Edgington v. County of San Diego

• Decision Date: 14 April 1981
• Citation: 173 Cal.Rptr. 225,118 Cal.App.3d 39
• Court: California Court of Appeals Court of Appeals
• Parties: Gary Lee EDGINGTON, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents. Civ. 22198.

Page 225

173 Cal.Rptr. 225

118 Cal.App.3d 39

Gary Lee EDGINGTON, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.

Civ. 22198.

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

April 14, 1981.

As Modified April 28, 1981.

Hearing Denied July 29, 1981.

Peter J. Mueller and Mueller & Abbott, Escondido, for plaintiff and appellant.

Donald L. Clark, County Counsel, San Diego, Lloyd M. Harmon, Jr., Chief Deputy and Phillip L. Kossy, Deputy, San Diego, for defendants and respondents.

TODD, Associate Justice. ^*

Gary Lee Edgington (Plaintiff) appeals from a summary judgment for defendants County of San Diego and three county law The complaint was filed on August 3, 1978, generally alleging the County was liable for the actions of two deputy sheriffs and a county marshal for abusing their authority when arresting the plaintiff on August 5, 1977, at Poway, California.

enforcement officers (County) ordered by the Superior Court on August 7, 1979. The judgment is affirmed.

The crux of the County's summary judgment motion, and of this appeal, is that the complaint was barred by the statute of limitations included in section 945.6, subdivision (a)(1), of the Government Code ¹ in that the complaint was filed one day too late after receipt of the notice of the rejection of a claim filed earlier with the County.

The complaint alleged injury to the plaintiff when he was arrested in Poway, California, on August 5, 1977. The plaintiff had presented an administrative claim to the County under sections 905 and 945.4, which was denied by the County on January 25, 1978. The County's written notice rejecting plaintiff's claim was deposited in the mail, first-class, certified, with a return receipt requested on February 2, 1978.

It was mailed to the address shown on the plaintiff's claim, which was the address of the plaintiff's attorney. The lawyer's secretary signed the postal return receipt on February 3, 1978.

The plaintiff's attorney stated in declarations accompanying the opposition to the County's motion for summary judgment that he thought the statute of limitations began to run on the date his secretary signed for the notice, and accordingly noted on his desk calendar to file his client's complaint no later than August 3, 1977.

The plaintiff's tort claim against the County was rejected by the County and written notice of that rejection was deposited in the mail. Six months and one day after such deposit, the plaintiff's counsel filed suit against the County. The superior court entered summary judgment against the plaintiff on the ground that it was untimely filed. The plaintiff has appealed from that summary judgment.

The issues presented are whether the rejection notice complied with section 915.2, and whether the plaintiff's complaint was timely filed under section 945.6, subdivision (a)(1). ²

Article 3, section 5, of the California Constitution provides that, "Suits may be brought against the state in such manner and in such courts as shall be directed by law." (Emphasis added.) Although reference is only to the state, the provision includes its political subdivisions. (Hayashi v. Alameda County Flood Control (1959) 167 Cal.App.2d 584, 587, 334 P.2d 1048.)

In the Tort Claims Act (§ 900 et seq.), the Legislature has carefully prescribed the time and manner of filing claims against the public entities, and the conditions under which they may be sued. (See City of L. A. v. County of L. A. (1937) 9 Cal.2d 624, 629, 72 P.2d 138.)

Section 945.6, subdivision (a)(1), provides that if an entity gives written notice of rejection of the claim in accordance with section 913, ³ suit must be brought not less

than six months after the date such written notice was either (1) personally delivered or (2) deposited in the mail to the claimant.

I

Initially, the plaintiff's counsel contends section 915.2 must be read to exclude certified mail with a return receipt requested. By using those postal services in addition to first class mail to send the notice of rejection, plaintiff claims the county failed to comply with section 915.2. We find this argument has no merit and hold certified mail with a return receipt requested may be used in addition to first class mail to comply with section 915.2.

We find support for this in Call v. Los Angeles County Gen. Hosp. (1978) 77 Cal.App.3d 911, 143 Cal.Rptr. 845. The trial court had ruled a claim presented by the plaintiff to the defendant public entity had not been timely filed and sustained a demurrer without leave to amend. The court held failure to use Code of Civil Procedure section 1013a, proof of service, precluded application of that portion of section 915.2 making notice effective upon deposit in the mail.

The Court of Appeal reversed, noting the plaintiff had used certified mail with a return receipt requested for evidence of the timely deposit in the mail. The court stated:

"Whether or when the claim was deposited in the mail is a question of fact (cf. Miller v. Cortese, 136 Cal.App.2d 47, 48 (288 P.2d 297)) and the return receipt is better evidence of the fact than the proof of mailing by the permissive method of affidavit or certification." (Call v. Los Angeles County Gen. Hosp., supra, at p. 917, 143 Cal.Rptr. 845.)

An appellate court will not disturb the factual findings of a trial court where they are supported by substantial evidence. Accordingly, we hold use of certified mail with a return receipt requested in addition to the use of first class mail satisfies section 913.

In this case, the plaintiff was not prejudiced in any manner by the use of the additional postal services of the certified mail. His attorney received the written rejection the next day after it was deposited in the mail. ⁴

Code of Civil Procedure 1013, subdivision (a), giving an extra five days for a recipient to act to make allowances for the uncertainties of mail delivery, does not apply. (Smith v. City and County of San Francisco (1977) 68 Cal.App.3d 227, 137 Cal.Rptr. 146.)

II

Next, we turn to the plaintiff's contention his complaint was filed in superior court in timely fashion. This, too, has no merit.

Declarations filed in opposition to the County's motion for summary judgment show that plaintiff's attorney waited until what he thought was the last possible date on which to file his client's complaint, and had marked his desk calendar accordingly. He made an error, and as was said in Hunter v. County of Los Angeles (1968) 262 Cal.App.2d 820, 822, 69 Cal.Rptr. 288: "In effect (appellant is asking) us to rewrite the Tort Claim Act of 1963."

We are asked to interpret, for the first time, what the statute means when it says in section 945.6, subdivision (a)(1), personally delivered or deposited in the mail. Plaintiff's counsel urges his client's written rejection notice was personally delivered We begin with the fundamental rule that a "court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Citation.)" (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.) In determining such intent, "(t)he court turns first to the words themselves for the answer." (People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1, cert. den. 340 U.S. 879, 71 S.Ct. 117, 95 L.Ed. 639.) We are required to give effect to statutes "according to the usual, ordinary import of the language employed in framing them." (In re Alpine (1928) 203 Cal. 731, 737, 265 P. 947.) "(A) construction making some words surplusage is to be avoided (citation)." (Watkins v. Real Estate Commissioner (1960) 182 Cal.App.2d 397, 400, 6 Cal.Rptr. 191.) "When used in a statute (words) must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear." (Johnstone v. Richardson (1951) 103 Cal.App.2d 41, 46, 229 P.2d 9.) With these principles in mind, we turn to the statute.

when it was handed to his secretary by the postal employee who secured her signature on the return receipt card.

The current language was part of a 1970 amendment to section 945.6, subdivision (a)(1). The Law Revision Commission Comments to the amendment discuss the running of the statute of limitations:

"The triggering date generally will be the date the notice is deposited in the mail or personally delivered to the claimant, at which time the claimant will receive a warning that he has a limited time within which to sue and a suggestion that he consult an attorney of his choice. See Government Code Section 913. No time limit is prescribed within which the public entity must give the notice, but the claimant is permitted six months from the date that the notice is given to file suit."

In Smith v. City and County of San Francisco, supra, 68 Cal.App.3d 227, 230, 137 Cal.Rptr. 146, we are reminded that "(t)he prescribed statutes of limitations for commencement of actions against the state 'are mandatory and must be strictly complied with ....' (Citations.)"

According to plaintiff's counsel, we are asked to interpret section 945.6, subdivision (a)(1), to read that an action must be commenced six months from the date the public entity deposits the rejection notice in the mail by first class delivery only, and six months and one day if it is by first class, certified with a return receipt requested. As we said in Smith, supra, such an interpretation "obviously does violence to any reasonable sense of semantics." (68 Cal.App.3d at p. 231, 137 Cal.Rptr. 146.)

As Professor Reed Dickerson said in The Interpretation and Application of Statutes (Little, Brown and Company, 1975),

"(I)t is presumed that one part of a statute is not intended to contradict another part of the same statute.... (I)t is based ... on the observed fact that inconsistency almost always frustrates rather than advances human purposes, including those that motivate the enactment of statutes." (Id., at p. 224.)

Further, we are guided by Professor...