Pacific Tel. & Tel. Co. v. County of Riverside

• Decision Date: 27 May 1980
• Parties: The PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a California Corporation, Plaintiff, v. COUNTY OF RIVERSIDE, etc. et al., Defendants and Respondents. Dorothy Mae Lambert, Intervenor and Appellant. Civ. 21287.
• Court: California Court of Appeals Court of Appeals

Page 29

165 Cal.Rptr. 29

106 Cal.App.3d 183

The PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a California Corporation, Plaintiff, v. COUNTY OF RIVERSIDE, etc. et al., Defendants and Respondents Dorothy Mae Lambert, Intervenor and Appellant.

Civ. 21287.

Court of Appeal, Fourth District, Division 2, California.

May 27, 1980.

Hearing Denied Aug. 6, 1980.

Edward Coley, Orange, for intervenor and appellant.

Thompson & Colegate, J. E. Holmes, III, Riverside, and Herbert F. Blanck, Encino, for defendant and respondent County of Riverside.

KAUFMAN, Associate Justice.

On March 25, 1977, two employees of the Pacific Telephone and Telegraph Company (employer) were killed in a vehicle accident in the County of Riverside. One of the employees was J. S. Lambert, the husband of appellant Dorothy Mae Lambert (widow). Employer filed an action against the County of Riverside (County) to recover workers' compensation benefits paid on account of the death of its employees. Widow's complaint in intervention in the employer's action was dismissed after County's demurrer was sustained without leave to amend. Widow appeals.

The employer timely filed a claim against the County asserting that a dangerous condition of the roadway on which the accident occurred was a proximate cause of the accident describing the circumstances surrounding the accident and claiming the right to recover $55,000 in death benefits paid to the survivors of each of its deceased employees and burial expense in the amount of $1,000 paid to the survivors of each decedent. The County rejected the claim, and the employer timely filed an action in Riverside Superior Court to recover damages, including inter alia reimbursement of $112,000 in benefits paid to the survivors of its deceased employees.

Although widow did not present a claim to the County nor petition to file a late claim, nevertheless, on December 28, 1978 21 months after the accident she filed a complaint in intervention for wrongful death in the employer's action against the County. She asserted the same theory of liability and alleged the same facts as those alleged in the employer's complaint. With respect to compliance with the government claims statute, she alleged the employer's compliance.

The County demurred to widow's complaint on the ground that she had failed to allege compliance with the claims filing requirement (Gov.Code, §§ 911.2, 945.4). The trial court sustained the demurrer without leave to amend and entered judgment of dismissal.

On appeal, widow admits that her failure to file a claim is not excused by any of the exceptions to the claims statute enumerated in Government Code sections 905, 905.1 and 905.3. She contends, however, that the claim filed by the employer substantially complied with the claims filing requirement as to her action for damages for wrongful death.

Compliance with the claims statute is mandatory, and failure to file a claim is fatal to the cause of action. (City of San Jose v. Superior Court, 12 Cal.3d 447, 454, 115 Cal.Rptr. 797, 525 P.2d 701.) Where there has been an attempt to comply but the compliance is defective, the test of substantial compliance controls. Under this test, the court must ask whether sufficient information is disclosed on the face of the filed claim "to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit. . . ." (Id., at p. 456, 115 Cal.Rptr. at p. 803, 525 P.2d at p. 707.) However, it has repeatedly been held that " '(s)ubstantial compliance cannot be predicated upon no compliance.' " (Id., quoting Hall v. City of Los Angeles, 19 Cal.2d 198, 202, 120 P.2d 13; Johnson v. City of Oakland, 188 Cal.App.2d 181, 183, 10 Cal.Rptr. 409.) Thus, widow's failure to allege that she filed any claim, defective or otherwise, would appear to preclude her from invoking the doctrine of substantial compliance.

Widow contends on three different grounds that either the rule forbidding application of the substantial compliance doctrine is inapplicable in this case or that the claim filed by the employer satisfied the claims statute as to her action for wrongful death.

I. Class Action Theory

Widow argues that the action of the employer for recovery of benefits paid to the survivors of its decedent employees was brought pursuant to Labor Code sections 3850, 3852 and 3853 and that, as such, it was "tantamount to a class action," in which the class was comprised of all persons and entities described in Labor Code section 3850 and the common question (or community of interest) defined by Labor Code section 3852 and 3853. Under City of San Jose v. Superior Court, supra, 12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 56, the claims statute is satisfied with respect to a class if the representative of the class files a claim which complies with the requirements of the claims statute (see infra ). Therefore, widow argues, the claim filed by the employer satisfied the claims filing requirement as to all members of the class, including widow. We cannot agree.

The action brought by the employer in this case is authorized and provided for by Labor Code sections 3850, 3852 and 3853. These sections provide:

(§ 3850. Definitions)

"As used in this chapter:

"(a) 'Employee' includes the person injured and any other person to whom a claim accrues by reason of the injury or death of the former.

"(b) 'Employer' includes insurer as defined in this division."

(§ 3852. Action against third persons; Recovery by employer)

"The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, may likewise make a claim or bring an action against such third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he was liable including all salary, wage, pension, or other emolument paid to the employee or to his dependents."

(§ 3853. Notice to the other where action is by employer or employee: Joinder as party plaintiff or consolidation of actions)

"If either the employee or the employer brings an action against such third person, he shall forthwith give to the other written notice of the action, and of the name of the court in which the action is brought by personal service or registered mail. Proof of such service shall be filed in such action. If the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently."

In general, chapter 5 (§§ 3850-3864) of division 4, part 1 of the Labor Code defines the rights of action of an employee and an employer where a third party is alleged to be responsible for the employee's injury. Together these sections enable both the employee and the employer to recover all their damages in a single action in which the third party's liability " 'for all the wrong his tortfeasance brought about' " is determined. (County of San Diego v. Sanfax Corp., 19 Cal.3d 862, 872-873, 140 Cal.Rptr. 638, 642, 568 P.2d 363, 367, quoting Smith v. County of Los Angeles, 276 Cal.App.2d 156, 162, 81 Cal.Rptr. 120.)

The prerequisites to a class action are an ascertainable class and "a well defined community of interest in the questions of law and fact involved affecting the parties to be represented . . . ." (Darr v. Yellow Cab Co., 67 Cal.2d 695, 704, 63 Cal.Rptr. 724, 731, 433 P.2d 732, 739; see 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 181, pp. 1853-1854.) Widow maintains that pursuant to Labor Code section 3850, she and the employer were members of a class and that their common interest was established by "the claim (authorized by Labor Code §§ 3852 and 3853) . . . by an employer seeking damages occasioned by the death of two employees requiring Workers' Compensation and Death Benefits to be paid to survivors . . . ."

We do not reach these questions. Assuming arguendo that the employer filed a claim as a representative of a class including the employee as defined in section 3850, it does not follow that the claim for damages filed by the employer satisfied the claims statute with respect to another member of the class who suffered different damages as a result of the same tortious event. In City of San Jose v. Superior Court, supra, 12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 701, the court held that a class claim must pass two successive tests to comply with the claims statute. First, there must be "some compliance with all the required elements . . . ," i. e., "the class claim must provide then name, address, and other specified information concerning the representative plaintiff and then sufficient information to identify and make ascertainable the class itself." (Id., at pp. 456-457, 115 Cal.Rptr. at pp. 803-804, 525 P.2d at pp. 707-708; emphasis in original.) Beyond this, the claim must also satisfy the substantial compliance test. (Id., at p. 457, 115 Cal.Rptr. 797, 525 P.2d 701.)

Widow argues that the claim filed by the employer constituted substantial compliance with the claims statute insofar as the claim for wrongful death was concerned because "the policy behind the claim requirement has been substantially satisfied." In support of her contention, she cites Rowan v. City etc. of San Francisco, 244 Cal.App.2d 308, 312, 53 Cal.Rptr. 88, 91:

"The plain purpose of the notice statutes was to inform the public body of the accident upon which a claim for damages was based, to permit its agents to investigate the facts as to the time, place and condition of the premises and thus decide whether the case should be settled or litigated. The courts have been liberal in requiring nothing...