Ruffino v. City of Los Angeles

• Decision Date: 26 March 1964
• Court: California Court of Appeals Court of Appeals
• Parties: Pearl RUFFINO, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent. Civ. 27340.

Page 765

37 Cal.Rptr. 765

226 Cal.App.2d 67

Pearl RUFFINO, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

Civ. 27340.

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

March 26, 1964.

Kinkle, Rodiger, Graf & Dewberry, David R. Merrihugh, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Bourke Jones and Edwin F. Shinn, Asst. City Attys., Kenneth K. Williams, Deputy City Atty., for respondent.

HERNDON, Acting Presiding Justice.

This appeal is taken from the summary judgment entered in favor of respondent City of Los Angeles by reason of appellant's failure to present a claim to the city regarding the injuries allegedly sustained by her in a vehicular accident involving the city.

Appellant's asserted injuries were sustained in an accident on October 30, 1960, allegedly caused by respondent's negligence. Her original complaint herein was filed March 2, 1961. Respondent City answered her complaint and then moved for a judgment on the pleadings on the ground that the complaint failed to state a cause of action in that it failed to allege the presentation of any claim to the city.

This motion was ordered off calendar and appellant was granted ten days to amend her complaint. Appellant's amended complaint alleged that on or about November 30, 1960, the city received a claim on her behalf and that on or about January 13, 1961, appellant, through her attorneys, filed a claim with the city. Respondent answered the amended complaint and then moved for a summary judgment based upon affidavits executed by its appropriate officers to the effect that no claim by appellant had 'ever been served, filed with or received' by their respective offices.

Sections 710 through 720 of the Government Code ¹, as they then existed and applied to this type of action, provided that no suit for damages resulting from a personal injury could be brought against a local public entity without a written claim having been first presented with one hundred days of the accrual of the cause of action. The requirements of these sections were mandatory. (Cf. Hall v. City of Los Angeles, 19 Cal.2d 198, 203, 120 P.2d 13; Tyhurst v. Housing Authority of Los Angeles County, 213 Cal.App.2d 715, 717, 29 Cal.Rptr. 239; Fidelity & Dep. Co. of Maryland v. Claude Fisher Co., 161 Cal.App.2d 431, 435, 327 P.2d 78 et seq.)

Appellant's brief contains no assertion, and it could not reasonably be asserted, that the affidavits filed in opposition to the motion constituted any showing that a claim was presented on November 30, 1960, or that any question of estoppel or substantial compliance was raised by such affidavits. We are therefore presented with only the very narrow question whether these affidavits presented any substantial issue of fact regarding the claim assertedly filed January 13, 1961, to prevent the proper entry of the summary judgment.

The first of the two affidavits filed in opposition to the motion is that of a member of the law firm representing appellant. In it the affiant states that he prepared and executed a claim on appellant's behalf, and presented it to 'Speedy Attorney Service' on January 13, 1961, with the request that it be filed and served 'upon the City of Los Angeles, such being the usual and normal practice of declarant's office.' The affidavit further alleges that a copy of this claim is attached thereto, but no copy of any written instructions that might reasonably accompany such a claim, nor any return by the messenger service regarding the disposition...