rosales (the current Modernization Director), and William Davis (a Program Analyst). Other defendants include Daly’s former attorneys, the Ramseyer firm (in particular, Craig Ramseyer, David Kuhlman, R. Timothy Ireland, and David Johnson); and the Housing Authority’s former attorneys in the breach of contract action, the law firm of Mallory & Brown-Curtis (in particular, George Mallory and Nedra Austin). None of these defendants is a party to the instant appeal.
Daly’s first cause of action is entitled “Failure to Warn [Health & Saf. Code, § 25249.7].” Although the complaint contains many irrelevant allegations, the core of the claim is that the Housing Authority, in violation of the Safe Drinking Water and Toxic Enforcement Act of 1986, failed to warn him about the presence of lead-based paint in the structures on which his crew worked pursuant to his 1991 construction contract. The relevant allegations are: (1) in 1991 he contracted with the Housing Authority to perform work on its Aliso Village project; (2) beginning in 1992, he and his crew demolished 198 of 252 clerestories of the project before the work was stopped in June 1993 because of a potential health hazard caused by the presence of lead-based paint; (3) in March 2007, Daly had surgery in which a malignant tumor was removed from his colon; and (4) in October 2007, he served a notice under section 25249.6 on the named defendants and the Attorney General regarding defendants’ failure to warn of the existence of a known toxic chemical, lead-based paint, in the area where he and his crew worked. In the body of the complaint, he asks for declaratory and injunctive relief. In his prayer, he seeks statutory penalties under section 25249.7, et seq.
All undesignated section references are to the Health and Safety Code.
Daly’s second cause of action is entitled in relevant part “Conspiracy/Civil Rico.” The basis of the claim appears to be the allegation that “[i]n October 1999, after the Appellate Court [in the breach of contract action] found against [the Housing Authority], instead of paying [Daly’s damage] award..., at the request of [Daly’s] former attorneys [the Ramseyer firm], [the Housing Authority] filed an interpleader action and deposited the... judgment with the court.” In his prayer, he seeks compensatory and punitive damages and statutory penalties.
Daly’s third cause of action is entitled “Conspiracy Injury Based on Breach of Contract, Interference with Right to Practice Profession.” The claim appears to be based on Daly’s allegations that a lien levied against his contractor’s license in 1995 by the Employment Development Department and tax liens levied against him by the IRS interfered with his ability to earn a living as a contractor. Daly alleges that had the Housing Authority complied with a request he made in 1995 to release a percentage of the retention funds on the Aliso Village project, his “ability to continue practicing and earning a living in his desired practiced profession would not have been interfered with.” In his prayer, Daly seeks “penalties for damages for injuries based on Conspiracy-Breach of Contract-Interference with Right to Practice Profession,” and cites Civil Code section 3294 relating to punitive damages.
Notice of Related Case and Peremptory Challenge
On the same date he filed the present complaint in Los Angeles Superior Court, Daly also filed a Notice of Related Case identifying the breach of contract case, the interpleader case, and the professional negligence case against the Ramseyer firm as related cases. On March 27, 2008, the present case was assigned to the judge who had handled the joint trial in the interpleader and professional negligence cases. Following a June 20, 2008 order to show cause regarding Daly’s failure to file proof of service of the complaint, Daly filed a peremptory challenge to the judge under Code of Civil Procedure section 170.6, subdivision (a)(1). On July 1, 2008 the court denied the challenge.
The Demurrers
The Housing Authority filed a demurrer to the complaint. As here relevant, the Housing Authority argued that to the extent it sought monetary damages, the entire complaint was barred by Daly’s failure to comply with the Government Claims Act (Gov. Code § 900, et seq.) The Housing Authority also argued: (1) the first cause of action, “Failure to Warn [Health & Saf. Code, § 25249.7],” failed because the Safe Drinking Water and Toxic Enforcement Act of 1986 does not apply to public entities; (2) the second cause of action, “Conspiracy/Civil Rico,” was barred by the doctrine of res judicata based on the final judgment in the interpleader action and the failure to allege any predicate act qualifying under the Rico statute, 18 United States Code section 1961; and (3) the third cause of action, “Conspiracy Injury Based on Breach of Contract, Interference with Right to Practice Profession,” was barred by the statute of limitations and by res judicata.
In City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734, the California Supreme Court held that Government Code section 905, which “requires that ‘all claims for money or damages against local public agencies’ be presented to the responsible public entity before a lawsuit is filed,” applies to breach of contract claims as well as tort claims. The court “adopt[ed] the practice of referring to the claims statutes as the ‘Government Claims Act,’ to avoid the confusion engendered by the informal short title ‘Tort Claims Act.’” (Ibid.) We follow that practice.
The individual defendants -- Neil Blumenkopf, Dov Lesel, Frank Plimier, and Donald Smith – joined in the Housing Authority’s demurrer. They also demurred on the ground that the complaint failed to contain any material allegation mentioning them.
Daly filed an opposition to the demurrers on largely irrelevant grounds. With respect to the argument that he failed to comply with the Government Claims Act, he argued that he complied on August 24, 1995, in the breach of contract action by filing a negligence claim against the Housing Authority in an amended version of his cross-complaint. At the hearing on the demurrers, Daly argued that the facts underlying his complaint “transpired over a period from 1992 on through to 1994.” He explained: “The reason why I’m back here is because the [cross]-complaint that I filed back in 1995... include[d] the negligence cause of action, which was dismissed without prejudice.... The matter that went to trial didn’t have [anything] to do with [that claim].... In the meantime, after the dismissal of the negligence cause of action, I later found out that I had contracted cancer.... And if I’m right, that give[s] me... the opportunity of bringing the negligence cause of action back.”
The trial court sustained the demurrers without leave to amend. The court construed the complaint to seek only damages, and concluded that because Daly failed to comply with the Government Claims Act, his complaint was barred. The court also concluded that the first cause of action was barred because the Safe Drinking Water and Toxic Enforcement Act of 1986 does not apply to public entities. Further, the court found that to the extent Daly’s claims were for breach of contract, the claims were barred by the statute of limitations and res judicata. Finally, the court ruled that the complaint failed to contain any allegations regarding the individual defendants. The court thereafter dismissed the action.
DISCUSSION
I. Peremptory Challenge
Daly contends that the trial court erred in denying his peremptory challenge under Code of Civil Procedure section 170.6. However, the claim is not cognizable on appeal. Code of Civil Procedure section 170.3, subdivision (d), provides: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal.” As the California Supreme Court has “repeatedly held, the statute means what is says: Code of Civil Procedure section 170.3, subdivision (d) provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory.” (People v. Panah (2005) 35 Cal.4th 395, 444.) Thus, Daly’s challenge to the trial court’s denial of his peremptory challenge cannot be considered on appeal.
Daly contends that the trial court assigned the case to the judge he challenged based on an erroneous determination that the current case is “related” to the prior breach of contract and interpleader actions under rule 3.300, et seq., California Rules of Court. Of course, Daly is the one who filed the Notice of Related case that resulted in the case assignment. In any event, this court will not interfere in the superior court’s internal procedure for the assignment of cases.
II. Demurrers
Daly contends that the trial court erred in sustaining, without leave to amend, the demurrers of the Housing Authority and the individual defendants. We disagree. We need discuss only two grounds on which the trial court relied: the inapplicability of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5, et seq.) to the Housing Authority, and Daly’s failure to comply with the Government Claims Act.
A. First Cause of Action -- Inapplicability of the Safe Drinking Water and Toxic Enforcement Act of 1986
As we have discussed, Daly’s first cause of action, entitled “Failure to Warn [Health & Saf. Code, § 25249.7],” alleges in substance that the Housing Authority did not warn him about the presence of lead-based paint in the structures on which his crew worked. Daly seeks injunctive and declaratory relief and statutory penalties. However, as the Housing Authority argued in its demurrer, and the trial court ruled, the Housing Authority is not subject to suit under section 25249.7.
As here relevant, section 25249.7, subdivision (a), authorizes an action for injunctive relief against “[a]ny person that violates or threatens to violate Section 25249.5 or 25249.6,” and section 25249.7, subdivision (b), authorizes civil penalties against “[a]ny person who has violated” those sections. The action may be brought by the Attorney General, any district attorney, certain city attorneys, and, if specified conditions are met, “any person in the public interest.” (§ 25249.7, subd. (d).)
By its express terms, a predicate to an action under section 25249.7 is a person’s violation or threatened violation of either section 25249.5 or 25249.6. Sections 25249.5 and 25249.6 limit the class of persons who can violate their provisions; in substance, they prohibit conduct exposing others to toxic chemicals when the conduct is performed by a “person in the course of doing business.” Section 25249.5 provides: “No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water, notwithstanding any other provision or authorization of law except as provided in Section 25249.9.” (Italics added.) Similarly, section 25249.6 provides: “No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.” (Italics added.)
Section 25249.11, subdivision (b), provides that the term “‘[p]erson in the course of doing business’ does not include... any city, county, or district or any department or agency thereof or the state or any department or agency thereof.” The Housing Authority is a local public agency created by the City of Los Angeles. (See Housing Authority v. City of L.A. (1952) 38 Cal.2d 853, 861 [Housing Authority was created by Los Angeles City Council “to function as the creature... of the state legislative action,” the Housing Authorities Law, § 34200, et seq.]; see also § 34312.3, subd. (f) [“the Legislature declares [] that housing authorities are the local entities with primary responsibility for providing housing for low-income and very low income households within their jurisdictions”].) Thus, as an agency of the City of Los Angeles, the Housing Authority is not a “person in the course of doing business” within the meaning of section 25249.11, and cannot violate sections 25249.5 or 25249.6. Because the Housing Authority is excluded from sections 25249.5 or 25249.6, it cannot be sued under section 25249.7. Daly cannot cure this defect, and therefore the trial court properly sustained the Housing Authority’s demurrer to the first cause of action without leave to amend.
Daly appears to contend that the Housing Authority is subject to suit based on section 50710.5, which provides in relevant part: “(a) Notwithstanding any other provision of law, no housing authority, housing authority commissioner, housing authority officer, or housing authority employee, acting in good faith, shall be civilly liable for any injury caused by the presence of lead-based paint, prior to January 1, 1989, in or upon any housing units or related facilities owned by an agency of the state and operated by the housing authority pursuant to a contract authorized by Section 50710 by and between the housing authority and the department. [¶] (b) Subdivision (a) does not, however, limit or expand any liability which the state or the United States may have under other laws on account of an injury specified in this subdivision. [¶] (c) Subdivision (a) does not limit or expand any liability which arose prior to January 1, 1988.”
Daly asserts, as best we understand, that because section 50710.5 provides the Housing Authority with immunity from suit for the presence of lead-based paint only for the time period before January 1, 1989, it is subject to suit under section 25249.7 for its later alleged failure to warn him of the presence of lead-based paint when he engaged in work for the Housing Authority beginning in 1992. However, section 50710.5 has nothing to do with the scope of liability imposed by section 25249.7; the latter applies only to violations of two specific statutes (sections 25249.5 and 25249.6), neither of which the Housing Authority is capable of violating.
Daly also appears to contend that the Housing Authority may be liable for failure to warn of the presence of lead-based paint under the Residential Lead-Based Paint Hazard Reduction Act, 42 United States Code section 4851, et seq. However, the disclosure requirements imposed by that legislation and federal regulations adopted under it apply only to contracts for the sale or lease of residential property. (42 U.S.C. § 4852d, subds. (a)(1), (a)(2).) Daly’s claim against the Housing Authority does not arise in that context.
The trial court also properly sustained the demurrers of the individual defendants to the second cause of action without leave to amend. The claim fails to contain any material allegations as to them, and Daly makes no showing that he could amend to add such allegations. Moreover, if the individual defendants could be liable at all under the allegations of the complaint, it would be based on vicarious liability derived the Housing Authority’s failure to warn under sections 25249.5 or 25249.6. But because the Housing Authority cannot violate those sections, the individual defendants cannot be vicariously liable for any such violations.
B. Second and Third Causes of Action – Failure to Comply with the Government Claims Act
Daly’s second and third causes of action against the Housing Authority --“Conspiracy/Civil Rico” and “Conspiracy Injury Based on Breach of Contract, Interference with Right to Practice Profession” – are fatally flawed based on Daly’s failure to comply with the Government Claims Act.
To the extent Daly seeks monetary penalties in his first cause of action, his failure to comply with the Government Claims Act also bars that claim. Indeed, his requests for declaratory and injunctive relief in that claim are illusory, given that the acts in dispute occurred in the early 1990’s.
Government Code “[s]ection 905 requires the presentation of ‘all claims for money or damagesagainst local public entities,’ subject to exceptions not relevant here. Claims for personal injury and property damage must be presented within six months after accrual; all other claims must be presented within a year. ([Gov. Code] § 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....’ ([Gov. Code] § 945.4.) ‘Thus, under 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.’ [Citation.]” (City of Stockton v. Superior Court, supra, 42 Cal.4th at pp. 737-738, italics added.) The claim presentation requirement applies to both tort and contract claims. (Id. at p. 734.)
Here, Daly’s second and third causes of action seek “money or damages,” and are made against a local public entity, the Housing Authority. In his complaint, Daly failed to allege compliance with the Government Claims Act. In his written opposition to the demurrers, he argued that he complied by “fil[ing] a claim for Negligence in his amended cross-complaint” against the Housing Authority in the breach of contract action. However, the filing of a negligence claim in his cross-complaint in the breach of contract action does not constitute compliance with the requirement of presenting a written claim to the Housing Authority under the Government Claims Act before filing suit. And even if it did, the amended cross-complaint in the breach of contract action was filed in August 1995 (a copy was appended to the complaint in the instant case). Construing the cross-complaint as a properly presented government claim, and assuming the Housing Authority failed to give notice of a denial of the claim, the limitation period for filing suit was two years after accrual of the cause of action. (Gov. Code, § 945.6; see Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2008) § 6.40, p. 303.) Obviously, Daly’s purported “negligence” claim accrued no later than August 1995, when he included it in his amended cross-complaint in the breach of contract action. But Daly filed the instant complaint in March 2008, some 12 years after the accrual of the “negligence” cause of action, and some 10 years after the expiration of the two-year limitations period following accrual. Because Daly’s failure to comply with the Government Claims Act cannot be cured, the trial court properly sustained the demurrer to the second and third causes of action against the Housing Authority without leave to amend.
On appeal, although the argument is not entirely clear, Daly asserts that on May 24, 1995, he “filed a tort claim with Respondent [the Housing Authority] for $321,734.00 in damages suffered as a result of the negligent conduct in Respondent Agents’ administration of the contract.” Rather than responding to the “tort claim,” the Housing Authority, which had been sued by another contractor in the breach of contract action, filed a cross-complaint against Daly. According to Daly, “[o]n or about August 4, 1995, [he] perfected his tort claim by filing a [cross-]complaint against Respondent [the Housing Authority],” which he later amended to include a claim for negligence based on exposure to lead-based paint. Daly contends: “With [Daly’s] filing of his tort claim against Respondent on May 24, 1995, and Respondent’s refusal to acknowledge the claim, as required by Government Code Section 945.6, Respondent waived any defenses” based on insufficiencies or omissions in the claim under Government Code sections 910.8, 911, and 911.3.
Whatever else might be said about this argument, it fails because, as we have explained, even if Daly is deemed to have presented a proper claim to the Housing Authority in 1995, he failed to bring the present action within the maximum time permitted by the Government Claims Act – two years after accrual of the cause of action (assuming that the Housing Authority failed to give notice of rejecting a properly presented claim). (Gov. Code, § 945.6.)
The court also properly sustained the demurrers of the individual defendants without leave to amend. The complaint contains no material allegations against any of the individual defendants, and Daly makes no showing that he could amend to state any such allegations. Further, to the extent the individual defendants could be liable at all based on the allegations of the complaint, it would be in their capacity as public employees – defendants Frank Plimier and Donald Smith as former employees of the Housing Authority, and defendants Dov Lesel and Neil Blumenkopf as employees of the Los Angeles City Attorney’s Office. But Daly’s failure to comply with the Government Claims Act with respect to the Housing Authority bars any claim against defendants Plimier and Smith as former employees of the Housing Authority. (Gov. Code, § 950.2 [“Except as provided in Section 950.4 [not here applicable], 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” by the Government Claims Act].) And Daly never purported to comply with the Government Claims Act with respect to defendants Lesel and Blumenkopf by filing a claim with the public entity that employed them, the Los Angeles City Attorney’s Office. Hence, the trial court properly sustained the demurrers of the individual defendants to the second and third causes of action without leave to amend.
DISPOSITION
The judgment is affirmed. The Housing Authority and the individual defendants shall recover their costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.