Dockter v. City of Santa Ana

• Decision Date: 12 April 1968
• Court: California Court of Appeals Court of Appeals
• Parties: Christine DOCKTER, Petitioner and Appellant, v. CITY OF SANTA ANA, a Municipal Corporation, Defendant and Respondent. Civ. 8629.

Page 686

67 Cal.Rptr. 686

261 Cal.App.2d 69

Christine DOCKTER, Petitioner and Appellant, v. CITY OF SANTA ANA, a Municipal Corporation, Defendant and Respondent.

Civ. 8629.

Court of Appeal, Fourth District, Division 2, California.

April 12, 1968.

[261 Cal.App.2d 70] Charles Garrity, Santa Ana, for petitioner and appellant.

Ruston & Nance, by Donald A. Ruston, Fullerton, for defendant and respondent.

OPINION

McCABE, Presiding Justice.

Petitioner noticed her appeal 'from that certain order and judgment' of denial on June 6, 1966, and a denial of her motion for reconsideration on September 23, 1966.

On February 9, 1966, petitioner filed with the City of Santa Ana an application for leave to present a late claim. In that application petitioner alleged she had a cause of action for personal injuries which occurred on September 14, 1965, and failure to file within the one hundred day period was through mistake, inadvertence, and excusable neglect, and the City of Santa Ana was not prejudiced by the delay. Attached to the application was a verified proposed claim alleging: the personal injury occurred on September 14, 1965, while she was attending an adult class given by the City of Santa Ana; she was engaged in using her own knitting machine when a defective table, supplied by the City, broke causing the knitting machine to fall on her leg resulting in injury to it; her general damages were $10,000 and the medical expenses were unascertained.

In a verified declaration, supporting the application and claim of February 9, 1966, petitioner again states the personal injury occurred on September 14, 1965, and further asserts: 'On the Thursday, following the accident, declarant telephoned the City Recreation Department, who referred her to the City's Insurance Carrier, Allstate Insurance Company. The manager of the Allstate Insurance Company sent an adjuster to speak with declarant, who said to her, 'Don't worry about anything, we'll take care of everything.' Declarant was not aware of the 100 day statute, and had not consulted an attorney for legal advice * * * Declarant felt that the insurance carrier * * * would take care of her case, however, she has now learned that she has permanent injury to her left lower extremity, and the insurance company * * * has refused to negotiate further on this matter. * * *'

Petitioner's application to the City for leave to present a late claim was denied on April 9, 1966.

On April 15, 1966, the petition for leave to present a late claim was filed in the Superior Court with a hearing noticed for April 29, 1966. The hearing dates in the Superior Court were continued from time to time until June 3, 1966, when the matter was submitted. A minute order of June 6, 1966, denied the petition.

In the interim between April 15 and June 6, petitioner filed two additional and supplemental declarations. In summary, these declarations contain statements conflicting within themselves and with prior declarations. The primary conflicts concern the date of the accident and conversations with various persons. Until the last supplemental declaration which was filed on June 6 (the date of the court's ruling), petitioner maintained the accident occurred on September 14, 1965, however, in the last supplemental declaration which was in the nature of one in opposition to declarations filed by and on behalf of the City, she stated, '* * * however, after reading Mr. Whitson's declaration, I do believe that the accident probably occurred in October rather than September of 1965.' By so stating, petitioner could not have called 'the Recreation Department on September 28, 1965' from the school office or reported the matter to Allstate Insurance Company on or about September 30 and the adjuster could not have come to see petitioner on or about October 1 and she could not have had several conversations with the adjuster from October 1.

For the first time in her petition to the court, petitioner sets forth specifics as to why no claim was filed within the 100 day statutory period. In re sume , these consist of statements that Allstate would settle the case upon completion of the medical treatment the continued inquiry by Allstate representatives as to her medical progress; between December 15 and 20, the Allstate representative upon being informed she would get an attorney, informed her not to get an attorney and he would be in touch with her after the Christmas Holidays; and it was not until about the middle of January 1966 that Allstate informed her it would not pay any money to her. There is no evidence or declaration as to when medical treatment was terminated.

In declarations in opposition, it appears the first contact by an Allstate representative was on November 1, 1965, On November 9, petitioner informed the representative she had incurred a medical bill of $10.00 and he attempted to settle the matter for $30.00, but was informed she would not settle and would not be 'intimidated or rushed' by Allstate. Petitioner had been involved in prior litigation and dealings with insurance companies, was experienced in her dealings and had been represented by an attorney in her previous case. 'For this reason she knew she did not have to settle, would not settle, and could control the settlement negotiations in her own good time.' Another offer to settle was made and refused. The latter offer was for $50.00. On November 11, the representative again attempted to settle the matter, informed petitioner the medical records did not appear to reveal a serious injury at which time he was informed she was going to retain an attorney, as she had in her automobile accident, and the case was not going to be pushed by the representative since his attempts and the company's attempt to settle the case were 'against God's way.' She would get an attorney to see the case was settled 'in accordance with God's will.'

From another opposition declaration, it appears that about November 15 petitioner called the Allstate office and requested a particular representative not contract her again. The only other contact with the declarant, Mr. Leeper, of Allstate, was in mid-March or early April 1966 in which petitioner sought to negotiate a settlement at which time she was informed there was no liability and the statute of limitations had run on this claim.

Another declarant in opposition, Mr. Earwicker, a supervisor for Allstate, first contacted petitioner at her apartment on December 10, 1965 to discuss her physical condition and determine if there were additional bills. On this contact for the first time Allstate learned petitioner claimed damage to her knitting machine and would, as to it, only settle for a new machine, although there was no evidence of damage, repair bill or whether it could be repaired. On December 17, in a telephonic conversation, petitioner informed Mr. Earwicker she had not seen a doctor again, nor obtained an estimate of damage to her knitting machine, but she would obtain estimates. On December 21, Mr. Earwicker contacted petitioner at her apartment and learned she had no verification of damage to the machine. He informed petitioner at that time no further consideration would be given to her matter until there was indication she was still being treated, and a verification of machine damage had been received and until Allstate had an indication from her as to a settlement amount. There were no further contacts or communication by anyone from Allstate with petitioner from December 21, 1965 until January 21, 1966, when petitioner talked to Mr. Earwicker by telephone. At that time he informed her Allstate having received nothing from her was not considering, and would not consider, her claim because no liability existed.

An opposing declaration of the attorney, representing the City, declared petitioner's signed statement establishes the accident occurred on October 14, 1965, and, basing his conclusion on this date, the 100 days to file a claim would terminate on January 22, 1966.

The order denying the petition was made on June 6, 1966, and entered on June 9, 1966. Respondent City served notice on petitioner on August 18, 1966, that the court on June 6, 1966, had denied the petition. On August 29, 1966, petitioner filed a motion for reconsideration which motion was heard on September 16, 1966, and ordered denied on September 23 but entered on September 27, 1966. The notice...