Rand v. Andreatta

• Decision Date: 18 February 1964
• Citation: 60 Cal.2d 846,36 Cal.Rptr. 846
• Court: California Supreme Court
• Parties: , 389 P.2d 382 Corine RAND, Plaintiff and Appellant, v. Shirley A. ANDREATTA et al., Defendants and Respondents. S. F. 21551.

Page 846

36 Cal.Rptr. 846

60 Cal.2d 846, 389 P.2d 382

Corine RAND, Plaintiff and Appellant, v. Shirley A. ANDREATTA et al., Defendants and Respondents.

S. F. 21551.

Supreme Court of California, In Bank.

Feb. 18, 1964.

Redland & Pinney and Van H. Pinney, San Francisco, for plaintiff and appellant.

J. Frank Coakley, Dist. Atty., Appelbaum, Mitchell & Bennett, Bennett & Van De Poel and Bryant M. Bennett, Oakland, for defendants and respondents.

McCOMB, Justice.

Plaintiff appeals from a judgment entered in favor of defendants after a ruling by the trial court, under section 597 of the Code of Civil Procedure, on a special defense constituting a bar to the prosecution of the action, in a suit for personal injuries alleged to have been caused by negligence of defendant Andreatta while in the course and scope of her employment by defendant county.

The issue presented to the trial court was whether plaintiff's action was barred by reason of her failure to file claims pursuant to former section 710 et seq. of the Government Code ^* prior to commencement of the action. The trial court's determination of this issue in defendants' favor necessarily included a determination that defendants were not estopped as a matter of law to set up such a defense.

Facts: At the time set for trial, the parties stipulated that (a) the accident occurred on April 5, 1960; (b) plaintiff first saw an attorney no later than October 17, 1960; (c) no claim as required by law was filed with either defendant prior to the filing of the action November 13, 1960; (d) a claim was filed with each defendant on or shortly following February 6, 1961, long after the time fixed by law for the filing thereof; (e) the police report covering the accident showed on its face that the vehicle driven by defendant Andreatta was owned by defendant county; (f) defendant Andreatta was acting in the course and scope of her employment by defendant county at the time of the accident; (g) findings of fact and conclusions of law were waived; and (h) the trial court might, pursuant to the provisions of section 597 of the Code of Civil Procedure, separately try the issue of whether plaintiff's action was barred by reason of her failure to file a claim prior to commencement of the action, and if such issue was decided in plaintiff's favor, the issue of whether the facts supported an estoppel.

In an amended complaint, plaintiff alleged facts which, if proved, would be sufficient to estop defendants from asserting the defense of failure to file the claims within the time required by law.

Questions: First. Does plaintiff's failure to file claims, pursuant to the requirements of the Government Code, prior to commencement of the action prevent consideration of any facts which might estop defendants from asserting the defense of failure to file a claim on time?

No. Since plaintiff commenced her action before filing the claims required by the Government Code, she is in the same position as if she had never filed a claim. Accordingly, we must determine whether estoppel may be used to excuse a failure to file any claim at all.

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. (Farrell v County of Placer, 23 Cal.2d 624, 627-628(2, 3), 630(4), 145 P.2d 570, 153 A.L.R. 323; Dettamanti v. Lompoc Union School Dist., 143 Cal.App.2d 715, 719, 723(6), 300 P.2d 78; Cruise v. City and County of San Francisco, 101 Cal.App.2d 558, 562(3, 4), 225 P.2d 988; Mendibles v. City of San Diego, 100 Cal.App.2d 502, 506(1), 224 P.2d 42 (hearing denied by the Supreme Court).)

Therefore, since late or defective notice is regarded as the equivalent of no notice (Hall v. City of Los Angeles, 19 Cal.2d 198, 203, 120 P.2d 13; Gale v. County of Santa Barbara, 118 Cal.App.2d 451, 452-453(1), 257 P.2d 1000 (hearing denied by the Supreme Court)), estoppel may likewise be used to excuse no notice. (See Bruce v. Jefferson Union High Sch. Dist., 210 Cal.App.2d 632, 634(2, 3), 26 Cal.Rptr. 762; Cruise v. City and County of San Francisco, supra, 101 Cal.App.2d 558, at p. 563, 225 P.2d 988, at pp. 991-992; 1 Witkin, Cal.Procedure (1954) Actions, § 72, pp. 575-576.)

Any statements to the contrary in Johnson v. County of Fresno, 64 Cal.App.2d 576, 149 P.2d 38; Klimper v. City of Glendale, 99 Cal.App.2d 446, 222 P.2d 49; Brown v. Sequoia Union High School Dist., 89 Cal.App.2d 604, 201 P.2d P.2d 66; and Slavin v. City of Glendale, 97 Cal.App.2d 407, 217 P.2d 984, are disapproved.

Second. Are plaintiff's allegations of estoppel sufficient?

Yes. The allegations pertinent to the question of estoppel are that one Kendall was the agent and claims representative of both defendants; that within a few days after the accident he represented to plaintiff that he was such agent and claims representative; that he advised plaintiff (an uneducated Negro woman) that she did not need counsel and that it would not be necessary for her to retain counsel; that all her rights would be protected; that, relying upon the representations, plaintiff did not seek counsel until October 17, 1960, when it appeared impossible to arfive at an equitable settlement with Kendall; that he had her sign numerous papers and that within the time required by law her claim for damages was presented to both defendants; that the claim was in all particulars as required by law; and that it was rejected.

At the time of trial, after considerable discussion between the court and counsel, defendants agreed that the issue of estoppel could be tried by the court instead of a jury and that there were two issues to be submitted to the court, (1) the effect of the failure to file claims before suit and of the filing of claims after suit, and (2) if this issue was decided in favor of plaintiff, did the facts support an estoppel?

It is clear from the foregoing that the allegations of estoppel were sufficient, and the issue was before the trier of fact.

Ghiozzi v. City of South San Francisco, 72 Cal.App.2d 472, 164 P.2d 902, relied on by defendants is not in point. In that case, the plaintiff filed a timely, verified claim, but failed...