The opinion
Filed 12/2/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ANDREW BLACK, B339694
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCV36213)
v.
LOS ANGELES COUNTY
METROPOLITAN
TRANSPORTATION AUTHORITY
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Randolph M. Hammock, Judge. Affirmed in
part and reversed in part.
Law Offices of William B. Hanley and William B. Hanley
for Plaintiff and Appellant.
Peterson, Bradford, Burkwitz, Gregorio, Burkwitz, & Su
and Avi Burkwitz for Defendants and Respondents.
____________________________
Plaintiff Andrew Black appeals from the judgment after the
trial court sustained a demurrer in favor of defendants
Los Angeles County Metropolitan Transportation Authority
(MTA) and Public Transportation Services Corporation (PTSC).
The trial court found plaintiff had failed to allege he had
complied with the Government Claims Act (Gov. Code, § 810
et. seq.; GCA), which requires plaintiffs to provide written claims
for damages to public entities before filing suit against those
entities.
On appeal, plaintiff does not challenge the judgment in
favor of MTA. As to PTSC, plaintiff argues: 1) PTSC is not a
public entity entitled to a prelitigation claim under the GCA; and
2) assuming PTSC is a public entity, plaintiff is excused from the
GCA’s claims presentation requirement because PTSC did not
register on the Registry of Public Agencies.
We disagree with plaintiff that PTSC is not a public entity
for purposes of the GCA’s claims presentation requirement. MTA
created PTSC, a nonprofit public benefit corporation, to provide
retirement benefits to workers who otherwise would be ineligible
for those benefits if employed directly by MTA. PTSC thus
manages and supplies the workers who carry out MTA’s mission,
and its powers are limited to those MTA authorizes. Under
applicable case law, the circumstances of PTSC’s creation and its
relationship with MTA establish PTSC’s public entity status.
We agree with plaintiff, however, that PTSC’s alleged
failure to register on the Registry of Public Agencies would
excuse plaintiff’s noncompliance with the GCA. Although
defendants have provided evidence PTSC is on the registry
maintained by the Secretary of State, they have yet to
2
demonstrate PTSC also has registered with the clerks of each
county in which PTSC maintains an office, as is required by
statute. Plaintiff therefore is entitled to amend his complaint to
allege PTSC’s failure to register.
Accordingly, we affirm the judgment in favor of MTA, and
reverse the judgment in favor of PTSC.
BACKGROUND
Plaintiff filed a complaint against defendants alleging
wrongful termination in violation of public policy and violation of
Labor Code section 970. After answering the complaint,
defendants filed a motion for judgment on the pleadings asserting
that plaintiff had failed to plead compliance with the claims
presentation requirements of the GCA. Defendants argued that
requirement applies because MTA is a “public entity created
pursuant to the County Transportation Commissions Act,” and
PTSC is both “a public corporation” and “a public agency.”
Alternatively, defendants argued as public entities, they are
immune from common law liability for wrongful termination in
violation of public policy and also immune from causes of action
for misrepresentation under Labor Code section 970.
In his opposition, plaintiff conceded MTA is a public entity,
but argued PTSC, as a nonprofit public benefit corporation, is
distinct from a “public corporation” and therefore not protected
by the GCA.
The trial court granted the motion. The court agreed
plaintiff had not pleaded facts addressing the claims presentation
requirement, and indeed “apparently concede[d] he ha[d] not filed
a claim” under the GCA. The court found plaintiff also had
conceded MTA is a public entity. The court further found PTSC
is a “local public entity under the [GCA]” as “either a ‘public
3
corporation’ or ‘public agency.’ ” The court granted plaintiff leave
to amend. The court did not address defendants’ alternative
arguments that as public entities, they are immune from
plaintiff’s causes of action.
Plaintiff then filed his first amended complaint (FAC). The
FAC now asserted causes of action for wrongful termination and
Labor Code violations against PTSC only, alleging PTSC is not a
public entity and therefore the GCA is inapplicable to PTSC. The
FAC also added a new cause of action for breach of contract
against both defendants, with no allegations concerning the GCA.
Defendants filed a demurrer, again arguing plaintiff
had not pleaded compliance with the GCA, MTA is a
governmental entity, and as both a public agency and a public
corporation, PTSC is entitled to the protections of the GCA.
Defendants reasserted their alternative argument that as public
entities they are immune from plaintiff’s wrongful termination
and Labor Code section 970 causes of action. Defendants also
filed a motion to strike the new breach of contract cause of action,
which defendants contended was not within the scope of the trial
court’s order permitting amendment.
Plaintiff opposed the demurrer, arguing as he had before
that PTSC is not a public entity. He also argued, assuming
arguendo PTSC were a public entity, he was nonetheless excused
under Government Code section 946.4 from the claims
presentation requirement because “[t]here is no evidence [o]f
PTSC being listed on the Registry of Public Agencies” as required
by Government Code section 53051.
Plaintiff also opposed the motion to strike, arguing his
amendments were within the scope of the trial court’s prior order.
4
In reply, defendants argued, inter alia, that plaintiff’s
assertions concerning Government Code sections 946.4 and 53051
were procedurally improper for having been raised for the first
time in opposition to the demurrer rather than in the FAC.
Defendants further argued PTSC is an “organizational unit” of
MTA, and “a subdivision need not comply with” the registration
requirement of Government Code section 53051.
The trial court sustained the demurrer without leave to
amend. Citing its earlier ruling on the motion for judgment on
the pleadings, the court again found “each Defendant is a public
entity subject to the claim presentation requirements.” Quoting
the MTA’s administrative code, the court found PTSC, “ ‘[w]hen
serving as an organizational unit of the MTA, . . . is subject to all
governmental privileges and immunities enjoyed by the MTA . . .’
[Citation.]” Accordingly, the court found, “Plaintiff has provided
no authority requiring PTSC to register separately” under
Government Code section 53051. Even if PTSC were required to
register, “Plaintiff did not allege facts to support this contention
in his FAC, and instead, only raised it for the first time in his
opposition.” The court did not address defendants’ alternative
argument regarding public entity immunity from wrongful
termination and Labor Code section 970 causes of action. The
court ruled the motion to strike was moot.
The trial court entered judgment in favor of defendants.
Plaintiff timely appealed.
In responding to supplemental briefing we requested,
defendants asked us to take judicial notice of a “Statement of
Facts” for the “Roster of Public Agencies” submitted on behalf of
PTSC to the Secretary of State on August 3, 2000, as well as a
letter from the Secretary of State confirming filing of the
5
statement of facts as of August 7, 2000. We take judicial notice of
these documents, noting plaintiff’s objection to the request.1
(Evid. Code, §§ 452, subd. (c), 459, subd. (a).)
STANDARD OF REVIEW
“ ‘ “We independently review [a] ruling on a demurrer and
determine de novo whether the pleading alleges facts sufficient to
state a cause of action.” [Citation.] “[W]e accept as true the well-
pleaded allegations in [the] . . . complaint. ‘ “We treat the
demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law.
[Citation.]” ’ ” [Citation.] “ ‘We are not bound by the trial court’s
reasoning and may affirm the judgment if correct on any
theory.’ ” [Citation.]’ [Citation.]” (One Technologies, LLC v.
Franchise Tax Bd. (2023) 96 Cal.App.5th 748, 759 (One
Technologies).)
“We review the trial court’s decision not to grant leave to
amend for abuse of discretion. [Citation.] ‘ “[W]e must decide
whether there is a reasonable possibility the plaintiff could cure
the defect with an amendment. [Citation.] If we find that an
amendment could cure the defect, we conclude that the trial court
abused its discretion and we reverse; if not, no abuse of discretion
has occurred. [Citation.] The plaintiff has the burden of proving
that an amendment would cure the defect.” [Citations.]’
[Citation.]” (One Technologies, supra, 96 Cal.App.5th at p. 759.)
1 We deny as moot defendants’ request to take judicial
notice of PTSC’s articles of incorporation, because they already
are in the record on appeal, but grant their request to take
judicial notice of MTA’s resolution to establish PTSC. (Evid.
Code, §§ 452, subd. (b), 459, subd. (a).)
6
A plaintiff may assert a basis to amend for the first time on
appeal. (See Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 992
(Heshejin).)
DISCUSSION
“As a general rule, a plaintiff must present a public entity
with a timely written claim for damages before filing suit against
it.” (J.M. v. Huntington Beach Union High School Dist. (2017)
2 Cal.5th 648, 652; see Gov. Code,2 § 945.4.) “If a complaint
does not allege facts showing that a claim was timely made, or
that compliance with the claims statutes is excused, it is subject
to demurrer.” (J.M., at p. 652.)
On appeal, plaintiff does not dispute he did not submit a
written claim to either MTA or PTSC before filing suit. He also
does not dispute that MTA is a public entity subject to the claims
presentation requirement. Accordingly, plaintiff does not
challenge the trial court’s sustaining of the demurrer in favor of
MTA.
Plaintiff does challenge the sustaining of the demurrer in
favor of PTSC. As he did below, he raises two alternative
arguments. First, he argues PTSC is not a public entity to which
the claims presentation requirement applies. Second, he argues
to the extent PTSC is a public entity, plaintiff is excused from the
claims presentation requirement because PTSC has not
demonstrated it has complied with its obligation to register on
the Registry of Public Agencies.
As set forth below, we conclude PTSC is a public entity for
purposes of the GCA’s claims presentation requirement. Because
2 Unspecified statutory citations are to the Government
Code.
7
plaintiff did not allege compliance with or excuse from the claims
presentation requirement, his complaint was subject to demurrer.
Plaintiff, however, may amend his complaint to allege PTSC has
not fully complied with the registration requirement, thus
excusing him from the claims presentation requirement.
A. Background on PTSC
We begin with background on PTSC’s formation and its
relationship with MTA, as well as an appellate decision, Silver v.
Los Angeles County Metropolitan Transportation Authority (2000)
79 Cal.App.4th 338, 342 (Silver), that held PTSC is a public
entity entitled to contract with the California Public Employees’
Retirement System (PERS).
1. Formation of PTSC
The Legislature formed MTA in 1992 by merging the
Southern California Rapid Transit District (RTD) with the
Los Angeles County Transportation Commission (LACTC).
(Silver, supra, 79 Cal.App.4th at p. 342.) The Legislature
granted MTA authority to “determine its organizational
structure, which may include, but is not limited to, the
establishment of departments, divisions, subsidiary units, or
similar entities,” which the Legislature referred to as
“ ‘organizational unit[s].’ ” (Pub. Util. Code, § 130051.11,
subd. (a).) The Legislature further authorized the MTA to
“administratively delegate to an organizational unit . . . any
powers and duties it deems appropriate.” (Id., subd. (f).)
Before MTA’s formation, RTD employees participated in
Social Security, whereas LACTC employees participated in
PERS. (Silver, supra, 79 Cal.App.4th at pp. 342–343.) In an
effort “to provide a unified and cost-effective retirement plan for
8
its employees,” MTA “reached an understanding . . . with PERS,
the Social Security Administration . . . , and the [Internal
Revenue Service] that would have allowed all MTA employees an
individual election to opt out of Social Security and enroll in
PERS.” (Silver, supra, 79 Cal.App.4th at p. 343.) The employees’
unions resisted this plan, however, and “[a]s a result, the MTA
was unable to enter into a contract with PERS.” (Id. at pp. 343–
344.) Further, “PERS advised the MTA that the former LACTC
employees would not be permitted to remain in PERS
permanently unless substantially all of the MTA’s workforce was
also eligible to participate in PERS.” (Id. at p. 344.)
To resolve these dilemmas, MTA “decided to create a new
entity, the PTSC, to provide uninterrupted coverage to its
employees who participated in PERS as well as to provide its
other employees with the opportunity to obtain PERS retirement
benefits.” (Silver, supra, 79 Cal.App.4th at p. 344.) MTA’s board
thus formed PTSC, “a governmental nonprofit public benefit
corporation,” in 1996. (Ibid.) PTSC entered into a contract with
PERS to provide retirement benefits to employees transferred
from MTA to PTSC. (Ibid.) “Those employees were given the
option to elect among various retirement plans, and no MTA
employee was transferred to the PTSC or required to join PERS
or lose Social Security against his or her will.” (Ibid.) In
August 1997, “about 2,000 MTA employees were transferred to
the employ of the PTSC on a voluntary basis.” (Id. at p. 345.)
Chapter 2-30 of MTA’s administrative code, enacted by
MTA’s board of directors, pertains to PTSC. Paragraph 2-30-010
states MTA formed PTSC “as a nonprofit public benefit
corporation to perform public transportation functions in
coordination with and support of the MTA.”
9
Paragraph 2-30-020 of the administrative code provides,
“The authority and responsibilities of the PTSC are as set forth in
its articles of incorporation and bylaws and are limited to those
assigned by the MTA as necessary to further public
transportation services and projects with the County of
Los Angeles. The principal specific responsibilities of the PTSC
are: [¶] A. To provide the MTA with a mechanism for achieving
financial savings in personnel and insurance costs; [¶] B. To
provide a means of achieving insurance premium tax savings
through the creation of a joint powers authority with the MTA;
[¶] C. To provide a mechanism through which former
Los Angeles County Transportation Commission employees and
certain other employees providing services to the MTA can obtain
retirement benefits through the Public Employees Retirement
System; [¶] D. To provide a mechanism through which
employment tax savings can be achieved through non-election of
Social Security Coverage; and [¶] E. To conduct other essential
and helpful regional public transportation activities, including
planning, programming, administrative, operational
management, construction and security functions as may be
required in furtherance of the mission and purpose of the MTA.”
Paragraph 2-30-030 of the administrative code is entitled
“Relationship of PTSC and MTA.” It provides, “As a corporation
the PTSC has legal status distinct from the MTA, but by contract
the PTSC functions solely as an organizational unit of the MTA.
When serving as an organizational unit of the MTA, the PTSC is
subject to all governmental privileges and immunities enjoyed by
the MTA. Except with regard to retirement benefits and
employment taxes, the employees of the PTSC are subject to all
the privileges, immunities and responsibilities that would apply
10
if they were employed by the MTA. Unless the text otherwise
provides, any reference in any rule, policy, resolution or
ordinance to MTA employees shall be considered to also refer to
employees of the PTSC.”
2. Silver
In Silver, former RTD employees now employed by the
MTA, as well as two unions, petitioned for a writ of mandate
challenging, inter alia, PTSC’s entitlement to participate in
PERS. (Supra, 79 Cal.App.4th at pp. 345–346; see id. at pp. 342,
345, fn. 3 [identifying petitioners].) The petitioners pleaded that
PTSC “was not an independent and autonomous public
agency . . . and thus did not qualify for participation in PERS.”
(Id. at pp. 345–346.) Petitioners sought a declaration from the
court that “PTSC is a sham corporation and an organizational
unit of the MTA . . . and not a public agency within the meaning
of the [statutes governing PERS].” (Id. at p. 346.) Petitioners
further “sought an order directing PERS to cease and desist from
honoring any contract for coverage under PERS of PTSC as a
public agency and to refund to the MTA all contributions made by
MTA/PTSC.” (Ibid.)
The trial court denied the writ petition and the Court of
Appeal affirmed. (Silver, supra, 79 Cal.App.4th at pp. 347, 358.)
The reviewing court found substantial evidence to support the
trial court’s finding that “ ‘PTSC was formed for the proper
purpose of making PERS retirement benefits available to its
employees and for other proper business purposes, including
providing transportation and planning services to other
governmental entities.’ ” (Id. at pp. 352–353.) The Court of
Appeal noted, inter alia, “PTSC does not exist merely as an
extension of the MTA. Apart from the MTA, PTSC also has
11
contracted with the [Southern California Regional Rail
Authority] to provide professional and administrative services to
it.” (Id. at p. 354.) The court rejected the petitioners’ argument
that PTSC’s employees “are in fact employees of the MTA,”
because PTSC “was created for a proper purpose” and “is a
discrete entity.” (Ibid.)
The Court of Appeal also rejected the argument “that
because PTSC is an organizational unit of the MTA, PTSC is not
a separate and autonomous agency within the meaning of the
[statutes governing PERS].” (Silver, supra, 79 Cal.App.4th at
p. 356.) The court found persuasive PERS’ own analysis
concluding PTSC was eligible for PERS coverage. (Ibid.
[“Because PERS is authorized to contract with public agencies for
inclusion of their employees in the state public employees’
retirement system (Gov. Code, § 20460), PERS by necessity is
called upon to determine whether an entity is a public agency
within the meaning of the statutory scheme.”].) PERS found
PTSC’s membership was “confined to public agencies,” and
“PTSC had a sufficient degree of autonomy from the MTA
because PTSC was created under California statute and had its
own board of directors, which board had various powers,
including: the power to select and remove all the officers of the
corporation, to borrow money and incur indebtedness for the
purpose of the corporation, to appoint committees, and to enter
into contracts.” (Ibid.) The court concluded, “PTSC is a public
agency entitled to contract with PERS.” (Id. at p. 357.)
B. PTSC Is a Public Entity for Purposes of the GCA’s
Claims Presentation Requirement
Plaintiff alleged in the FAC, and argues on appeal, PTSC is
a nonprofit public benefit corporation, which he contends does not
12
qualify as a public entity subject to the GCA’s claims
presentation requirement. Defendants argue the GCA’s claims
presentation requirement applies to PTSC because it is a “local
public entity,” which under section 900.4, “includes a county, city,
district, public authority, public agency, and any other political
subdivision or public corporation in the State, but does not
include the State.” (See § 905 [claims presentation requirement
applies to claims against local public entities].) Defendants argue
PTSC is a “public agency” and a “public corporation,” and the
trial court so found.3
As an initial matter, plaintiff argues Silver is not
determinative because that case pertained to public entity status
for PERS eligibility, not the GCA. It is true the definition of
“public agency” for PERS eligibility differs from that in the GCA.
Silver concluded PTSC was eligible to contract with PERS under
section 20057, subdivision (e), which defines “ ‘public agency’ ” to
include “[a]ny nonprofit corporation whose membership is
3 In addition to the definition of “local public entity” under
section 900.4, the GCA defines “ ‘Public entity’ ” as “the state, the
Regents of the University of California, the Trustees of the
California State University and the California State University, a
county, city, district, public authority, public agency, and any
other political subdivision or public corporation in the State.”
(§ 811.2.) Because both definitions include public agencies and
public corporations, it does not matter if PTSC is deemed a public
entity under section 811.2 or a local public entity under
section 900.4 for the purpose of determining whether the GCA’s
claims presentation requirement applies.
13
confined to public agencies as defined in Section 20056.”4 (Silver,
supra, 79 Cal.App.4th at pp. 355–356.)
We will assume arguendo that an entity eligible for PERS
under section 20057, subdivision (e) is not necessarily also a
public entity under the GCA. Even so, we conclude defendants
have established, as a matter of law, that PTSC is a public entity
for purposes of the GCA’s claims presentation requirement.
The GCA does not further define “local public entity,”
“public agency,” or “public corporation.” Case law in other
contexts illustrates that determining public entity status requires
case-specific analysis. (See Hagman v. Meher Mount Corp. (2013)
215 Cal.App.4th 82, 88 (Hagman) [looking to case law defining
“public entity” under other statutory schemes when statute at
issue provided no definition].) Instructive are two recent cases,
Stone v. Alameda Health System (2024) 16 Cal.5th 1040 (Stone)
and Allen v. San Diego Convention Center Corp., Inc. (2022)
86 Cal.App.5th 589 (Allen).
In Stone, our Supreme Court addressed “whether a hospital
authority created by a county board of supervisors and
authorized by the Legislature to manage the county’s public
health facilities” was liable for wage and hour violations and civil
penalties under the Labor Code. (Supra, 16 Cal.5th at p. 1049.)
After concluding “public employers” are exempt from Labor Code
provisions concerning meal and rest break violations, the
Supreme Court concluded the hospital authority, Alameda
Health System (AHS), is a public entity entitled to that
exemption. (Id. at pp. 1049, 1068.)
4 Section 20056 defines “ ‘Public agency’ ” as “any city,
county, district, other local authority or public body of or within
this state.”
14
In reaching this conclusion, the high court first looked to
the statute enabling the creation of AHS, Health and Safety Code
section 101850. (Stone, supra, 16 Cal.5th at p. 1061.) The court
observed the statute “repeatedly describes AHS as a ‘public
agency.’ ” (Ibid.) The court further noted AHS, as a “public
hospital authority, and a public agency under the enabling
statute’s terms,” fell within the definition of “[p]ublic entity”
under the Health and Safety Code, which included “public
authority” and “public agency.” (Stone, at pp. 1061–1062, citing
Health & Saf. Code, § 13050.1.) The enabling statute also
contained provisions “address[ing] AHS’s rights and liabilities
under laws that specifically apply to public entities,” including
the GCA. (Stone, at p. 1062.)
The court then described how, under the enabling statute,
“AHS’s affairs are intertwined with, and dependent upon,
Alameda County.” (Stone, supra, 16 Cal.5th at p. 1063.) Under
the statute, the county’s board of supervisors was responsible for
appointing AHS’s governing board and adopting and amending
its bylaws. (Ibid.) The county retained control over the hospital’s
physical plant and facilities. (Ibid.) AHS employees were eligible
to participate in the county’s retirement system, with some
exceptions. (Ibid.) AHS was authorized to borrow money from
the county. (Ibid.) AHS was required to provide the county with
quarterly reports on patient care and the board of supervisors
had authority to dissolve AHS. (Ibid.) “AHS can[not] be
understood to be a private institution when it was created by a
county board of supervisors, pursuant to necessary authorization
from the state Legislature, and upon terms requiring the county’s
ongoing involvement in AHS’s board membership, bylaws,
licensure, and finances.” (Id. at p. 1067.)
15
Allen held the San Diego Convention Center Corporation
(SDCCC) is a public entity exempt from Labor Code violations
asserted by the plaintiff. (Supra, 86 Cal.App.5th at p. 597.)
SDCCC is a nonprofit public benefit corporation “wholly owned
by the city of San Diego” that operates the city’s convention
center. (United National Maintenance, Inc. v. San Diego
Convention Center, Inc. (9th Cir. 2014) 766 F.3d 1002, 1005
(United).) Allen relied on United, a federal case, which held
SDCCC is a public entity entitled to immunity from antitrust
liability under the federal Sherman Act (15 U.S.C. § 1 et seq.).
(Allen, at pp. 598–599.)
Allen noted United’s observation that “ ‘San Diego’s
municipal code . . . defines the city itself as including SDC[CC],’
and that SDCCC’s ‘relationship with San Diego also shows that
[it] acts as the instrument of San Diego: (1) San Diego appoints
all of SDC[CC]’s board members, (2) upon dissolution, SDC[CC]’s
assets revert back to San Diego; (3) SDC[CC] must publicly
account for its operations. Overall, SDC[CC] acts as an agent
that operates the convention center for the benefit of its
principal, the city of San Diego.’ [Citation.]” (Allen, supra,
86 Cal.App.5th at p. 599, quoting United, supra, 766 F.3d at
p. 1011.) United further observed the California law “ ‘granted
cities the statutory authority to construct public assembly or
convention halls’ ” and appoint commissions to manage the
facilities, and any funds from those halls after expenses go to the
city’s general fund. (Allen, at p. 599, quoting United, at p. 1005.)
The Allen court concluded, “[T]hese undisputed facts
establish as a matter of law that [SDCCC] is a public entity,
which is not subject to the Labor Code provisions [the plaintiff]
alleges it violated.” (Allen, supra, 86 Cal.App.5th at p. 599.)
16
“The SDCCC was formed under the authority of state law,
operates solely for the benefit of the municipality, and is defined
by the City of San Diego’s municipal code as part of the city.” (Id.
at p. 600.)
PTSC is sufficiently analogous to AHS and SDCCC for us to
conclude it is a public entity. Like AHS and SDCCC, PTSC was
created by a governmental entity, MTA. Also like AHS and
SDCCC, PTSC’s creation was pursuant to statute, in this case
Public Utilities Code section 130051.11, which authorizes MTA to
create organizational units, including “subsidiary units,” and
“delegate . . . any powers and duties it deems appropriate.” (Id.,
subds. (a), (f).) Just as the board of supervisors in Stone and the
city council in Allen exercised significant control over the entities
at issue, MTA’s administrative code defines PTSC as an
organizational unit of MTA, and limits PTSC’s “authority and
responsibilities” “to those assigned by the MTA as necessary to
further public transportation services and projects.” (MTA
Admin. Code, §§ 2-30-020, 2-30-030.) Like SDCCC, PTSC “ ‘acts
as the instrument’ ” of MTA (Allen, supra, 86 Cal.App.5th at
p. 599) by supplying and managing the workers who carry out
MTA’s mission.
In support of his contention that PTSC, as a nonprofit
public benefit corporation, is not a public entity, plaintiff cites
Hagman, supra, 215 Cal.App.4th 82. In Hagman, a nonprofit
religious organization argued that because it was a “public
benefit corporation” under Corporations Code section 5060, it was
a “public entity” immune from adverse possession under Civil
Code section 1007. (Hagman, at pp. 85, 87.)
The Court of Appeal disagreed. The court first concluded,
“[P]ublic benefit corporations are not public corporations,” the
17
latter being “a term of art used to designate certain entities that
exercise governmental functions,” such as the State Bar and
district agricultural associations. (Hagman, supra,
215 Cal.App.4th at pp. 87–88.) “That the terms ‘public
corporation’ and ‘public benefit corporation’ happen to share two
of the same words does not make them synonymous.” (Id. at
p. 88.)
The court further concluded, “[P]ublic benefit corporations
are not public entities.” (Hagman, supra, 215 Cal.App.4th at
p. 88.) Because “public entity” is not defined for purposes of Civil
Code section 1007, the court looked to other statutory schemes
and concluded, “In every instance, the entities listed as public
entities—from traditional bodies like counties and cities to more
recent innovations like public authorities and public
corporations—have one thing in common: Each is vested with
some degree of sovereignty.” (Hagman, at p. 88.) “Public benefit
corporations lack any element of sovereignty. They are not
created by the government, even though they may require
governmental approval to qualify as a public benefit corporation.
They are not owned or operated by the government. They do not
possess any of the traditional incidents of sovereign authority
such as the power to tax or to condemn property. They do not
serve a governmental purpose, although they may serve altruistic
purposes that benefit society.” (Ibid.)
Plaintiff appears to read Hagman to hold that a nonprofit
public benefit corporation cannot be a public entity. Not so.
Hagman establishes an entity’s status as a nonprofit public
benefit corporation does not, by itself, grant it “public entity”
status. This does not mean a nonprofit public benefit corporation
cannot be a public entity if its attributes resemble those of a
18
public entity. Hagman discussed nonprofit public benefit
corporations that are “not created by the government,” or “owned
or operated by the government,” and that “do not serve a
governmental purpose.” (Hagman, at p. 88.) Hagman did not
confront the circumstances of the instant case, in which the
nonprofit public benefit corporation at issue, PTSC, was
1) created by a government entity that dictates its authority and
responsibilities, and 2) serves a governmental purpose. Indeed,
these qualities are among the “element[s] of sovereignty”
Hagman attributes to public entities. (Id. at p. 88.)
We further note case law does not support plaintiff’s
contention that a nonprofit public benefit corporation can never
be a public entity. As discussed, SDCCC is a nonprofit public
benefit corporation (United, supra, 766 F.3d at p. 1005), and
Allen concluded it is also a public entity.
Plaintiff argues PTSC and other nonprofit public benefit
corporations cannot be public entities because “[t]hey do not
possess traditional incidents of sovereign authority such as the
power to tax or condemn property.” On the record before us, we
do not know whether PTSC has any powers to tax or condemn
property. We observe the Legislature has authorized MTA to
delegate to its organizational units “[t]he power of eminent
domain.” (Pub. Util. Code, § 130051.11, subd. (f)(1).) We will
assume arguendo, however, that plaintiff accurately asserts that
PTSC lacks the power to tax or condemn property.
We conclude an entity can qualify as a public entity for
purposes of the GCA despite not having the powers of taxation or
eminent domain. In Stone, the plaintiffs similarly argued AHS
could not be considered a “public entity exempt from Labor Code
requirements” because it lacked “the same sovereign powers as a
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city or county.” (Stone, supra, 16 Cal.5th at p. 1067.) The court
rejected the “broad assertion that only entities with the same
sovereign powers as a division of government, such as taxing or
eminent domain authority, are exempt from Labor Code
requirements.” (Id. at p. 1068.) The court further rejected
plaintiff’s comparison of AHS to a charter school operator held
not to be a public entity in Gateway Community Charters v.
Spiess (2017) 9 Cal.App.5th 499 (Gateway) (abrogated by Stone)
precisely because “[m]any aspects of AHS’s creation and ongoing
close relationship with county government distinguish it from the
nonprofit corporation in Gateway.” (Stone, at p. 1068.) “To the
extent ‘hallmarks of sovereignty’ [citation] are required to make
AHS an exempt public entity, those identified above [referring to
the court’s discussion of facts supporting public entity status]
suffice.” (Ibid.; see also id. at p. 1064 [“California has a great
many governmental agencies. The fact that they are not all fully
autonomous sovereigns does not nullify their governmental
status.”].)
Stone establishes that determining whether an entity is a
public entity, and therefore exempt from certain Labor Code
provisions, calls for a multi-faceted inquiry. An entity’s powers
are not the only indicia. Factors such as the circumstances of the
entity’s creation and its relationship with other governmental
entities are also relevant. We perceive no reason this analysis
does not apply equally to public entity status for purposes of the
GCA’s claims presentation requirement, and plaintiff provides no
basis to conclude otherwise.
Plaintiff’s other cited cases are unavailing. In Knapp v.
Palisades Charter High School (2007) 146 Cal.App.4th 708
(Knapp), the Court of Appeal concluded a charter school, as a
20
nonprofit public benefit corporation, was not a public entity
entitled to the GCA’s claims presentation requirement. (Id. at
p. 710.) Although the school was chartered by the Los Angeles
Unified School District (LAUSD), itself a public entity, that
“chartering authority comprises the sole relationship” between
the school and LAUSD. (Id. at p. 717.) Under the Education
Code, the charter school was “an independent legal entity from
its chartering authority,” with “substantial freedom to achieve
academic results free of interference by the LAUSD.” (Ibid.) The
school “has its own board of directors and budget, hires its own
administrators and teachers, and has identified its own
authorized agent for service of process.” (Ibid.) The school’s
charter required it to carry its own insurance, indemnify LAUSD
from any claims arising from the school, and be responsible for its
own financial services. (Ibid.)
Just as Stone rejected the comparison between AHS and a
charter school operator (supra, 16 Cal.5th at p. 1068), we reject
the comparison between PTSC and the charter school in Knapp.
As in Stone, “[m]any aspects of [PTSC’s] creation and ongoing
close relationship with [MTA] distinguish it from” a charter
school. (Stone, at p. 1068.) PTSC was not simply chartered by
MTA, but created by MTA under statutory authority, and PTSC
cannot be said to have “substantial freedom” from MTA (Knapp,
supra, 146 Cal.App.4th at p. 717) when PTSC’s primary purpose
is to provide services to MTA, and MTA’s administrative code
limits PTSC’s authority and responsibilities to those assigned by
MTA. (See Stone, at pp. 1074–1075 [distinguishing AHS from
charter school because “AHS was created pursuant to specific
legislative authorization, not a charter, and its affairs are closely
overseen by the Alameda County Board of Supervisors.”].)
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For the same reasons, plaintiff’s other cited cases holding
charter schools are not public entities are distinguishable. (See
Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164;5
Los Angeles Leadership Academy, Inc. v. Prang (2020)
46 Cal.App.5th 270; Gateway, supra, 9 Cal.App.5th 499.)
Plaintiff also cites Lawson v. Superior Court (2010)
180 Cal.App.4th 1372, which held the trial court erred in
sustaining a demurrer based on governmental immunity. (Id. at
pp. 1397–1398.) According to the complaint, the defendant entity
was a private contractor operating a state prison. (Id. at p. 1397.)
The Court of Appeal found no authority “that extends the
governmental immunity set forth in the Tort Claims Act to a
private entity working under contract for the State.” (Ibid.)
Lawson, like plaintiff’s other cited cases, does not address
the instant circumstance of a nonprofit public benefit corporation
formed by a governmental entity under statutory authorization,
which governmental entity also dictates the nonprofit public
benefit corporation’s powers. Lawson is thus not instructive.
In sum, PTSC is a public entity for purposes of the GCA’s
claims presentation requirement.
C. Plaintiff May Amend His Complaint To Allege PTSC’s
Noncompliance with Registration Requirements for
Public Agencies, Which Would Excuse Him From the
Claims Presentation Requirement
Alternatively, plaintiff argues, to the extent PTSC is a
public entity, PTSC has not demonstrated it has satisfied its
obligation to register on the Registry of Public Agencies, which
5Knapp relied heavily on Wells and followed its reasoning.
(Knapp, supra, 146 Cal.App.4th at pp. 716–717.)
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failure would excuse him from filing a government prelitigation
claim. We agree plaintiff is entitled to amend his complaint to
include this allegation.
Section 53051, subdivision (a) requires a public agency,
“[w]ithin 70 days after the date of commencement of its legal
existence,” to file a form with the Secretary of State “and with the
county clerk of each county in which the public agency maintains
an office” stating the name of the agency, its governing body’s
mailing address, and the names and addresses of each member of
the agency’s governing body as well as its presiding officer and
clerk or secretary. This information is kept in a “ ‘Registry of
Public Agencies’ ” maintained by the Secretary of State and “the
county clerk of each county.” (§ 53051, subd. (c).)6 For purposes
of section 53051, a “public agency” is “a district, public authority,
public agency, and any other political subdivision or public
corporation in the state, but does not include the state or a
county, city and county, or city.” (§ 53050.)
Our Supreme Court has stated the purpose of section 53051
is “to provide a means for identifying public agencies and the
names and addresses of designated officers needed to enable or
assist a person to comply with any applicable claims procedure.”
(Tubbs v. Southern Cal. Rapid Transit Dist. (1967) 67 Cal.2d 671,
676 (Tubbs).) In other words, section 53051 serves to facilitate,
inter alia, the GCA’s claims presentation requirement.
Accordingly, a litigant is excused from the GCA’s claims
presentation requirement “if, during the 70 days immediately
following the accrual of the cause of action, either of the following
6 The Registry of Public Agencies previously was called the
“Roster of Public Agencies.” (See Stats. 2019, ch. 329, § 14
[changing “Roster” to “Registry”].)
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apply: [¶] (1) No statement pertaining to the public agency is on
file, or is placed on file, in the Registry of Public Agencies in the
office of the Secretary of State and of the county clerk of each
county in which the public agency then maintains an office, as
required by Section 53051. [¶] (2) A statement or amended
statement pertaining to the public agency is on file, or is placed
on file, in the Registry of Public Agencies in the office of the
Secretary of State and of the county clerk of each county in which
the public agency then maintains an office, but the information
contained therein is so inaccurate or incomplete that it does not
substantially conform to the requirements of Section 53051.”
(§ 946.4, subd. (a); see Santee v. Santa Clara County Office of
Education (1990) 220 Cal.App.3d 702, 715 [“If a public agency
fails to file the pertinent information the claim presentation
requirements are eliminated.”].)
When a plaintiff alleges a public agency has not complied
with the registration requirements, it is the public agency’s
burden to prove compliance. (§ 946.4, subd. (b).) Despite this
burden, and despite plaintiff’s raising the issue of registration
below, defendants offered no evidence of PTSC’s compliance in
the trial court, nor did they in their initial briefing on appeal.
Instead, defendants argued, and the trial court found, PTSC was
not required separately to comply with section 53051 because,
under MTA’s administrative code, PTSC is an “ ‘organizational
unit’ ” of MTA “ ‘subject to all the governmental privileges and
immunities enjoyed by the MTA.’ ”
In response to this court’s supplemental briefing request for
further discussion of the registration requirement, defendants
clarified that PTSC is its own “public agency under Government
Code section 53050.” By statute, all public agencies must comply
24
with section 53051, and PTSC, for the first time, as part of its
supplemental briefing, provided documentation indicating PTSC
registered with the Secretary of State as of August 7, 2000.7
As an initial matter, we reject defendants’ original
argument, and the trial court’s conclusion, that PTSC’s
relationship with MTA excuses it from section 53051’s
registration requirement. Defendants have consistently argued
PTSC is a “public agency,” including under section 53050. The
trial court also expressly found PTSC is a “public agency.” By
statute, all public agencies must comply with section 53051.
PTSC’s relationship with MTA does not excuse PTSC from
section 53051’s registration requirement. Defendants cite no
statutory or case authority that a public agency may extend its
own registered status to another public agency via an
administrative code or any other method. The purpose of the
Registry of Public Agencies is to “assist a person to comply with
any applicable claims procedure.” (Tubbs, supra, 67 Cal.2d at
p. 676.) This purpose would be ill served if a litigant could not
rely on that Registry, but instead, must also investigate whether
an unregistered agency nonetheless is sufficiently tied to another
registered agency to merit prelitigation notice. Yet that would be
the outcome were we to accept defendants’ argument. We reject
the contention that MTA’s administrative code shields PTSC
from noncompliance with section 53051.
As noted above, in their supplemental briefing, defendants
changed tack and now argue PTSC, in fact, has complied with the
7 We question why defendants did not provide this
evidence in the trial court, which would have simplified the
issues on appeal and obviated the need for two rounds of
supplemental briefing.
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registration requirement. In his supplemental briefing, plaintiff
contends PTSC has yet to demonstrate compliance because
1) PTSC did not register “[w]ithin 70 days after the date of
commencement of its legal existence” (§ 53051, subd. (a)), and
2) defendants’ evidence does not indicate PTSC registered with
“the county clerk of each county in which the public agency then
maintains an office” (§ 946.4, subd. (a)(1)).
As to plaintiff’s first argument, although he is correct
section 53051 requires a public agency to register within 70 days
after it comes into existence, section 946.4 does not so require.
Rather, section 946.4 requires only that the agency’s registration
be on file “during the 70 days immediately following the accrual
of the cause of action.” (§ 946.4, subd. (a).) Thus, even if an
agency fails to meet the 70-day deadline under section 53051, it
nonetheless is entitled to the benefit of the GCA’s claims
presentation requirement if the agency’s registration is on file
during the 70 days immediately after the plaintiff’s cause of
action accrues.
Plaintiff’s second argument has merit. In the request for
judicial notice accompanying their supplemental briefing,
defendants provided evidence PTSC registered with the Secretary
of State but have provided no evidence PTSC also registered with
the county clerk in each county in which it maintains an office, as
required under section 946.4, subdivision (a)(1). Absent that
evidence, defendants have not demonstrated compliance with
section 53051 or section 946.4.
Defendants argue, and the trial court agreed, plaintiff’s
invocation of sections 946.4 and 53051 was procedurally improper
because he raised them in his opposition to the demurrer rather
than alleging PTSC’s lack of compliance in the complaint. We
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construe plaintiff’s invocation of those sections, both below and
here on appeal, as a proffer of how he might amend his complaint
to state a claim, something he may do even for the first time on
appeal. (Heshejin, supra, 54 Cal.App.5th at p. 992.) Defendants
have not demonstrated plaintiff cannot allege PTSC’s lack of
compliance, given the absence of evidence of registration with one
or more county clerks. We therefore conclude the trial court
abused its discretion by not granting leave to amend to add
allegations concerning PTSC’s lack of compliance with
sections 53031 and 946.4.
In so holding, we express no opinion whether PTSC in fact
has not registered with the relevant county clerks, evidence
defendants may present on remand. Nor does this opinion
prevent plaintiff from challenging the validity of the evidence of
PTSC’s registration with the Secretary of State, apart from the
argument we have rejected, to wit, that the registration fails for
not having been filed within 70 days of PTSC’s commencement.
We also express no opinion on defendants’ motion to strike or
alternative grounds for demurrer apart from the GCA’s claims
presentation requirement. The trial court may address the
motion to strike and any such alternative grounds for demurrer
on remand.
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DISPOSITION
The judgment in favor of Los Angeles Metropolitan
Transportation Authority is affirmed. The judgment in favor of
Public Transportation Services Corporation is reversed and the
matter remanded for further proceedings consistent with this
opinion. Andrew Black is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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