Kitchen v. Delafield

• Decision Date: 11 October 1963
• Citation: 34 Cal.Rptr. 288,221 Cal.App.2d 114
• Court: California Court of Appeals Court of Appeals
• Parties: Jessie Zenoba KITCHEN, Plaintiff and Appellant, v. Robert H. DELAFIELD, Defendant and Respondent. Civ. 20892.

Page 288

34 Cal.Rptr. 288

221 Cal.App.2d 114

Jessie Zenoba KITCHEN, Plaintiff and Appellant, v. Robert H. DELAFIELD, Defendant and Respondent.

Civ. 20892.

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

Oct. 11, 1963.

Vizzard, Baker, Sullivan & McFarland, by Allan H. McFarland, Bakersfield, for appellant.

Bledsoe, Smith, Cathcart & Johnson, by Robert A. Seligson, San Francisco, for respondent.

DEVINE, Justice.

Plaintiff appeals from a summary judgment in favor of defendant Robert H. Delafield. The judgment was granted on the ground that plaintiff, though obliged by statute to file claim under both section 801 and section 803 of the Government Code, had not complied with either of said sections. ¹

There is no dispute, for the present purpose, about the facts, which are set forth in the pleadings, answers to requests for admissions, certificates under penalty, and plaintiff's deposition. On August 21, 1958, an abdominal operation was performed on plaintiff, a patient at Mendocino County Hospital, by defendant, who was an employee of the hospital and who was acting in the scope of his employment. No other physician performed surgery on plaintiff. On July 2, 1959, plaintiff consulted another physician, and after X-ray, was advised by him that there was a surgical needle in her abdomen. She had not previously discovered this fact.

On September 21, 1959, plaintiff filed with the county clerk a claim: 'TO THE COUNTY OF MENDOCINO, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA, AND TO THE BOARD OF SUPERVISORS, AS THE GOVERNING BOARD OF SAID COUNTY OF MENDOCINO, AND TO W. J. BROADDUS, AS COUNTY CLERK OF THE BOARD OF SAID BOARD OF SUPERVISORS.' The claim states that it is filed in accordance with the provisions of sections 29704, 29705, 53052 and 53053 of the Government Code 'and other provisions of the laws of the State of California pertaining thereto.' The facts of the operation, the finding of the needle, damages and the like are stated. It is stated that the surgery was performed by 'Dr. Garfield, an agent of the said County and by other doctors as agents and representatives of the said County, the names of which are unknown to your claimant, but are well within the knowledge of said County.' The claim ends with demand upon the County of Mendocino in the sum of $75,000. It was rejected by the county on the day after it was filed.

Plaintiff had known that the surgeon was named Delafield, because he had visited her 'every morning' after the operation, and his name was on the foot of the bed, but had made a mistake 'in pronouncing his name,' as she said, to her attorney.

On September 24, 1959, three days after the filing of the claim, plaintiff's counsel wrote to the hospital stating that the firm represented plaintiff, a former patient, giving the date of the operation, stating that plaintiff had requested her medical file for examination by a physician, and offering to pay for photostating. The administrator of the hospital replied that he had been advised by the district attorney not to furnish the medical file, and saying, 'Please correspond with the District Attorney's office direct for any further information in this matter.'

No further demand, request or correspondence appears. At no time has a claim been presented to defendant. On March 25, 1960, complaint was filed. There is no mention in it of defendant's being an employee, and no mention of the county or its hospital. Nothing is said about filing of any claim.

In the Government Code there were, at all times relevant, two statutes relating to claims against public officers. This caused adverse comment from responsible sources (Van Alstyne, Claims Against Public Employees: More Chaos in California Law, 8 U.C.L.A.L.Rev. 497; Recommendation and Study Relating to the Presentation of Claims Against Public Officers and Employees, 3 Cal.Law Revision Comm'n, Rep., Rec. & Studies [1961]; Cal.Law Revision Comm'n Recommendation Relating to Sovereign Immunity, No. 2, p. 1015 [1963]), but the two statutes remained in the code until their recent repeal.

Until 1931, there was no statute setting a time limit upon claims against public employees. In that year, section 1981, which was renumbered 801, was adopted, which, stated generally, requires presentation to the public officer or employee whenever it is claimed that his negligence in the course of his employment caused injury. ² In Stewart v. McCollister, 37 Cal.2d 203, 208, 231 P.2d 48, it was held that the claim referred to in section 1981 (801) need not have been filed where plaintiffs did not 'in their pleadings or otherwise' charge that defendant had been acting in the scope of his employment, but defendant in his answer claimed that when the accident happened he was driving a car on city business.

Promptly the Legislature enacted section 2003, later section 803, of the Government Code, the effect of which was that an action against certain public employees (this section, unlike 801, did not apply to state employees, nor to local officers, as distinguished from employees) was barred unless a claim was filed with the employing entity, when in fact the employee was acting within the scope of his employment when the negligence occurred. ³

Appellant makes no contention that she complied with section 803. There is no allegation in the complaint of compliance with it. The position stated by counsel in the superior court and in opening and closing briefs here, is that the section does not apply to an action against an employee, but only to an action against a governmental entity. This is incorrect. The section by its terms is a bar to actions against employees. Counsel has been misled by the closing words 'as a condition to maintaining an action therefor against such governmental entity,' but these words are merely part of the description of the manner and time period for filing. Section 803, until its repeal, operated as an independent bar to an action against a public employee for negligence within employment, whether the issue of public employee is pleaded in the complaint or raised in the answer. (Chavez v. Sprague, 209 Cal.App.2d 101, 25 Cal.Rptr. 603.)

It is possible that appellant could have made a case for having filed a valid claim under section 803, at least, if she had chosen to seek to make some amendments to the claim. It could have been argued that despite the fact that the claim does not refer to section 803, but only to statutes...