Harvey v. City of Holtville

• Decision Date: 14 April 1969
• Court: California Court of Appeals Court of Appeals
• Parties: Darlene HARVEY, by her guardian ad litem, Murray L. Harvey, Plaintiff and Appellant, v. CITY OF HOLTVILLE, California, Defendant and Respondent. Civ. 9195.

Page 795

76 Cal.Rptr. 795

271 Cal.App.2d 816

Darlene HARVEY, by her guardian ad litem, Murray L. Harvey, Plaintiff and Appellant, v. CITY OF HOLTVILLE, California, Defendant and Respondent.

Civ. 9195.

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

April 14, 1969.

Reynoso & Duddy and John D. Duddy, El Centro, for plaintiff and appellant.

Ewing, McKee & Kirk and Russell J. Kirk, El Centro, for defendant and respondent.

OPINION

COUGHLIN, Associate Justice.

Plaintiff appeals from a judgment of dismissal following an order sustaining defendant's general demurrer to her amended complaint seeking damages for injuries proximately caused by the dangerous condition of defendant's property.

It appears the contention urged by defendant through its general demurrer was the complaint did not allege the presentation of a claim within the time prescribed by Government Code Section 911.2 or the extended time provided by Sections 911.4 and 911.6. The court sustained the demurrer and granted plaintiff 20 days to amend. Thereupon plaintiff petitioned the court, pursuant to former Government Code Section 912, for leave to file a late claim after denial of application for permission to file such, made pursuant to Government Code Section 911.4. The court denied this petition on the ground it had not been filed within the time prescribed by statute. Plaintiff appealed from this order which was affirmed by this court on July 14, 1967. (Harvey v. City of Holtville, 252 Cal.App.2d 595, 60 Cal.Rptr. 635.) Facts pertinent to the issues on appeal now before this court appear in our opinion on the prior appeal.

On August 28, 1967, which was 14 days after our decision in the former appeal became final, plaintiff filed a notice of motion for a reconsideration of the ruling of the trial court sustaining the general demurrer to her amended complaint and for an order extending the time within which she might amend. This motion was denied. Thereafter judgment of dismissal, based on the order sustaining the general demurrer and failure of plaintiff to file an amendment within the 20 days granted, was entered. Plaintiff appeals contending (1) the order sustaining the general demurrer was error; and (2) the order denying plaintiff additional time within which to amend also was error.

The briefs in this case give the impression the controversy is between the attorneys rather than between the parties. We disregard references to the ineptness of counsel and other derogatory remarks as immaterial to a determination of the issues on their merits.

The allegations in the amended complaint with respect to presentation of the claims are as follows:

'That within a year after the accrual of the Cause of Action herein stated in this Complaint, Plaintiff, by her guardian ad litem, presented an application for leave to present a late claim with the Defendants, and each of them; said application was accompanied by Plaintiff's claim against said Defendants, and each of them, resulting of her injuries arising from the incidents set forth in this complaint; that the application for leave to present late claim was based on the grounds that Plaintiff was a minor during all of the time specified for the presentation of the claim; that Section 911.6(b) California civil procedure Code states 'The board Shall grant the application under such circumstances'. Thereafter, within six month prior to the bringing of this Complaint, Plaintiff was notified in writing of the denial of her claim by Defendants, and each of them.'

Apparently the trial court concluded the foregoing allegations did not show presentation of the claim within the time required by law because it was not alleged plaintiff's application for leave to present a late claim had been granted. Although not expressly alleged, the fact her application had been granted is supplied by inference or implication from the allegations she applied for leave to present a late claim, her application was accompanied by her claim, and defendant denied the claim. In our former opinion, anticipating further proceedings in the case, we stated:

'If the city council denied plaintiff's claim it acted upon the claim. The authority to act was premised upon presentation within the time allowed by statute. By its action the council impliedly granted plaintiff's application to make a late presentation.'

A general demurrer admits not only the facts expressly alleged but also facts essential to a cause of action which the facts alleged supply by implication or inference. (Semi-Tropic Spiritualists' Ass'n v. Johnson, 163 Cal. 639, 642, 126 P. 488; McKay v. New York Life Ins. Co., 124 Cal. 270, 272, 56 P. 1112; City of Santa Barbara v. Eldred, 108 Cal. 294, 297--298, 41 P. 410; Amestoy v. Electric Rapid Transit Co., 95 Cal. 311, 314--315, 30 P. 550; Greenstone v. Claretian Theological Seminary, Claretville, 173 Cal.App.2d 21, 32, 343 P.2d 161; Gallagher v. California Pac. Title & Trust Co., 13 Cal.App.2d 482, 486, 57 P.2d 195; see also Matteson v. Wagoner, 147 Cal. 739, 742, 82 P. 436.)

Although both parties cite and rely upon the rule a general demurrer may be determined only upon the facts supported by the allegations in the amended complaint, unconnected with extraneous matters (Griffith v. Department of Public Works, 141 Cal.App.2d 376, 381, 296 P.2d 838), defendant asserts on appeal the insufficiency...