O'Brien v. City of Santa Monica

• Decision Date: 11 September 1963
• Citation: 220 Cal.App.2d 67,33 Cal.Rptr. 770
• Parties: Harriette L. O'BRIEN, Petitioner and Respondent, v. CITY OF SANTA MONICA, Defendant and Appellant. Civ. 27187.
• Court: California Court of Appeals Court of Appeals

Page 770

33 Cal.Rptr. 770

220 Cal.App.2d 67

Harriette L. O'BRIEN, Petitioner and Respondent, v. CITY OF SANTA MONICA, Defendant and Appellant.

Civ. 27187.

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

Sept. 11, 1963.

Hearing Denied Nov. 6, 1963.

Robert G. Cockins, City Atty., Robert D Ogle, Asst. City Atty., James H. Baggaley

and Dennis Fredrickson, Deputy City Attys., for appellant.

Buchalter, Nemer, Fields & Savitch, Los Angeles, by Stephen Chrystie, Los Angeles, for respondent.

LILLIE, Justice.

Plaintiff, a passenger on a bus operated by the City of Santa Monica, was injured on Cotober 19, 1961, when the driver closed the door on her head and knees. On August 15, 1962, she filed a petition for leave to file a claim against the City under section 716, Government Code; it was denied by minute order of August 29, 1962. On October 15, 1962, plaintiff moved the court to reconsider, vacate and set aside the order denying the petition, and grant leave to file her claim; the motion was granted on October 19, 1962, and the court vacated the August 29th order, restored petition to the calendar, and granted the same and leave to file claim. From this order the City appeals. Its first contention is that the August 29th minute order denying the petition was final and appealable, thus, the court acted in excess of its jurisdiction in ruling upon and granting the motion to reconsider.

While an order denying petition for leave to file a claim under section 716, Government Code, is final and appealable (Thompson v. County of Fresno, 59 Cal.2d 686, 31 Cal.Rptr. 44, 381 P.2d 924), it does not preclude the trial court from reconsidering and setting it aside on a proper motion, timely made. (Harth v. Ten Eyck, 16 Cal.2d 829, 108 P.2d 675; Bice v. Stevens, 160 Cal.App.2d 222, 325 P.2d 244.) In all ordinary motions it is in the discretionary power of the court hearing and denying a motion to grant leave for its renewal, and 'this discretion will not be interfered with, except in cases of palpable abuse.' (Hitchcock v. McElrath, 69 Cal. 634, 635, 11 P. 487; Johnston v. Brown, 115 Cal. 694, 47 P. 686; Mission Film Corp. v. Chadwick P. Corp., 207 Cal. 386, 278 P. 855; Tiffany Productions, Inc. v. Superior Court, 131 Cal.App. 729, 22 P.2d 275.) The court can permit renewal of a motion even though it has been previously denied on its merits (Hover v. MacKenzie, 122 Cal.App.2d 852, 266 P.2d 60; Harth v. Ten Eyck, 16 Cal.2d 829, 108 P.2d 675; Dahlen v. Moon, 141 Cal.App.2d 1, 296 P.2d 344; Bice v. Stevens, 160 Cal.App.2d 222, 325 P.2d 244); and, unlike the final determination of an action or proceeding by judgment, the decision on an ordinary motion is not res judicata and the court has jurisdiction to reconsider it. (Johnston v. Brown, 115 Cal. 694, 47 P. 686; Harth v. Ten Eyck, 16 Cal.2d 829, 108 P.2d 675; Tiffany Productions Inc. v. Superior Court, 131 Cal.App. 729, 22 P.2d 275.) Although in many of the above cases both motions were made under section 473, Code of Civil Procedure, the principle is the same as herein where the motions were made under section 716, Government Code, both statutes being remedial in nature and entitled to a liberal construction.

After denial of her petition plaintiff filed, not a new application, as under section 1008, Code of Civil Procedure, (even the requirements of this section do not go to the jurisdiction of the court to entertain a second motion [Andersen v. Superior Court, 187 Cal. 95, 200 P. 963; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627, 150 P.2d 881; Moore v. Moore, 133 Cal.App.2d 56, 283 P.2d 338; Radlinski v. Superior Court, 186 Cal.App.2d 821, 9 Cal.Rptr. 73]), but, a motion to reconsider petition, vacate and set aside order denying petition and grant leave to file her claim. The trial court in its discretion determined to reconsider the matter and heard and ruled on the motion as a renewal of the petition; thus we treat the order of October 23, 1962, granting the same, vacating the order of August 29, 1962, and restoring the petition to the calendar, as tantamount to permission to renew the original petition. (Harth v. Ten Eyck, 16 Cal.2d 829, 108 P.2d 675; Bice v. Stevens, 160 Cal.App.2d 222, 325 P.2d 244.) On the power of the trial court to reconsider its denial of a motion in the absence of a different showing, the court in Harth v. Ten Eyck, 16 Cal.2d 829, 108 P.2d 675, said: 'Although the second motion was called a motion to reconsider, the reasonable import of the action of the court * * * is that the court considered it a renewal of the motion to set aside its previous order of denial and to grant the original motions. * * * With the motion then before it the court had the power to dispose of it and to set aside the order of dismissal.' (16 Cal.2d pp. 832, 833, 108 P.2d p. 677.) To the same effect is Bice v. Stevens, 160 Cal.App. 222, 325 P.2d 244; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627, 634, 150 P.2d 881; Beyerbach v. Juno Oil Co., 42 Cal.2d 11, 29, 265 P.2d 1; Hover v. MacKenzie, 122 Cal.App.2d 852, 857, 266 P.2d 60; Stephens v. Baker & Baker Roofing Co., 130 Cal.App.2d 765, 773, 280 P.2d 39; Dahlin v. Moon, 141 Cal.App.2d 1, 4, 296 P.2d 344. In Majors v. Co. of Merced, 207 Cal.App.2d 427, 24 Cal.Rptr. 610, a similar argument was made; the court disposed of it as follows: 'Respondent observes that the time for an appeal cannot be extended by the mere repetition of identical motions, but here the second motion was a renewal of the first with the implied consent of the court (Tiffany Productions, Inc. v. Superior Court, 131 Cal.App. 729, 737-738), 22 P.2d 275 and the court had jurisdiction to hear it (Andersen v. Superior Court, 187 Cal. 95, 102, 200 P. 963), from which it follows that the appeal was properly taken from the second ruling. (Bice v. Stevens, 160 Cal.App.2d 222, 325 P.2d 244; Harth v. Ten Eyck, 16 Cal.2d 829, 832-833 ; Hover v. MacKenzie, 122 Cal.App.2d 852, 857, 266 P.2d 60.)' (207 Cal.App.2d p. 435, 24 Cal.Rptr. 615.)

Thus, the court, in its discretion, having determined to reconsider the matter, and having the renewal motion before it on the conflicting affidavits already on file, its power then to weigh the conflicts and dispose of the petition was the same as upon its first consideration thereof; its power to resolve the conflicts was not exhausted by its conclusions on the order denying the petition, but it had the power to re-examine the evidence and arrive at a different conclusion, if it thought the ends of justice would be best served thereby. Whether the truth and right of the matter lay with the plaintiff or with the City 'might not appear so clear on a first examination of the facts presented. A more thorough examination might, and in fact did, lead to a contrary conclusion.' (Harth v. Ten Eyck, 16 Cal.2d 829, 834, 108 P.2d 675, 678.)

Appellant's final contention is that plaintiff failed to prove, 'as conditions precedent' to relief under section 716, that the City will not be unduly prejudiced, that she was physically incapacitated during such time as she should have filed her claim, and that she failed to file it by reason of such disability. (A.O.B., p. 5.)

The verified petition alleges plaintiff's age as 77, and the time, place and manner in which she was injured; that she suffered 'serious physical and mental trauma' therefrom and 'has been hospitalized or bedridden since the time of said occurrence, giving specific places and dates constituting a continuous six-month period; that during the six months permitted under the Charter for filing her claim she was 'physically incapacitated' and by reason of such disability unable to file the same; that the City 'was informed concerning the time, place and nature of the occurrences which gave rise to' her claim and 'that the granting of this petition will not unduly prejudice the City.' Her claim for damages in the sum of $27,129.06 was attached thereto. Supporting the petition was the affidavit of Frank Koops, plaintiff's son-in-law, alleging that on her behalf he contacted the City on the day after the accident (October 20, 1961) and was referred to Bay Cities Adjustment Co.; that he reported the 'full nature and extent of the occurrences giving rise to the claim of Harriette L. O'Brien, as then known to him,' to Mr. Barrett, manager of Bay Cities; that on October 23, 1961, Barrett by letter (Ex. A) acknowledged his call and 'this claim' and that thereafter in several conversations with Barrett he was informed that plaintiff's claim was under consideration. Barrett's letter to Koops dated October 23, 1961, (Ex. A) acknowledged his telephone conversation of October 20, and advised that he was enclosing 'medical report forms to be duly completed by Dr. J. Robert Tolle, physician for your mother-in-law, Mrs. Harriett O' Brien,' and that he would contact Koops 'to further discuss this claim' upon their receipt.

In opposition were two affidavits: Meyer, the bus driver, asserted that the door of the bus closed 'apparently striking' plaintiff knocking off her glasses; that she said the door hit her knee; and that inasmuch as her glasses were not damaged, he observed no injury, she made no complaint, and she walked away without help, he failed to obtain the names of witnesses whom he cannot now identify. Barrett, contractor adjuster for the City, alleged that Koops called him on October 20, 1961, indicating 'possible injury to plaintiff'; that on October 23, he forwarded to Koops medical report forms but received no reaponse until March 7, 1962; that on March 20, 1962, he received completed forms from the doctor, which was the first positive evidence he had that Mrs. O'Brien had been injured; that had he known of her injury he would have had her examined immediately; and that because of their failure to respond and return the reports Bay Cities was lulled into the belief that plaintiff suffered no injury.

Three declarations support plaintif...