Opinion
Redland & Pinney, San Francisco, for appellant.
J. F. Coakley, Dist. Atty., Alameda County, Appelbaum, Mitchell & Bennett, Oakland, for respondents.
BRAY, Presiding Justice.
Plaintiff appeals from a judgment in favor of defendants, which judgment is based upon failure of plaintiff to present a claim pursuant to the claim statutes.
QUESTIONS PRESENTED.
1. As no claim was presented prior to filing suit, may the issue of estoppel alleged in the amended complaint be considered?
2. Are the allegations of estoppel in the amended complaint sufficient?
3. Does section 716, Government Code, apply?
RECORD.
Plaintiff filed a complaint for damages against Shirley Andreatta and her employer, County of Alameda, for injuries received in a collision between an automobile alleged to have been negligently driven on April 5, 1960, by defendant Andreatta and one in which plaintiff was riding. The complaint did not alleged the presenting to defendants of any claim. Defendants demurred on several grounds, including failure to present claim as required by sections 710, 715, 800 and 803, Government Code. While the record does not disclose the court's action on that demurrer, nor on a similar demurrer to the first amended complaint, apparently the demurrers were sustained with leave to amend. Eventually an 'amended complaint' (which for purposes of clarity will be referred to as the second amended complaint) was filed. This complaint, like its predecessors, did not allege the presenting of any claim prior to filing suit. It alleged purported grounds of estoppel to object to the failure to file claim, and then the filing of a claim subsequent to the filing of suit. Defendants answered denying the material allegations of the complaint, but admitting that at the time of the accident defendant Andreatta was acting within the scope of her employment by the defendant county. They also alleged the failure to file claims.
Thereafter, in chambers, defendants moved for a separate trial of the issue of estoppel to assert the failure to file a timely claim. It was then agreed that the court should first determine whether in view of the fact that no claim was filed prior to the 1. DOES ESTOPPEL LIE?
The first ground upon which it is contended that the judgment is correct, is that the failure to file a claim prior to suit prevents consideration of any facts which might estop defendants from asserting the defense of failure to file claim on time.
As to the time to file claim with defendant county, sections 710 and 715 of the Government Code provide that no suit for damages for personal injuries may be brought until a written claim has been presented to the county and not later than the 100th day after the cause of action accrues. With respect to defendant Andreatta, a public employee, section 801 (formerly § 1981) of the Government Code requires a claim to be filed with the employee and the county clerk within 90 days after an accident has occurred. Section 803 (formerly § 2003) provides that a cause of action for damages resulting from negligence of the employee against a public employee 'shall be barred unless a written claim for such damages had been presented to the employing * * * county * * * in the manner and within the period prescribed by law as a condition to maintaining an action therefor against such governmental entity.'
There is no question in the instant case of compliance with the statutes. It is stipulated that there was no such compliance. The only question relates to whether or not the defendants could be estopped to raise the defense of such noncompliance. Sections 710 and 715 are part of the general claims procedure enacted in 1959. (See 1 Witkin, Cal.Procedure, 1961 Supp., Actions, p. 170, § 61 et seq.) Prior to that date claims procedures were not uniform. (See 1 Witkin, Cal.Procedure, Actions, p. 560, § 61 et seq.) It has long been held that estoppel may overcome the defense of late filing under municipal claims procedure (Farrell v. Placer County (1944) 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323; Cruise v. City & County of San Francisco (1951) 101 Cal.App.2d 558, 225 P.2d 988; Kirchmann v. City of Anaheim (1955) 137 Cal.App.2d 216, 220, 289 P.2d 817) as well as under former sections 1981 and 2003 of the Government Code (Dettamanti v. Lompoc Union School Dist. (1956) 143 Cal.App.2d 715, 300 P.2d 78). At the same time it has been held that complete failure to file a claim cannot be excused and that under such circumstances an estoppel may not be asserted. (Johnson v. County of Fresno (1944) 64 Cal.App.2d 576, 149 P.2d 38; Brown v. Sequoia Union High School Dist. (1949) 89 Cal.App.2d 604, 201 P.2d 66; Slavin v. City of Glendale (1950) 97 Cal.App.2d 407, 217 P.2d 984; Klimper v. City of Glendale (1950) 99 Cal.App.2d 446, 222 P.2d 49.) Further, it is well settled that a complaint that does not allege compliance with section 710 fails to state a cause of action against a public entity. (Tyhurst v. Housing Authority (1963) 213 A.C.A. 792, 29 Cal.Rptr. 239.) The same is true with respect to sections 801 and 803. (Whaley v. Kirby (1962) 208 Cal.App.2d 232, 239, 25 Cal.Rptr. 50; Payne v. Bennion (1960) 178 Cal.App.2d 595, 602, 3 Cal.Rptr. 14, and cases there cited).
With the above noted state of the law in mind, defendants argue that the demurrer to the original complaint should have been sustained without leave to amend since the complaint did not allege the filing of a claim, and, alternatively, that even if the complaint was properly amended to raise a question of estoppel to rely on noncompliance, none could be asserted since at the time the action was brought no claim had been filed. Plaintiff, on the other hand, asserts the question of estoppel should have gone to the jury, despite the fact that the claim was not filed until after the action was commenced. Before considering further the estoppel question, it is necessary to dispose of plaintiff's contention that the filing of claims after suit is filed is sufficient to permit the consideration of estoppel, and that the two prior complaints which failed to allege the filing of claims (they could not because at that time no claims had been filed) must be ignored and only the second amended complaint considered on this subject because it supersedes the prior pleadings. Therefore, says plaintiff, the 'complaint' in the case was filed after claims filed. Insofar as the allegations of estoppel in the second amended complaint are concerned those facts existed at the time the original complaint was filed and were the proper subject of an 'amended' complaint. However, the allegations with respect to the filing of a claim are the proper subject of a 'supplemental' complaint and not an 'amended' one, in that those events occurred after the original complaint was filed. (See 2 Witkin, Cal.Procedure, Pleading, pp. 1625-1635, §§ 611-617.) The point is that the action was commenced before a claim was filed, and this fact cannot be changed simply because a later complaint alleging a later filing superseded the original. Hence the question at bench must be considered as though no claims were ever filed.
There are only four cases in this state holding that estoppel to question failure to file a claim cannot be raised where no claim is filed, rather than merely a later filing. The first is Johnson v. County of Fresno, supra, 64 Cal.App.2d 576, 149 P.2d 38. There the plaintiff's original complaint did not allege the filing of a claim and demurrer to it was sustained with leave. The amended complaint pleaded estoppel, but the reviewing court held that such could not be asserted because no claim was filed, and affirmed judgment against the plaintiff based on the sustaining of a demurrer to the amended complaint without leave to amend. The court pointed out that prior to the Farrell case, supra, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323, it had been held 'without deviation that the filing of a claim is a necessary prerequisite to bringing an action for damages' (64 Cal.App.2d page 578, 149 P.2d page 39) under the Public Liability Act, but that in the Farrell case, where a claim was presented but after the expiration of the prescribed time, the court concluded that the county defendant might be estopped by the fraud of its agents in preventing the filing of the claim within the prescribed time. The court, in Johnson, then stated that if the plaintiff had filed a claim within 'a reasonable time' after discovery of the fraud on which he sought to base the estoppel, he would have brought himself within the rule of Farrell, which held that estoppel could overcome the defense of late filing of a claim against the county.
In Johnson there was no discussion of the reason why where the county could be estopped by circumstances from urging the failure of the plaintiff to file a claim on time it could not also be estopped from urging the failure to file claim at all. The court seemed to feel that because in the Farrell case a claim had been filed, although late, one must be filed under all circumstances, citing cases which prior to Farrell had held that a claim must always be filed on time.
The second case relating to the claim of estoppel where no claim was filed at all is Klimper v. City of Glendale, supra, 99 Cal.App.2d 446, 222 P.2d 49, where the court again without discussing the matter at any length, briefly states that the cases cited by the appellant in support of her contention that the facts alleged estopped the city from urging her failure to file claim, were cases in which claims were filed, although filed late, and then, without citation of authority, the court held that estoppel would not lie where no claim at all was filed.
In the third case, Brown v. Sequoia High School Dist., supra, 89 Cal.App.2d 604, 201 P.2d 66, the court without further discussion said that because of the failure of the plaintiff to file a claim, 'The case therefore falls squarely within the holding of Johnson v. County of Fresno, 64 Cal.App.2d 576, 149 P.2d 38.' (89 Cal.App.2d p. 605, 201 P.2d p. 66.) Likewise, in the fourth case, Slavin v. City of Glendale, supra, 97 Cal.App.2d 407, 411, 217 P.2d 984, the decision that the plaintiff's action was barred for failure to file a claim is based on Johnson, supra, without any further discussion of the subject.
In all the other cases cited by defendants there was a failure to file any claim, but there was no attempt to set up in the particular complaint any estoppel of the governmental entity involved to raise that defense. The four cases holding the failure to file claim fatal give no logical reason why there should be a differentiation in the question of estoppel from where a claim is filed late, and where it is not filed at all. Logically, and in fairness, what facts would raise estoppel in the one situation should unquestionably raise it in the other situation.
Witkin points out the weaknesses of the Johnson case and its rationale. He states, with reference to the holding in Johnson, 'This view seems wholly unsound. The statutory requirements and the judicial rule of strict compliance have both been justified on the ground that the governmental agency must have prompt and adequate notice in order to investigate the claim while the facts are available. Late notice and defective notice have been rejected as equivalent to no notice at all because they do not serve the statutory purpose. It follows that if estoppel or incapacity excuses late notice it should excuse no notice. The late notice within the unspecified 'reasonable time' mentioned by the court would serve no statutory purpose. Indeed, it would be an idle gesture in the estoppel cases where the theory of the action is that the defendant, with full knowledge of all facts which the claim would disclose, induces plaintiff to omit the filing of the claim. And if the contention is made that the governmental agency must in all cases have a claim in hand before suit is filed in order that it may decide to settle without litigation the answer is found in Porter v. Bakersfield etc. Ry. Co. [(1950) 36 Cal.2d 582, 225 P.2d 223] where a complaint with claim attached, filed within the claim period, was held good. If the useless formality of an actual claim is the pound of flesh which the statute demands, the plaintiffs in the Johnson and Brown cases ought to have been permitted to file them during the actions.' (1 Witkin, Cal.Procedure, Actions, § 66, p. 576.)
Witkin also notes (p. 576) 'strong dicta suggesting the opposite result' from Johnson in Cruise v. City & County of San Francisco, supra, 101 Cal.App.2d 558, 225 P.2d 988. There a claim was filed 10 days late. The plaintiff alleged that the city's claim adjuster called on her, obtained a full report, and advised her that the claim would be settled if she furnished certain other information. The plaintiff furnished the information, was told to wait, and heard nothing further until a communication advising her to file a written claim was received on the evening of the day the time expired. In reversing a judgment for defendant entered on the granting of a motion for judgment on the pleadings, the court followed the rule of the Farrell case and subsequent cases. It was stated: 'These cases establish the law to be that a city, in a proper case, may be estopped from relying on the defense of non or late compliance with the statute, and that substantial compliance is all that is required. The old doctrine of strict and literal compliance with its attendant harsh and unfair results has disappeared from our law.' (101 Cal.App.2d p. 563, 225 P.2d p. 992; emphasis added.) The court added: 'The government should not be permitted to avoid liability by tactics that would never be countenanced between private parties.' (101 Cal.App.2d p. 565, 225 P.2d p. 993.)
The allegations of the instant complaint show that the main purpose of the claims statute has been fulfilled. That purpose is timely notification of the governmental body of the accident, opportunity to investigate it and the giving of all requested information by the injured person, so that a meritorious claim may be settled Cruise v. City & County of San Francisco,
Thus, is appears that while there is case authority supporting defendant's position, that authority is inconsistent with the underlying principles of the law permitting an estoppel to be asserted against a governmental entity.
It would seem that this is a proper time and case in which to apply the principle of fair dealing by a governmental authority. Where, as indicated by the allegations of the second amended complaint, an ignorant woman, relying upon the statements of defendants' agent, was lulled into security and thereby prevented from asserting her rights within time, and the defendants appear to have been in nowise injured thereby, it would be supertechnical to hold that, had she filed a claim before suit, although under the allegations of the second amended complaint the filing of such claim would not have given defendants any information they did not already have nor been of any advantage to them, she could present to the trier of fact her claim of estoppel, but because of the failure to file at all, she may not. The interests of justice and fair dealing require that a plaintiff who has failed to file his claim under the claims statutes shall have his day in court on the question of whether his failure to follow those statutes was chargeable to those against whom the claim is to be made, regardless of whether the claim is filed late or not at all, provided the latter are not injured by such failure.
2. SUFFICIENCY OF THE ALLEGATIONS OF ESTOPPEL.
Defendants contend that the allegations of estoppel are insufficient and that the court so found.
It is difficult to tell from the record whether on the separate trial of the issue of the failure of the plaintiff to file claims, there was presented to the court and that the court determined anything other than the question of whether the failure to file claims prevented the court from considering the question of estoppel, or whether the court considered the sufficiency of the pleading of estoppel.
The allegations pertinent to the question of estoppel are that one Kendall was the agent and claims representative of both defendants; that within a few days after the accident Kendall represented to plaintiff that he was such agent and claims representative; that he advised her (an uneducated Negro woman) that she did not need counsel and that it would not be necessary for her to retain counsel, that all her rights would be protected; that relying upon the representations, she did not seek The record shows that with a jury present for the trial of the case, defendants, in chambers, moved for a 'trial on the issue of estoppel to file a claim, as a separate trial,' and before a separate jury. Considerable discussion between court and counsel ensued, in which defendants agreed that the issue could be tried by the court instead of by a jury. Apparently it was agreed that there were two issues to be submitted to the court: (1) the effect of the failure to file claims before suit and of the filing of the claims after suit, and (2) if this issue was decided in favor of plaintiff, what was referred to as the 'factual issue' upon which evidence was to be produced, namely, did the facts support an estoppel? On this second issue defendants contended that, assuming the facts existing prior to the time plaintiff consulted an attorney supported an estoppel, the estoppel was lost to plaintiff for the failure to file claims after an attorney was employed by her. When asked by defendants' counsel if the court would 'like to hear the evidence as to the estoppel now, regardless of your ruling' (apparently referring to the question of the right to consider estoppel at all) the court replied that it did not see much point to that. It was then agreed to stipulate 'to some facts concerning--which would have a bearing on the legal issues.' Thereupon the parties stipulated in pertinent part that no claims were filed prior to suit; that claims were served after suit; that the 'later time' plaintiff saw her attorney would be October 17, 1960 (suit was filed November 13); that defendant Andreatta at the time of the accident was driving in the scope of her employment by defendant county. It was pointed out that defendants' demurrer to the second amended complaint had been overruled. Finally the court said: 'Well, then, suppose that you submit this one issue with the understanding that as soon as I have come to a conclusion on this I will contact you and see how we will proceed from here.' (Emphasis added.)
Thereafter the court filed its judgment in which it was adjudged that plaintiff take nothing by her action, and that defendants recover costs.
Findings of fact and conclusions of law were waived.
This judgment recited in pertinent part: '* * * a jury having been expressly waived as to the defense of failure to file a Claim within the time allowed by law prior to the commencement of the action, the said issue having been ordered tried separately, pursuant to the provisions of section 597, Code of Civil Procedure * * * and it having been stipulated by counsel for the parties hereto that the Court, upon considering the evidence offered by stipulation, could rule on the legal question of the compliance of plaintiff with the Claim Statute prior to the trial of the factual issues, and if this question was decided adversely to plaintiff it was stipulated that the court could render judgment for defendants, and evidence having been introduced and the following stipulations having been entered into * * *.'
The stipulations mentioned were that no claims were filed prior to the filing of the action; that plaintiff first saw her attorney on October 17, 1960; that claims were filed after the commencement of the action, and that defendant Andreatta was acting within the scope of her employment by defendant county at the time of the accident.
It would appear from the record that the only matter upon which the court passed was the effect of plaintiff's failure to file claims prior to suit and of filing claims after suit. On this issue the court, in effect, determined that plaintiff was barred from proving any estoppel.
Assuming, however, that the court determined, as claimed by defendants, that because Ghiozzi v. City of South San Francisco (1946) 72 Cal.App.2d 472, 164 P.2d 902, cited by defendants, is not in point. There the court held that written notice or oral communications to city officials of the danger to the plaintiff's property did not constitute a substantial compliance with or satisfaction of a statutory requirement for a verified claim, or give rise to an estoppel to assert the defense. In that case there was not contention made that any act of the city or its officials prevented the plaintiff from filing claim, nor was there any contention of fraud upon their part.
Upon the trial of the estoppel issue the trial court will have to determine the truth of plaintiff's allegations of estoppel. Also, defendants will have the right to show, if they can, that the failure to file claims, either before or after plaintiff employed an attorney, had injured them.
3. SECTION 716.
Defendants contend that plaintiff could have had relief under section 716, and having failed to apply for it, plaintiff cannot seek other relief.
Section 716 provides that the court 'shall grant leave to present a claim after the expiration of the time specified in Section 715 if the entity against which the claim is made will not be unduly prejudiced thereby, where no claim was presented during such time and where: (a) Claimant was a minor during all of such time; or (b) Claimant was physically or mentally incapacitated during all of such time and by reason of such disability failed to present a claim during such time; or (c) Claimant died before the expiration of such time.' On the face of this record, section 716 has no application here. A mere reading of the section shows that it does not and cannot apply in this case. Plaintiff comes within none of the categories mentioned in the section and therefore plaintiff has no standing to petition for the relief provided by the section. Nor can it be contended that section 716 implicitly shows legislative intent to abolish estoppel by making the conditions outlined in section 716 the only ones under which late filing may be excused. Even though the Law Revision Commission recommended that an express section with regard to estoppel be enacted (p. A-124), and none was, it cannot be held that the Legislature intended to limit the assertion of estoppel against a public agency to the situations set forth in section 716.
The judgment is reversed.
SULLIVAN and MOLINARI, JJ., concur.