Petersen v. City of Vallejo

• Decision Date: 04 March 1968
• Citation: 259 Cal.App.2d 757,66 Cal.Rptr. 776
• Court: California Court of Appeals Court of Appeals
• Parties: Imogene PETERSEN, Susan B. Santini and Susan B. Santini as Administratrix of the Estate of Alma A. Petersen, Plaintiffs and Appellants, v. CITY OF VALLEJO and State of California, Defendants and Respondents. Civ. 24114.

Page 776

66 Cal.Rptr. 776

259 Cal.App.2d 757

Imogene PETERSEN, Susan B. Santini and Susan B. Santini as Administratrix of the Estate of Alma A. Petersen, Plaintiffs and Appellants, v. CITY OF VALLEJO and State of California, Defendants and Respondents.

Civ. 24114.

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

March 4, 1968.

Rehearing Denied March 26, 1968.

Hearing Denied May 1, 1968.

Werchick & Werchick, David P. Weaver, Jr., San Francisco, for appellants.

Goodman & Herbert, F. Richard Lucas, Fairfield, for respondent City of Vallejo.

Harry S. Fenton, Chief Counsel, Robert F. Carlson, Asst. Chief Counsel, Marc Sandstrom, Department of Public Works, Sacramento, for respondent State of California.

SIMS, Associate Justice.

Plaintiffs, the surviving widow of Alma A. Petersen, who seeks to recover damages for her own injuries, for the wrongful death of her husband and for loss of her car, and the surviving adult daughter, who, individually and as administratrix, seeks to recover damages for the wrongful death of her father have appealed from judgments entered in favor of the defendants City of Vallejo and State of California, following an order of the court which granted the City's motion for summary judgment and the State's motions for summary judgment, and for dismissal and to preclude evidence.

The action arises out of an automobile collision which occurred on March 19, 1961. In addition to the City and the State, the driver of another vehicle, the County of Solano, and named and fictitious defendants who allegedly worked on the street were joined as defendants. It is asserted with respect to the City and the State that the street at the scene of the accident was maintained in a dangerous condition. This appeal involves a review of the contention of both the City and the State that the daughter failed to file a timely claim either individually or as administratrix, the City's further contention that there is no triable issue as to any of plaintiffs because it did not have possession or control of the street at the scene of the accident at the time it occurred, the State's contention that the action was properly dismissed as to the surviving widow because it was filed prior to the formal rejection of her claim, and the State's further claim that the trial court properly dismissed the complaint because the plaintiffs failed to comply with discovery orders.

The pertinent facts are set forth in the discussion which follows. It is concluded that the daughter's action, individually or as administratrix is barred by her failure to file a timely claim with either the City or the State; that the court properly granted the City summary judgment because it did not have possession or control of the street at the scene of the accident; that it was error to dismiss the widow's suit because it was prematurely filed; but that the action was properly dismissed as to the State because of the plaintiffs' failure to comply with discovery orders. The judgments must be affirmed.

I. Claim of Susan Santini, the adult daughter, as surviving child and administratrix

Susan P. Santini is named individually, and as administratrix of Alma A. Petersen in the caption of the first amended complaint for damages, filed January 26, 1962, and made a part of the record on this appeal. A search of the allegations of the amended complaint reveals no reference to her appointment, qualifications or capacity to act. If she is properly before the court as administratrix, despite the lack of such allegations, the considerations which apply to her individually govern her rights as administratrix. It is alleged that she is an adult married person, and that she and her mother are the sole surviving heirs at law of her deceased father.

The eighth cause of action of this complaint purports to set forth a cause of action against the City of Vallejo for $250,000 for the wrongful death of Alma A. Petersen, on behalf of all the plaintiffs, widow, daughter and administratrix. The tenth cause of action contains similar allegations against the State of California. In neither of these causes of action is it alleged directly or by reference that a claim was filed with the respective public entity for the damages sought. However, in the second and fourth causes of action, in which the widow seeks damages for her own personal injuries against the City and the State, it is alleged that a claim was filed with each. The City by failure to deny these allegations in its answer filed April 25, 1962, admitted the filing of the claim and its disallowance. The State, in its answer filed March 6, 1964, admitted that a claim was filed May 18, 1961 and denied on September 19, 1961. It also expressly alleged that all plaintiffs' actions were barred by reason of failure to comply with the provisions of Government Code section 644; ¹ that plaintiff-daughter, both in her individual and representative capacity, failed to file a claim as provided by section 641 ² and section 644 of the Government Code; and that therefore her action in both capacities was barred.

The text of the claim of the widow has not been made a part of the record of the case on appeal, but it appears to be assumed that it included not only damages for her own personal injuries, but also her damages for the loss of her husband. Although the original complaint is not a part of the record, it was apparently filed on September 11, 1961, and served on the State on March 25, 1963. Appellants assert the complaint was served on the City in September 1961, the month it was filed.

According to the uncontradicted affidavits filed in support of the motions for summary judgment interposed by the State and the City, the daughter never filed any claim with the State, individually or in her representative capacity, and never filed any claim with the City prior to December 31, 1963. Under these circumstances, her action against the City is barred by the provisions of former sections 710 and 715 ³ of the Government Code, and her action against the State is precluded by the provisions of former sections 641 and 644. ⁴ The court properly granted the motions for summary judgment. (Gonzales v. Brennan (1965) 238 Cal.App.2d 69, 76, 47 Cal.Rptr. 501; Ruffino v. City of Los Angeles (1964) 226 Cal.App.2d 67, 70, 37 Cal.Rptr. 765; McGranahan v. Rio Vista, etc., School Dist. (1964) 224 Cal.App.2d 624, 631, 36 Cal.Rptr. 798; Redwood v. State of California (1960) 177 Cal.App.2d 501, 504, 2 Cal.Rptr. 714; and see Fidelity & Dep. Co. of Maryland v. Claude Fisher Co. (1958) 161 Cal.App.2d 431, 435--437, 327 P.2d 78; and Hall v. City of Los Angeles (1941) 19 Cal.2d 198, 203, 120 P.2d 13.)

The claimant seeks to avoid the effect of the foregoing principles upon the theory that the filing by the widow 'was implicitly on behalf of all heirs who might be entitled to share in any eventual recovery' and 'was sufficient so as to allow the State and City to fully exploit * * *' investigation and settlement of the claim. (See California Law Revision Commission, Recommendations Relating to Sovereign Immunity, 1008; and Van Alstyne, California Government Tort Liability (Cal.Cont.Ed.Bar 1964) § 8.5, pp. 361--362.) However, it is generally recognized that the mere fact the governmental entity has some notice or knowledge of the accident and possible claim, will not excuse failure of the claimant to file a timely claim as required by the statute. (See McGranahan v. Rio Vista, etc., School Dist., supra, 224 Cal.App.2d 624, 629, 36 Cal.Rptr. 798; and Redwood v. State of California, supra, 177 Cal.App.2d 501, 504, 2 Cal.Rptr. 174.)

There is nothing in the record to indicate that the mother, as agent, filed a claim on behalf of her daughter. (See Gov.Code, § 910.2, and former § 711; and Van Alstyne, California Government Tort Liability, supra, § 8.21, p. 377.) It is not alleged or claimed that the daughter was named as a claimant, or that any sum was claimed on her behalf. (See Gov.Code, former §§ 621, 641 and 711.)

Nor can this claimant rely upon the claim of her mother on the theory that there can be only one action, and therefore one claim for wrongful death. (Code Civ.Proc. § 377.) Whatever may have been said of the California law prior to the decision in Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 36 Cal.Rptr. 321, 388 P.2d 353, ⁵ that case established the following principles: 'Section 377 of the Code of Civil Procedure is a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action. Otherwise, its provisions could not be waived. (Citations.) Although recovery under section 377 is in the form of a 'lump sum,' the amount is determined in accordance with the various heirs' separate interests in the deceased's life and the loss suffered by each by reason of the death, and no recovery can be had by and heir who did not sustain a loss. (Citation.) Accordingly, each heir should be regarded as having a personal and separate cause of action.' (60 Cal.2d at p. 692, 36 Cal.Rptr. at p. 322, 388 P.2d at p. 354. See also Tammen v. County of San Diego (1967) 66 A.C. 480, at pp. 486--491 and pp. 491--492, 58 Cal.Rptr. 249, 426 P.2d 753; Changaris v. Marvel (1964) 231 Cal.App.2d 308, 312, 41 Cal.Rptr. 774; and Good v. City of San Bernardino (1920) 49 Cal.App. 559, 560--561, 193 P. 790.)

As against the City, the daughter further asserts an estoppel or waiver of the right to assert that there was a failure to file the claim. She relies upon Rand v. Andreatta (1964) 60 Cal.2d 846, 36 Cal.Rptr. 846, 389 P.2d 382, wherein it is stated: 'Estoppel may be used in a proper case to excuse the late filing of claims against public entities or the filing of such claims in a defective form. (Citations.) Therefore, since late or defective notice is regarded as the equivalent of no notice (citations) estoppel may likewise be used to excuse no notice. (Citations.)' (60 Cal.2d at pp. 849--850, 36...