Stromberg, Inc. v. Los Angeles County Flood Control Dist.

• Decision Date: 19 March 1969
• Citation: 76 Cal.Rptr. 183,270 Cal.App.2d 759
• Court: California Court of Appeals Court of Appeals
• Parties: STROMBERG, INC., a California Corporation, Plaintiff and Appellant, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, Defendant and Respondent. Civ. 32987.

Page 183

76 Cal.Rptr. 183

270 Cal.App.2d 759

STROMBERG, INC., a California Corporation, Plaintiff and Appellant, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, Defendant and Respondent.

Civ. 32987.

Court of Appeal, Second District, Division 1, California.

March 19, 1969.

Paul K. Duffy, Anaheim, for appellant.

John D. Maharg, County Counsel, and Richard C. Greenberg, Deputy County Counsel, for respondent.

LILLIE, Associate Justice.

On November 18, 1966, plaintiff filed the within 'Complaint For Declaratory Relief' and damages ($194,000) alleging a written contract with defendant Los Angeles County Flood Control District under which it undertook to construct a storm drain, and that defendant delayed its construction, furnished inaccurate plans and specifications and failed to compensate it for extra work; and in paragraph X ¹ that on June 8, 1966, it presented a claim to the Board of Supervisors and the same was denied. In its answer defendant denied all material allegations, specifically ² paragraph X, set up affirmative defenses, and by counter claim prayed for damages ($9,900) for late completion of the work under the contract. Thereafter defendant filed notice of motion for summary judgment (§ 437c, Code Civ.Proc.) on the ground, plaintiff's allegation (Para. X) notwithstanding, that 'plaintiff has failed to file a claim with defendant's Board of Supervisors as required by Government Code sections 900 et seq.'; opposing declarations assert that plaintiff relies upon the service of the complaint in its first lawsuit against defendant (No. 886078) filed May 31, 1966 (subsequently dismissed by the court) to constitute the filing of a written claim with the Board of Supervisors. The trial court ruled ³ that the complaint did constitute a 'claim' under the claims statute, and granted the motion. Plaintiff appeals from judgment entered on the order.

Before the court below were the pleadings in plaintiff's first lawsuit entitled Stromberg, Inc. v. Los Angeles County Flood Control District, SC 886078, all pleadings in the instant case, supporting affidavits and the opposing declarations of plaintiff's counsel. On May 31, 1966, plaintiff started its first lawsuit against defendant District (No. 886078) by filing 'Complaint For Declaratory Relief' virtually identical with the complaint herein except that it did not allege that it had filed a claim with the County. Service was effected on defendant District June 2, 1966, and on June 8, 1966, the Board of Supervisors received and filed copy of the complaint 'purported to have been served on said District.' On June 14, 1966, defendant District filed a general demurrer on the ground that the complaint failed to state facts sufficient to constitute a cause of action in that it did not allege that a claim had been filed with the County; demurrer was sustained with ten days leave to amend. Thereafter, upon plaintiff's failure to amend, defendant's unopposed motion to dismiss was granted; by order of September 20, 1966, the complaint (No. 886078) was dismissed. Approximately two months later (November 18, 1966) plaintiff filed the within 'Complaint For Declaratory Relief' (No 897996) and, relying on its 'Complaint For Declaratory Relief' in the first lawsuit (No. 886078) to constitute the claim required under Government Code sections 900 et seq., alleged that it had presented its claim to the County and the same had been denied. (Para. X.) Supporting affidavits establish that within the past three years no claims of any nature have been filed with the Board of Supervisors by plaintiff against defendant District, and that all claims filed by plaintiff with the Auditor-Controller, County of Los Angeles, were in connection with its construction work and have been paid, and no additional claims have been filed.

It is undisputed that no conventional written claim was filed by plaintiff against defendant District with the Board of Supervisors under Government Code sections 900 et seq.; appellant simply seeks to substitute therefor the complaint in its first lawsuit (No. 886078) which was dismissed for its inability to allege the filing of a claim with the Board. Appellant asserts that inasmuch as the complaint contained all of the elements required by sections 900 et seq., it constitutes such claim in substantial compliance with the statute, and if said complaint was not sufficient the County was required to so advise it under sections 910.8 and 911; and in any event, defendant should be estopped from asserting that a claim was not made 'since (it) did not raise the issue in (its) original answer or demurrer in the second complaint, No. 897996, as (it) had done in the original complaint.'

Thus the real issue is whether service on defendant District of 'Complaint For Declaratory Relief' which initiated plaintiff's first lawsuit (No. 886078) later dismissed for its failure to allege that a claim had been filed with the Board, constitutes the presentation of a claim to the Board of Supervisors required under the provisions of Government Code sections 900 et seq. If it does not, the failure to file a claim is fatal to the within cause. (Tietz v. Los Angeles Unified Sch. Dist., 238 Cal.App.2d 905, 911, 48 Cal.Rptr. 245; Illerbrun v. Conrad, 216 Cal.App.2d 521, 524, 31 Cal.Rptr. 27; Parker v. County of Los Angeles, 62 Cal.App.2d 130, 133, 144 P.2d 70.)

The doctrine of substantial compliance has frequently been invoked to validate a claim in fact filed under the claims statute, although incomplete or defective or presented to the wrong agency, where claimant has made a bona fide attempt to comply with the statutory requirements (Dillard v. County of Kern, 23 Cal.2d 271, 278, 144 P.2d 365, 150 A.L.R. 1048; Hall v. City of Los Angeles, 19 Cal.2d 198, 202, 120 P.2d 13; Adler v. City of Pasadena, 229 Cal.App.2d 518, 528, 40 Cal.Rptr. 373; Sheeley v. City of Santa Clara, 215 Cal.App.2d 83, 86, 30 Cal.Rptr. 121; Johnson v. City of Los Angeles, 134 Cal.App.2d 600, 602, 285 P.2d 713; Cruise v. City & County of San Francisco, 101 Cal.App.2d 558, 559, 225 P.2d 988; Perry v. City of San Diego, 80 Cal.App.2d 166, 169, 181 P.2d 98; Silva v. County of Fresno, 63 Cal.App.2d 253, 257, 146 P.2d 520) but we know of no case in which it has been invoked to cure an omission to file a claim. The doctrine of substantial compliance cannot be predicated on a complete failure to comply with the mandates of the claims statute. In Hall v. City of Los Angeles, 19 Cal.2d 198, 120 P.2d 13, appellant, who had filed a claim against the city but therein failed to specify the place of the accident, argued that the notice substantially complied with the requirements of the claims statute and that the city was not misled by her failure to designate the place since city officials through investigation had discovered it. 'In each of these cases (relied upon by appellant) there was compliance with all of the requirements enumerated by the statute, but the manner of complying with one of them was defective. The courts have held that a defect in the form of compliance is not fatal so long as there is substantial compliance with the essentials of the requirement. In the present case, however, there is an entire failure on the part of the plaintiff to comply with one of the mandates of the statute. Substantial compliance cannot be predicated upon no compliance. A contrary holding would permit a claimant to bring suit against a city on the basis of a claim that included none of the information required by the statute if he offered to show that the city acquired the information independently of the claim. Such a holding would emasculate the statute.' (p. 202, 120 P.2d p. 15.) Apposite is McGranahan v. Rio Vista etc. Sch. Dist., 224 Cal.App.2d 624, 36 Cal.Rptr. 798. Therein plaintiff minor failed to file a claim within ninety days after sustaining an eye injury as required by former section 1007, Education Code; thereafter complications arose and the eye was removed. '(P)laintiff concedes that no formal claim as prescribed by Education Code section 1007 was addressed to the district within the 90 day period, but contends that the various school reports concerning the incident, his father's letter to the C.I.F. Protective Fund, a copy of which was sent to Mr. Hale of the school district, and the written claim filed with the protective fund contained all information required by the district for investigation and possible settlement and thus constituted substantial compliance. The courts have not always required strict compliance where a defective notice clearly apprises the public agency of essential information (citations), but the cases so holding have involved actual attempts to comply with the statutory requirements. Typical examples are improper verifications, unclear descriptions of the place of the accident, or filing with the wrong county agency. Here, not only was there a failure to file any claim but the affidavits indicate that the plaintiff had no intention of holding the district for general damages until the boy's injury worsened, long after the 90 day period expired. Under these circumstances, the doctrine of substantial compliance is not applicable.' (p. 629, 36 Cal.Rptr. p. 801.)

Likewise, if in fact no claim was filed, plaintiff cannot assert a duty on the part of the County to notify it of 'insufficiency of claim' under sections 910.8 and 911, Government Code, ⁴ or of its failure to file a claim or advise it to do so. (McGranahan v. Rio Vista etc. Sch. Dist., 224 Cal.App.2d 624, 630, 36 Cal.Rptr. 798.) ⁵ On its face the statute requiring the Board to give a claimant notice of 'insufficiency of claim' implies the prior presentation of such claim.

At this point we note that appellant submits that 'after the service of the original complaint the Board of Supervisors made an order denying The claim on June 8, 1966 * * *.' The implication that a claim was in fact...