Dettamanti v. Lompoc Union School Dist. of Santa Barbara County

• Decision Date: 08 August 1956
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth Ann DETTAMANTI, a minor, by Henry Dettamanti, her guardian ad litem, Plaintiff and Appellant, v. The LOMPOC UNION SCHOOL DISTRICT OF SANTA BARBARA COUNTY, a school district and August Anderson, Defendants and Respondents. Civ. 21303.

Page 78

300 P.2d 78

143 Cal.App.2d 715

Elizabeth Ann DETTAMANTI, a minor, by Henry Dettamanti, her guardian ad litem, Plaintiff and Appellant, v. The LOMPOC UNION SCHOOL DISTRICT OF SANTA BARBARA COUNTY, a school district and August Anderson, Defendants and Respondents.

Civ. 21303.

District Court of Appeal, Second District, Division 3, California.

Aug. 8, 1956.

W. P. Butcher, Frank R. Crandall, Santa Barbara, for appellant.

Marion A. Smith, Santa Maria, for respondents.

SHINN, Presiding Justice.

Elizabeth Ann Dettamanti, a minor, by her father as her guardian ad litem, instituted the present action against The Lompoc Union School District of Santa Barbara County and August Anderson. She sued for compensation for injuries received through the allegedly negligent conduct of the defendants. She alleged that she was eight years of age, was a passenger in a school bus of the district operated by Anderson; that the bus was brought to a stop in the City of Lompoc, the door of the bus was opened and she was directed to leave the bus; that the bus was headed north, she lived on the westerly side of the street; that Anderson knew she would have to cross the street; that two automobiles were stopped behind the bus, one being driven by a minor girl; that he permitted her to enter the street unescorted; that she was struck by the automobile driven by said young girl and that the conduct of Anderson in failing to warn her or to escort her across the street was negligent and was the proximate cause of serious injuries which she received.

The accident occurred on the 28th day of October, 1953. Plaintiff's father was appointed her guardian ad litem August 10, 1954. On June 28, 1954 plaintiff's father filed on her behalf with the clerk of the school district and presented to Anderson a verified written claim concerning the fact and details of the accident; the claim was rejected by the Board of Trustees of the district on or about July 12, 1954 by failure to take any action thereon.

Defendants filed a general demurrer which also specified that the action was barred by the provisions of sections 1980, 1981 and 2003 of the Government Code and section 1007 of the Education Code. The demurrer was sustained without leave to amend and judgment of dismissal was entered. Plaintiff appeals. The sole ground of the court's ruling was that plaintiff had failed to file a verified claim with the defendant school district and defendant Anderson within the time provided by section 1007 of the Education Code and sections 1981 and 2003 of the Government Code and had failed to allege sufficient facts to excuse strict compliance with those sections. ¹

The facts alleged upon which plaintiff relies to excuse her failure to file a claim in time are the following: During the month of November, 1953, Henry Dettamanti consulted with Lawrence C. Grossman, an attorney at law, practicing at Lompoc, for the purpose of employing him to represent plaintiff as her attorney in seeking compensation for her injuries and stated to Grossman the circumstances in which plaintiff had suffered her accident; that said Grossman was at the time a deputy district attorney of Santa Barbara County and prior to Henry's consultation with him had fully investigated the accident and examined the written reports of the police officers of the city of Lompoc who had investigated the accident; that prior to the time of said consultation said Grossman, as deputy district attorney, had filed a criminal complaint against the driver of the automobile that struck plaintiff; that he knew the school bus was owned by the Lompoc Union School District and that August Anderson was in the employ of the district as the bus driver and he knew that when the bus was stopped to permit plaintiff to alight Anderson did not at any time leave the bus or assist or escort plaintiff across the street and said Grossman further knew from the police reports that Anderson was aware of the fact at that time that there were two automobiles stopped behind the bus and that the driver of the first automobile was a minor girl of tender years. It was alleged that said Grossman did not inform Henry that a valid cause of action existed against the school district or against Anderson nor did he inform Henry that he might possibly have such cause of action; he did not inform Henry that he should file a verified written claim against the school district nor did he mention the term 'verified written claim' nor the necessity for filing same in order to protect the rights of the minor; he did not inform Henry that he should seek other counsel for the reason that he, Grossman, was a deputy district attorney and as such legally obligated to represent the school district and that, therefore, he could not represent Henry or plaintiff in any claim they might have against the school district. Nevertheless, said Grossman agreed to and did undertake the representation of Henry and plaintiff and agreed to attempt to effectuate a recovery from the owner of the automobile; that within 90 days after the happening of the accident the attorney effected a recovery from the owner of the automobile in the amount of $139 of which he retained $34.75 for his fee and remitted the balance to Henry; that the settlement on behalf of the minor was not approved by any court; that at no time while said Grossman was representing Henry and his daughter did Henry know or realize that the daughter had a valid cause of action or even a probable or possible cause of action against the school district and Anderson; at the suggestion of friends Henry later consulted another attorney after the expiration of 90 days following the accident and was advised by said attorney that any action against the school district was barred for failure to file a claim. The claim was filed later when plaintiff engaged the services of her present counsel.

In ruling upon the demurrer the trial judge referred to Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323; Cruise v. City and County of San Francisco, 101 Cal.App.2d 558, 225 P.2d 988, and commented that in all the recent cases in which delay in filing a claim was held excusable some governmental agency or its representative had prevented the filing of a claim in time by some affirmative action. From the court's memorandum filed at the time of the ruling we learn that the court was of the opinion that it was advisable that 'the very interesting question of law herein involved be placed before the Appellate Court for its determination', before the parties should be required to incur the expenses of a trial.

The leading case on the subject is Farrell v. County of Placer, supra, 23 Cal.2d 624, 630, 145 P.2d 570, 573, 153 A.L.R. 323, in which the court stated: 'Although it has been repeatedly held that compliance with the appropriate claim statute is mandatory and an essential requisite to plaintiff's cause of action, nevertheless the time element with respect to the filing of the claim is essentially procedural in nature [citations] and is analogous to a statute of limitation. [Citations.] It has been intimated by some authorities that the claim statute is the measure of the power of the governmental agency in paying the tort claims involved, and hence any deviation from that procedure cannot be dispensed with by waiver, estoppel, or otherwise. That conclusion, at least with respect to the time of filing the claim, is not supported by the statute or reason. The various reasons advanced for the adoption of the claim statute, that is, to afford the agency an opportunity to investigate the merits of the claim, and to arrive at a settlement, thus avoiding litigation, are not inconsistent with the view that the statute is not the measure of the power. From the standpoint of the agency it has general power to pay claims arising from the liability imposed by the public liability act. Hence the filing of the claim within ninety days, while mandatory upon the claimant and a condition precedent to his cause of action, is nothing more than a procedural requirement as to the agency, which, as to the claimant, may be excused by estoppel.' Other cases are: Peters v. City and County of San Francisco, 41 Cal.2d 419, 260 P.2d 55, where plaintiff filed a signed copy of the claim with the clerk of the board of supervisors, rather than the notarized original, having filed the original with the city controller; Mendibles v. City of San Diego, 100 Cal.App.2d 502, 224 P.2d 42, where plaintiff filed the claim with the city auditor instead of the city clerk upon the advice of the Mayor of San Diego; Schulstad v. City and County of San Francisco, 74 Cal.App.2d 105, 168 P.2d 68, where the same act which injured plaintiff made him mentally incompetent to file a claim for some time beyond the allowable period; Tyra v. Board of Police, etc., Com'rs, 32 Cal.2d 666, 197 P.2d 710, where plaintiff failed to file a claim for a pension in reliance on statements by defendant and its attorneys to the effect that he was ineligible for a pension while he received workmen's compensation; Benner v. Industrial Acc. Comm., 26 Cal.2d 346, 159 P.2d 24, where plaintiff was told by the hospital, the insurance carrier and the employer to wait until her illness had been more fully investigated; Lorenson v. City of Los Angeles, 41 Cal.2d 334, 260 P.2d 49, where plaintiff was illegally suspended from the police force on unsubstantiated charges which he thought were legal charges, and where he relied on his superior's statements that he would not lose any salary and should wait until criminal proceedings against him were disposed of before making a claim for back salary; Cruise v. City & County of San Francisco, supra, 101 Cal.App.2d 558, 225 P.2d 988, where plaintiff gave a full report, including requested documents to defendant, and received a notice to file a claim by 4:00 p. m. on a certain day, which notice arrived after 4:00 p. m....