Los Angeles City Sch. Dist. v. Superior Court

• Decision Date: 08 July 1970
• Citation: 88 Cal.Rptr. 286,9 Cal.App.3d 459
• Court: California Court of Appeals Court of Appeals
• Parties: LOS ANGELES CITY SCHOOL DISTRICT and Board of Education of the City of Los Angeles, public entities, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Tommy HARVEST, and Tommy Harvest, by and through his Guardian ad Litem Ira A. Harvest, Real Party in Interest. Civ. 35985.

Page 286

88 Cal.Rptr. 286

9 Cal.App.3d 459

LOS ANGELES CITY SCHOOL DISTRICT and Board of Education of the City of Los Angeles, public entities, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Tommy HARVEST, and Tommy Harvest, by and through his Guardian ad Litem Ira A. Harvest, Real Party in Interest.

Civ. 35985.

Court of Appeal, Second District, Division 5, California.

July 8, 1970.

As Modified July 14, 1970.

Hearing Denied Sept. 3, 1970.

Veatch, Carlson, Dorsey & Quimby, Robert C. Carlson, William W. Huss, Jr. and Henry F. Walker, Los Angeles, for petitioners.

No appearance for respondent.

Hecker & Kenealy and James N. Kenealy, Jr., Hollywood, for real party in interest.

SELBER, ^* Associate Justice Pro Tem.

Petitioners, public entities, seek a writ of mandate and/or prohibition to compel the respondent superior court to vacate its orders, or to restrain the enforcement thereof, granting relief to real party in interest under Government Code, section 946.6.

The question presented herein is one of first impression and may be stated as follows:

Where a minor claims to have received personal injuries imposing liability therefor upon a public entity and no claim is presented within 100 days of the accrual of his cause but an application to the public entity is made within one year thereof for leave to present a late claim, which application is denied, does respondent superior court, based on the injured youth's status as a minor, have jurisdiction to grant a petition for relief from the provisions of Government Code, section 945.4 where such petition is not filed until more than three years after denial of the application for leave to present a late claim despite the provision of Government Code, section 946.6 which requires that 'The petition (to the court) shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to (Gov.Code) Section 911.6'?

In setting forth the facts of this case, for convenience we refer to petitioner as defendants and to real party in interest as plaintiff. ¹ Plaintiff alleges that he sustained personal injuries on June 3, 1966, while on the premises of San Fernando Valley State College and that as a result thereof he has been rendered a quadraplegic. At all times relevant to the cause of action involved herein plaintiff was a minor. ² No claim was filed with defendants within the statutory 100-days period following the injury. (§ 911.2). On the 117th day after his injury, plaintiff applied to defendants for leave to present a late claim, alleging that he had failed to comply with section 911.2 because he had been a minor and physically incapacitated during the entire 100-day period. (§ 911.4.) As required by statute (§ 911.4 subd. (b)) plaintiff attached a proposed claim to his application. ³ There is no contention that the contends of the claim are insufficient or inadequate. Defendants denied the application of plaintiff for leave to file a late claim and notified plaintiff of the denial on November 7, 1966. (§ 911.6.)

On November 14, 1966, plaintiff petitioned the respondent court for leave to present a late claim to defendants. That petition purported to be filed pursuant to former section 912, which, however, had been repealed in 1965. (Stats.1965, c. 653, p. 2011, § 5.) Not until July 25, 1969, did plaintiff serve defendants with notice of a hearing on the petition. Upon defendants' motion, the proceeding was dismissed on November 5, 1969. Plaintiff appealed from the order of dismissal, and his appeal is now pending in this court. The appeal is in superior court case No. 897423.

On June 15, 1967, plaintiff filed a complaint for personal injuries against defendants. That action was dismissed as to all defendants, without prejudice.

On December 23, 1969, plaintiff filed the document which gives rise to the present controversy: a petition for relief from the provisions of section 945.4 pursuant to section 946.6. On January 13, 1970, respondent court granted the petition.

In their petition for mandate and/or prohibition, defendants contend that the respondent court acted in excess of its jurisdiction in granting the relief sought by plaintiff, since his petition was not filed within six months after defendants had denied plaintiff's application for leave to present a late claim. (§ 946.6 subd. (b).) ⁴ It is defendants' position that the time prescribed by section 946.6 is mandatory and jurisdictional.

Plaintiff argues, on the other hand, that under the rationale of Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 68 Cal.Rptr. 297, 400 P.2d 497, the six-month limitation period contained in section 946.6 subdivision (b) was tolled during plaintiff's minority by the operation of Code of Civil Procedure, section 352, ⁵ and that therefore his petition was timely. We agree with plaintiff.

In the Williams case, Supra, the plaintiff alleged he was injured by the negligent acts of the agents of the defendant, public entity. The plaintiff, a minor, filed a timely claim with the defendant and thereafter filed his action for damages more than six months after the defendant rejected the claim. Section 945.6 requires commencement of an action within six months of the rejection of a claim. The sole question before the court was whether the plaintiff had brought his lawsuit on time. The Supreme Court, in holding for the plaintiff, reasoned that the cause of action was one against a public entity for which a claim must be presented and as such covered by Code of Civil Procedure, section 342 which is found within chapter 3 of part 2, title 2, of that code. Section 352 controls actions by minors which are mentioned in chapter 3, and thus the time limitation for the commencement of such an action is tolled as to a minor during his minority.

In seeking a writ in the instant case, defendants contend that this proceeding against public entities seeking relief from the requirements of the claim statutes, is not an Action but rather a presentment of a Claim and therefore a procedure which falls within section 313 Code of Civil Procedure, ⁶ as distinguished from an action under section 342 of that code. By attempting to transform the proceeding from an action, to a presentment of a claim, defendants seek to avoid the reasoning and the rule of law established by Williams. Defendants' argument for this position is based on the facts that section 946.6 is located within Division 3.6 of the Government Code which is specifically mentioned by section 313 Code of Civil Procedure, and that as section 313 is in chapter 1 of the Code of Civil Procedure, not chapter 3, the tolling provision of section 352 Code of Civil Procedure is not applicable. The difficulty with this position is that it does not recognize that section 945.6 is also located within Division 3.6 of the Government Code and that, as noted, the court in Williams found that section to be subject to the tolling provision of section 352 Code of Civil Procedure.

The precise question of whether section 946.6 is subject to section 352 Code of Civil Procedure appears to be unsettled by judicial interpretation. The one case involving an analogous factual situation expressly left the inquiry open. (Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716, 727, 82 Cal.Rptr. 84.)

Plaintiff does not dispute that section 946.6 can only be asserted by a minor, who can satisfy the court that he has complied with those sections dealing with the presentment of claims. (Gov.Code, §§ 910, 911.2, 911.4 and 911.6.) Our courts have so held. (Williams v. Los Angeles Metropolitan Transit Authority, Supra; RIDLEY V. CITY AND COUNTY OF SAN FRANCISCO (1969) 272 CAL.APP.2D ---, 77 CAL.RPTR. 199;^A Artukovich v. Astendorf (1942) 21 Cal.2d 329, 131 P.2d 831.

Of course in Williams the claim was timely filed and then rejected. In Artukovich no claim was ever presented by the minor to the public entity. In Ridley, the minor presented his claim after the statutory 100-day period had elapsed. However, no application was ever made by the minor for leave to present the claim under section 911.4. The court held that without a proper filing and rejection of the claim, no right accrues to seek relief in the courts. It should also be noted that the court in Ridley states at page 344, 77 Cal.Rptr. at page 200: 'If such an application (to present a late claim) is made by a minor, in the absence, at least, of special circumstances, it must be granted. (Gov.Code, § 911.6; Tammen v. County of San Diego, 66 Cal.2d 468, 479--480, 58 Cal.Rptr. 249 426 P.2d 753 * * *)' In the cited case of Tammen the court reversed an order of the Superior Court of San Diego County denying a petition of a minor to file a late claim against the county for damages for wrongful death. At pages 479--480, 58 Cal.Rptr. at pp. 256--257, 426 P.2d at pp. 760--761, the court states as follows:

'Third. Did the court abuse its discretion in denying the petition of the minor?

'Yes. The language of the statute is mandatory, in that the superior court Shall grant relief if it finds that the minor's application to the board was made within a reasonable time not to exceed one year after the accrual of the cause of action.

'* * *

'The Legislature's intent not to require strict adherence to inflexible time limits is manifested by its providing both administrative and judicial remedies for persons under a disability or excusably neglectful who fail to comply with the 100-day period, and its intent to further protect the rights of minors is evinced in the more liberal 1963 claims act.

'Under former section 716 (Gov.Code), leave to present a claim after the statutory time limit expired was authorized only on a finding by the court that the public entity would not be unduly prejudiced thereby. Under the 1963 act, where the claimant is a minor, it is wholly immaterial that the public...