Foster v. McFadden

• Decision Date: 28 February 1973
• Citation: 30 Cal.App.3d 943,106 Cal.Rptr. 685
• Court: California Court of Appeals Court of Appeals
• Parties: Allen FOSTER, Plaintiff and Appellant, v. John McFADDEN et al., Defendants and Respondents. Civ. 40039.

Page 685

106 Cal.Rptr. 685

30 Cal.App.3d 943

Allen FOSTER, Plaintiff and Appellant, v. John McFADDEN et al., Defendants and Respondents.

Civ. 40039.

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

Feb. 28, 1973.

Sterling, Clifton & Riseley and Robert Clifton for plaintiff and appellant.

Clausen, Gilliland & Fernandes and Edward G. Koelsche, Los Angeles, for defendants and respondents.

COBEY, Associate Justice.

Plaintiff, Allen Foster, appeals from a judgment in favor of defendants, County Sanitation District No. 2 of Los Angeles County and its employee, John McFadden, in his action for damages for personal injuries. The judgment is based solely on the conclusion of law that plaintiff failed to comply with the Governmental Claims Act. (Gov.Code, § 900 et seq.) ¹ The decisive legal question presented is whether a letter from plaintiff's attorney, erroneously addressed to 'John McFallon' at the office of the District, with a copy to the District at the same office (both of which apparently were received within the 100-day period for filing claims (see § 911.2)), was sufficient to invoke application of Government Code sections 910.8 and 911. We believe that it was and we therefore reverse.

Apparently on December 30, 1967 defendant McFadden, while operating a bulldozer in the course and scope of his employment by defendant District, struck and injured plaintiff. By the aforementioned letter, dated December 29, 1968, plaintiff's attorney wrote McFadden advising him of his client's name, the date and place of the accident and asking McFadden, if insured, to forward the letter to his insurance carrier and, if not insured, to contact the attorney at once and inform the attorney what he wished to do about the matter. The letter closed with the expressed hope that direct dealing between the parties would avoid the necessity for 'initiating formal proceedings.' ²

As previously indicated, a copy of this letter was mailed to the District and the District, instead of McFadden, responded to it. By letter dated March 12, 1968, the secretary of the Board of Directors of the District informed plaintiff's attorney of the name, address and telephone number of the District's insurance carrier and suggested that any further correspondence in connection with the matter be directed to the carrier. Inconclusive dealings regarding the matter thereafter ensued between the carrier and the plaintiff's attorney.

Plaintiff seeks reversal of the judgment against him on three grounds: (1) substantial compliance with the Claims Act; (2) estoppel of the District to assert noncompliance; (3) waiver by the District of the insufficiency of his claim (the letter of February 29, 1968).

The letter does not in content Substantially comply with the requirements of the Claims Act. ³ Furthermore plaintiff was not misled by the District as to the necessity for his filing a claim since prior to the District's replying to his attorney's letter of February 29, 1968, he filed an apparently sufficient claim with the wrong public entity, the City of Los Angeles. Consequently defendants are not estopped to assert their defense of plaintiff's noncompliance with the Claims Act.

This leaves as the sole issue meriting discussion the legal question whether the letter of February 29, 1968 should be treated as a claim for the purpose of making applicable the fundamental requirement of section 910.8 and the legal consequences of section 911. We refer to the requirement of section 910.8 that if, in the opinion of a board or its designee, a claim, as presented, fails to comply substantially with the Claims Act, the board or its designee must give written particularized notice to the claimant within 20 days of the claim's insufficiencies and that if this notice is not given, then under section 911 the public entity waives its defense of such insufficiencies.

It is true that the letter under discussion was not itself addressed to the District, is not labeled 'claim' and does not even contain the word 'claim.' But it clearly, if inferentially, suggests to its recipients, McFadden and the District, that plaintiff was injured by McFadden in the course and scope of McFadden's employment by the District in a recent accident occurring at a specified time and place and that therefore the writer of the letter, as plaintiff's attorney, desires either that McFadden refer the letter to his insurance carrier or, if McFadden be uninsured, that he inform the lawyer at once what he wishes to do about the accident. The District obviously construed the letter as being applicable to it because in reply to the letter it furnished plaintiff, through his attorney, with the information through which the attorney could then contact directly The District's insurance carrier.

In short, the letter performed the function of a claim. It told the District of a recent accident at a specified time and place involving a specified employee of the District. It inferentially requested that the District forward the letter to its insurance carrier. The District, by its reply to the letter, identified the letter for what it was--an unlabeled and deficient claim by plaintiff against the District for unstated damages for undescribed injuries he allegedly suffered in an identified but undescribed recent accident involving a specified employee of the District.

The California Law Revision Commission originated both sections 910.8 and 911 and their fundamentally identical 1959 predecessors (former sections 712 and 713). The Commission's consultant, Professor Arvo Van Alstyne, explained inferentially in his report to the Commission that the requirement of notice of insufficiency of presented claims was introduced to protect claimants whose claims did not substantially comply with the Claims Act, but which, nevertheless, were readily identifiable as claims. The Professor also intimated that such protection was needed because claims are often prepared by nonlawyers. (See 2 Cal.Law Revision Com.Rep. (1959) A--122--A--124.) The subsequently enacted Claims Act, however, did not and has never limited this additional protection of claimants solely to claims filed by non-lawyers. ⁴

The letter under consideration accomplished the two principal purposes of a sufficient claim. It afforded the District the opportunity to make a prompt investigation of the accident occasioning the letter and it gave to the District the opportunity to settle without suit, if it so desired. (See id. at p. A--7; Myers v. County of Orange, 6 Cal.App.3d 626, 637, 86 Cal.Rptr. 198.) We therefore hold that for the purpose of invoking sections 910.8 and 911 of the Claims Act the letter should be treated as a claim.

The judgment is reversed.

ALLPORT, J., concurs.

SCHWEITZER, Acting Presiding Justice (dissenting).

I dissent. I agree with the majority that plaintiff did not substantially comply with the provisions of the Claims Act, and that the District is not estopped to assert the defense of noncompliance. My dissent is directed solely at their conclusion that the letter of February 29, 1968 from plaintiff's attorney to 'John McFallon,' quoted in footnote 2 of the majority's opinion, constitutes a claim within the meaning of section 910.8, and that since the District gave no 'notice of insufficiency,' it has waived the defense of noncompliance. (§ 911.) In my opinion the facts support only one conclusion, that as of February 29, 1968 plaintiff's attorney did not intend that his letter be deemed a claim against the District. His intent as of that date is the crucial issue; the action taken by the District and its insurance carrier following receipt of the letter is irrelevant.

The letter of February 29, 1968 was addressed solely to 'John McFallon.' ¹ It asked Him to forward the letter to His insurance carrier, and if He did not carry insurance, for Him to notify plaintiff's attorney. Except for the date and place of an accident, the letter set forth no details with respect thereto. It did not identify 'McFallon' as an employee of the District, although it is reasonable to infer such intent since the letter was addressed to him at the District's office and a copy thereof was sent to the District. The letter did not indicate that 'McFallon' was involved in the purported accident while acting within the course and scope of his employment, although a claim thereof might be inferred; on the other hand, since the letter was not addressed to the District, it is just as reasonable to infer that 'McFallon's' involvement was personal and that the attorney merely wanted to alert 'McFallon's' employer of the incident. The letter made no claim or demand on the District; it requested no information from or action by the District; at most all that plaintiff did with respect to the District was to give it information of the date and place of an accident involving a person by the name of 'McFallon.'

Section 910.8 is expressly limited in application to situations where a defective claim is presented against a governmental entity; I find no indication therein, or in the legislative history cited by the majority (2 Cal. Law Revision Com.Rep. (1959) A--122--A--124) of an intent to make sections 910.8 and 911 applicable to a situation where, as here, no claim is presented against the governmental entity. As stated in Stromberg, Inc. v. L.A. County Flood etc. District, 270 Cal.App.2d 759, 764, 76 Cal.Rptr. 183, 187, 'if in fact no claim was filed, plaintiff cannot assert a duty on the part of the County to notify it of 'insufficiency of claim' under sections 910.8 and 911, Government Code (footnote omitted) or of its failure to file a claim or advise it to do so. (Citation.)'

My colleagues seek to distinguish Stromberg by asserting that the 'McFallon' letter 'performed the function of a claim. . . . It inferentially requested that the District forward the letter to its insurance carrier. The District by its reply to the letter,...