Slavin v. City of Glendale
| Decision Date | 09 May 1950 |
| Citation | 97 Cal.App.2d 407,217 P.2d 984 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SLAVIN v. CITY OF GLENDALE et al. Civ. 17314. |
Paul S. Crouch, Los Angeles, for appellant.
Henry McClernan, City Attorney, Glendale, John W. McElheney, Deputy City Attorney and City Prosecutor, Hollywood, for respondents.
The appeal herein is from a judgment entered after the sustaining, without leave to amend, of a demurrer to the third amended complaint. Plaintiff's complaint alleges damages resulting from an assault and battery committed by certain police officers of the City of Glendale. To the original complaint, defendants demurred on the ground that the city was not liable for the type of tort alleged, and that plaintiff had not filed a verified claim for the damages, as required by the city charter and ordinance. This demurrer was sustained.
Likewise a demurrer was sustained to an amended complaint, the second count of which named the individual defendants without specifying them as police officers of the city. A second amended complaint was held demurrable without leave to amend as to the City, and with leave to amend in respect to the individual defendants. This complaint, in the first count made additional allegations of estoppel to excuse plaintiff's failure to file a written claim. Thereafter a third amended complaint was filed similar to the preceding pleading except that the City of Glendale was no longer named as a defendant; the factual basis for an estoppel was expanded, and in the second count the allegation that the individual defendants were 'of the city of Glendale,' was omitted. Demurrer thereto was sustained without leave to amend. Judgment was then entered for the respondents.
As stated in appellant's brief, the first question involved in this appeal is, 'Did the failure of the appellant to file a claim with the City of Glendale and its officers preclude the appellant from maintaining her first cause of action?' Amplifying this point appellant argues that 'the claim she has against the respondent is not the usual ordinary type of claim which should (under the city ordinances) be filed'; that it has been held in other states that in certain exceptional cases, nuisance, for example, plaintiff could maintain action although the required claim had not been filed. Appellant cites no California cases on the subject, and the cases from other states are in no manner similar to the present litigation.
Answering this contention, respondents quote Article XI, Section 5 of the Charter of the City of Glendale, as amended, providing that 'No action shall be brought on any claim or demand for money or damages against the City or any Board, Commissioner or officer thereof, until a demand for the same has been presented as provided in this Charter or by ordinance and rejected in whole or in part'. (Italics added.) Ordinance No. 2100 enacted June 27, 1946, provides that 'All claims for damages, founded in tort', against the City 'or any board, commissioner, officer or employee, must be in writing, verified and presented to the City Clerk, and to the * * * officer or employee against whom it is intended to bring the action, within ninety (90) days after the tort from which the damages arose'; further that 'No action shall be brought against the City * * * or any * * * officer or employee thereof' unless such claim has been presented as required, and rejected in whole or in part.
Various cases are cited in respondents' brief sustaining the validity of these requirements, such as Kornaherns v. City and County of San Francisco, 87 Cal.App.2d 196, 196 P.2d 140. In Cathey v. City and County of San Francisco, 37 Cal.App.2d 575, 576, 99 P.2d 1109, 1110, the court says: 'The language of the charter section is plain and requires no interpretation or construction. * * * such a demand is a condition precedent to the action, and a complaint failing to allege demand fails to plead a cause of action'. In construing a similar statute requiring filing of a claim, it was said in Huffaker v. Decker, 77 Cal.App.2d 383, 389, 175 P.2d 254, 257, that 'The statute merely places upon him (plaintiff) a reasonable procedural requirement to the maintenance of his action'.
As appellant's second point it is argued that assuming the necessity for filing a claim as a prerequisite to bringing action, 'it is respectfully submitted that appellant has plead in her first cause of action sufficient facts to show an estoppel against the respondents'. In Paragraph V of the Third Amended Complaint it is alleged that plaintiff , and that plaintiff relied upon such representations.
Appellant bases his estoppel argument upon the case of Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323, in which the governmental agency was held estopped by the acts of its agents from setting up plaintiff's failure to file a claim within the required 90 day period. In that case a formal claim was filed but not within the proper period. The Farrell case refers to Redlands High School District v....
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