Bahten v. County of Merced

• Citation: 130 Cal.Rptr. 539,59 Cal.App.3d 101
• Court: California Court of Appeals
• Decision Date: 15 June 1976
• Parties: Eric BAHTEN and Ben Bahten, Plaintiffs and Appellants. v. COUNTY OF MERCED, Defendant and Respondent. Civ. 2547.

Page 539

130 Cal.Rptr. 539

59 Cal.App.3d 101

Eric BAHTEN and Ben Bahten, Plaintiffs and Appellants. v. COUNTY OF MERCED, Defendant and Respondent.

Civ. 2547.

Court of Appeal, Fifth District, California.

June 15, 1976.

Walkup, Downing & Sterns, Robert A. Seligson, San Francisco, for plaintiffs and appellants

McCormick, Barstow, Sheppard, Coyle & Wayte, Lawrence E. Wayte and James P. Wagoner, Fresno, for defendant and respondent.

OPINION

GOLDSTEIN, ^* Associate Justice (assigned).

STATEMENT OF THE CASE AND FACTS

On October 6, 1972, appellant Eric Bahten, (herein plaintiff), a student at the Los Banos High School was severely and permanently disabled at the result of injuries sustained by him while participating as a representative of his school in a football game against a team from another high school. His parents did not seek legal advice until almost one year after his injuries.

On September 27, 1973, after consultation with a lawyer, a petition was presented pursuant to the provisions of section 911.4 of the Government Code to the Merced County Board of Supervisors for leave to file a late claim against said county. Attached to said petition (as required by said section) was a verified claim alleging that minor was injured as a proximate result of (1) negligence of high school authorities and others in charge of the football game, and (2) negligence of the high school authorities and others in the medical care and treatment of said injuries. The Board of Supervisors took no action on such petition. Pursuant to section 911.6 of the Government Code, it was deemed denied, by operation of law, 45 days after its presentment to the Board.

On October 1, 1973, plaintiff Eric Bahten, a minor, petitioned the Superior Court of Merced County for the appointment of his father, Ben Bahten (herein plaintiff and guardian ad litem) as his guardian ad litem for the purpose of prosecuting an action on behalf of said minor arising from the above injuries. On the same date, plaintiffs filed in the Merced County Superior Court a complaint against a number of named defendants, including the respondent (herein defendant) County of Merced, alleging negligence in the medical care and treatment of said minor subsequent to his football injuries. The complaint contained no allegation of compliance with the Government Code provisions requiring that claims for money damages against a public entity be presented to such entity within one hundred days after the occurrence that gave rise to such claim. (Gov.Code, § 945.4.)

On March 8, 1974, plaintiffs presented to the Merced County Superior Court a petition for an order relieving them from compliance with the claims presentation provisions of Government Code section 945.4 (Gov.Code § 946.6.) The motion was granted on April 5, 1974.

On June 25, 1974, plaintiffs filed their first amended complaint alleging the prior order relieving them from compliance with section 945.4 of the Government Code, and two separate causes of action: (a) a cause of action for negligent medical care of the injuries suffered by said minor in the football game; and (b) an action charging defendants with negligence in the management, control, and supervision of the football game itself.

On August 29, 1970, the defendant County of Merced, filed a motion to strike the first amended complaint. Concurrently therewith said defendant also filed a demurrer to said first amended complaint. The motion, as well as the demurrer, were based on identical grounds, namely, that the complaint failed to state a cause of action against the defendant County. On October 9, 1974, the court granted the motion to strike said first amended complaint and sustained the demurrer without leave to amend. Judgment was entered on October 24, 1974, dismissing plaintiffs' complaint against the defendant County of Merced, only. Plaintiffs have appealed from said judgment.

THE LAW

There is no dispute between the parties as to the dates when the foregoing various petitions were presented, denied or granted, or when the pleadings were filed in this case. The underlying and dispositive issue to the determined is whether the plaintiffs' first amended complaint is barred and a nullity by reason of the fact that it was filed More that 30 days after the court made its order relieving the plaintiffs from compliance with the claim presentation requirements of section 945.4 of the Government Code.

At common law public entities were, in general, immune from suit. The Tort Claims Act enacted in 1963, with subsequent amendments, permits suits to be filed against public entities where compliance is shown with prescribed statutory conditions and limitations imposed by the Tort Claims Act. Among the foregoing conditions is the requirement that a claim be presented to the public agency within one hundred days after the occurrence giving rise to the claim. (Gov.Code, § 911.2.) The statute further requires that the Board approve or reject the claim within 45 days after its presentment, or, in the event of the failure of the Board to act on the claim within said 45 day period, it is deemed rejected by operation of law.

The statute then addresses itself to those cases in which a claim is Not filed within the one hundred day period. In such cases the claimants are given the right to petition the public entity for leave to present a Late claim. The statute requires that such petition be filed within a reasonable time and in any event not later than one year after the accrual of the cause of action. It is also necessary to attach to the petition a copy of the proposed claim. The one year limitation period applies equally to adults and to minors. (Gov.Code, § 911.4.) Government entities are required either to grant or deny such petition within 45 days after its presentation, or, in the alternative, if no action is taken thereon, it is deemed denied by operation of law after the expiration of 45 days. (Gov.Code, § 911.6.)

As an additional protection to claimants the Tort Claim Act provides that it the petition be denied or deemed denied under the provisions of Government Code section 911.6, claimants may Within six months after such denial file in the Superior Court a petition to be relieved from compliance with section 945.4 (the claims filing section), provided that the court finds: (1) that the application for such leave was filed within a reasonable time or not more than one year after denial by the public entity of the petition to file a late claim; (2) That the person who sustained the injury was a minor during the period specified for the presentation of claims; (3) that a showing was made that the failure to file the claim was a result of mistake, inadvertence, surprise or excusable neglect. (Gov.Code, § 946.6.) The public entity is accorded the right to establish in opposition to such position that its rights would be prejudiced by the granting of such application, and the court, upon such showing, has the right to deny the application. (Gov.Code, § 946.6, subd. (c)(1).)

The statute providing for the foregoing procedures further provides that 'suit on the cause of action to which the Claim relates must be filed in such court within 30 days' after the granting of said petition. (Gov.Code, § 946.6, subd. (f).)

The record shows:

(1) That plaintiffs' petition to the Board to file a late claim, to which was attached a copy of their proposed claim, was timely filed with the Board of Supervisors on September 27, 1973, and that the original complaint was filed four days later, on October 1, 1973, in the office of the Clerk of Merced County.

(2) That the first amended complaint was filed on June 25, 1974, 45 days after the court made its order relieving plaintiffs from compliance with the Claims Statute.

The defendant contends: (i) that since the right to sue a public entity exists only by governmental fiat, the conditions and limitations imposed by such a statute are 'mandatory, and strict compliance therewith is required.' (Stanley v. City and County of San Francisco (1975) 48 Cal.App.3d 575, 579, 121 Cal.Rptr. 842; Chas. L. Harney, Inc. v. State of California (1963) 217 Cal.App.2d 77, 90, 31 Cal.Rptr. 524.) (ii) That Government Code section 946.6 which requires that suit be brought on the cause of action described in the claim within 30 days after plaintiff is relieved from compliance with the claims statutes also should be strictly construed. (iii) That plaintiffs' amended complaint was filed 45 days after the granting of said petition. (iv) It completes the syllogism by stating that the original complaint was a nullity because it did not state a cause of action, and it was superseded with the filing of the amended complaint; that the amended complaint was also a nullity, because it was filed after the expiration of the 30--day period and therefore no cause of action remains on which a claim against the County of Merced can be prosecuted.

Plaintiffs contend, to the contrary, that Government Code section 946.6 requires Only that suit be brought on the cause of action to which the claim relates 'within thirty days,' after the order is made relieving the plaintiff from compliance with Government Code section 945.4. They further contend that in cases such as the one at bar, Where the complaint was actually on file when the order granting such relief was made, such prematurely filed complaint satisfies the provisions of subdivision (f) of section 946.6 of the GovernmentCode, and the filing of a new pleading is unnecessary. We agree.

COMPLIANCE WITH THE TORT CLAIMS ACT IS A PROCEDURALPREREQUISITE; IT NEITHER CREATES, NOR IS AN ELEMENT OF A CAUSE OF ACTION FOR TORT AGAINST A GOVERNMENT ENTITY.

Radar v. Rogers (1957), 49 Cal.2d 243, 317 P.2d 17, involved the Probate Code provisions requiring the presentation to and rejection of claims by the legal representative of the estate as a condition precedent to suit on such claims. In Radar, plaintiff had filed...