Harvey v. City of Holtville

• Decision Date: 14 July 1967
• Citation: Harvey v. City of Holtville, 252 Cal.App.2d 595, 60 Cal.Rptr. 635 (Cal. App. 1967)
• Court: California Court of Appeals
• Parties: Darlene HARVEY, by her Guardian ad litem, Murray L. Harvey, Plaintiff and Appellant, v. CITY OF HOLTVILLE, a municipal corporation, Defendant and Respondent. Civ. 8505.

Page 635

60 Cal.Rptr. 635

252 Cal.App.2d 595

Darlene HARVEY, by her Guardian ad litem, Murray L. Harvey, Plaintiff and Appellant, v.CITY OF HOLTVILLE, a municipal corporation, Defendant and Respondent.

Civ. 8505.

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

July 14, 1967.

Reynoso, Fidkin & Duddy, El Centro, for plaintiff and appellant.

Ewing & McKee, El Centro, for defendant and respondent.

OPINION

COUGHLIN, Associate Justice.

Plaintiff, Darlene Harvey, a minor, appeals from an order denying her petition, filed pursuant to former Government Code § 912, requesting permission to present a late claim against the defendantCity of Holtville.

Plaintiff brought the instant action to recover damages for injuries allegedly caused by the dangerous and defective condition of property owned by defendant.A condition precedent to the maintenance of such an action, under the law applicable at the time, was the presentation of a claim by or on behalf of the injured person 'not later than the 100th day after the accrual of the cause of action.'(Govt.Code §§ 910,911.2,945.4)Plaintiff's injuries were sustained on March 29, 1964 when she was 5 years of age.No claim was presented within the 100 day period.On March 29, 1965 her father, acting on her behalf as her 'natural guardian', filed an application with the city council of the defendant City pursuant to former Government Code Sections 911.4and911.6 for leave to present a late claim.Under these code sections application to present a late claim might be made 'within a reasonable time not to exceed one year after the accrual of the cause of action'; and the city council was directed to grant the application where the person who sustained the alleged injury was a minor.As required by law the proposed claim was attached to the application.(Govt.Code(1963)§ 911.4.)Among other things, the claim recited: 'All notices or other communications with regard to this claim should be sent to claimant at c/o Don R. Work, Attorney at Law, 634 State Street, El Centro, California.'Thereafter Mr. Work, at the address aforesaid, received a letter from the city clerk dated April 13, 1965 which stated:

'This acknowledges receipt of the claim of Carolyn Darlene Harvey against the City of Holtville in the amount of $10,744.00.At its meeting last evening, the Council by ResolutionNo. 950 denied the claim and referred it to the city's insurance carrier.'

The statute then existing required commencement of suit upon a claim against a city within six months after the claim was acted upon by the city council.(Govt.Code(1963)§ 945.6.)On June 25, 1965, plaintiff, through her father as guardian ad litem, filed the instant action.Subsequently demurrers by the defendant to the complaint and amended complaint were sustained.It appears the contention urged by defendant through its demurrers was the complaint did not allege the presentation of a claim within the time prescribed by the statute.

On December 13, 1965plaintiff, through her guardian ad litem, filed a petition in the instant action, pursuant to former Government Code § 912, applying for leave to present a late claim against defendant.Under that Sectionthe court was directed to grant leave to present a late claim if it found the claimant was a minor who had applied to the city council for such leave within a reasonable time and the application had been denied.However Section 912 provided the petition to the Superior Court'shall be filed within 20 days after the application to the board (city council) is denied or deemed denied.'Compliance with this 20 day requirement was mandatory and jurisdictional.(Dominquez v. County of Butte, 241 Cal.App.2d 164, 167, 50 Cal.Rptr. 448.)The court was not authorized to consider a petition filed after expiration of the 20 day period.(Ibid.)Plaintiff, in her petition, alleged facts she contends estop the City from asserting her failure to file it within a prescribed time as a ground for denial.In substance, she contends the letter from the city clerk stating her claim had been denied constituted a representation her application to file a late claim had been granted and in reliance thereon she did not file her petition with the Superior Court forthwith.Defendant contends the estoppel issue may not be raised in the instant proceedings but, if at all, only in support of plaintiff's cause of action.There is merit to this contention.

It is fundamental that jurisdiction may not be conferred upon a court by estoppel.(Estate of Hanley, 23 Cal.2d 120, 123, 142 P.2d 423, 149 A.L.R. 1250;Kientz v. Harris, 117 Cal.App.2d 787, 791, 257 P.2d 41;cf.Ransome-Crummey Co. v. Superior Court, 188 Cal. 393, 398, 205 P. 446;Marshall-Stearns Co. v. Deneen Bldg. Co., 169 Cal. 229, 233, 146 P. 684.)

The record before us indicates the action is pending.As the facts presented on this appeal are pertinent to plaintiff's cause of action insofar as they affect the claim presentation requirement, it is proper to dispose of questions that may arise in considering this issue.

In the...