Spence v. State

• Decision Date: 21 December 1961
• Parties: Clyde Harold SPENCE, Plaintiff and Appellant, v. STATE of California, California Highway Patrol, and M. Pat Martinez, Defendants and Respondents. Civ. 25325.
• Court: California Court of Appeals Court of Appeals

Page 302

18 Cal.Rptr. 302

198 Cal.App.2d 332

Clyde Harold SPENCE, Plaintiff and Appellant, v. STATE of California, California Highway Patrol, and M. Pat Martinez, Defendants and Respondents.

Civ. 25325.

District Court of Appeal, Second District, Division 4, California.

Dec. 21, 1961.

Rehearing Denied Jan. 10, 1962.

Hearing Denied Feb. 14, 1962.

A. J. O'Connor, Redondo Beach, for appellant.

Parker, Stanbury, Reese & McGee and Daren T. Johnson, Los Angeles, for respondents.

BURKE, Presiding Judge.

Plaintiff brought an action in tort against The State of California, the California Highway Patrol, and M. Pat Martinez, wherein it was alleged that Martinez is a traffic officer of the highway patrol and that on August 30, 1958, Martinez negligently operated a state automobile resulting in a collision with and injury to plaintiff. The complaint alleged the filing of a claim against defendants as follows: 'That pursuant to [sections 801 and 802] ¹ of the Government Code, and on the 14th and 17th days of October, 1958, plaintiff caused to be prepared and served upon said defendants, a Notice and Claim for Compensation for the damages herein complained of, a copy of which is referred to herein, attached hereto, and made a part hereof, and marked Exhibit 'A'; that more than 124 days have elapsed since the service of said notice of claim upon said defendants. That defendants have failed to notify plaintiff in writing whether said claim has been approved or rejected. That plaintiff has done and performed all things on his part to be done and performed in the premises.' A copy of the claim was attached to the complaint, which was filed on February 25, 1959.

On April 2, 1959, defendants filed their answer to the complaint, denying negligence on the part of defendants, alleging that Martinez was operating his vehicle in response to an emergency call at the time of the accident and alleging as an affirmative defense negligence on the part of plaintiff. Plaintiff's allegation of having filed a claim was admitted by failure to deny. (Code Civ.Proc. § 462.) Subsequently, defendants State of California and California Highway Patrol (hereinafter called 'respondents') moved for summary judgment in their favor on the ground that plaintiff had failed to file an undertaking pursuant to Government Code, section 647. Plaintiff admitted the failure, obtained an undertaking and moved for relief pursuant to Code of Civil Procedure, section 473 on the ground that the prior failure to file an undertaking was due to his mistake, inadvertence, surprise or excusable neglect. On January 25, 1960, respondents' motion for summary judgment was denied and plaintiff's motion under Code of Civil Procedure, section 473 was granted, plaintiff receiving permission to file the bond nunc pro tunc as of February 25, 1959.

On the 25th of March 1960 a pretrial conference was held wherein the issues were joined on the questions of negligence, contributory negligence, and damages, and on the additional issue whether the court had jurisdiction to proceed as to the respondents because of plaintiff's failure to file an undertaking at the time he filed the complaint.

No issue was raised concerning the failure of plaintiff to present a claim to the State Board of Control pursuant to Government Code, section 643. ²

When the case came on for trial respondents moved that the action as to them be dismissed on the ground that the court was without jurisdiction to proceed as against them. Besides urging the failure to file an undertaking at the time of the complaint, respondents also based their motion on the failure of plaintiff to comply with Government Code, section 643. This had the effect of belatedly injecting an issue not theretofore presented either by the pleadings or pretrial contentions or in the pretrial order. Respondents introduced a stipulation made with plaintiff that the action was brought under Vehicle Code, section 17001 ³ and 'that plaintiff has not prepared or presented a verified proof of claim to the State Board of Control in accordance with the provisions of [section 643] of the California Government Code.'

In opposing the motion plaintiff urged substantial compliance with the statute and asked leave to make an offer of proof with respect thereto. Plaintiff maintained that the injecting of a new issue did violence to the pretrial order which controlled and limited the future course of the litigation. The court granted the motion to dismiss with prejudice on the ground that it was without jurisdiction of the subject matter of the action as to respondents 'by reason of plaintiff's failure to present a verified claim to the [Board] * * *.' This view was taken in Bekins Van & Storage Co. v. State of California, 135 Cal.App.2d 738, 742, 28 P.2d 61.

We believe the court erred in holding that plaintiff's failure to file her claim with the state board deprived the court of jurisdiction of the subject matter in view of the holding of the Supreme Court in Redlands High School District v. Superior Court, 20 Cal.2d 348, 360, 125 P.2d 490, 496. In that case the Supreme Court noted that although '* * * liability on the part of [a] school district (that is, the waiver of sovereign immunity) is made dependent upon the filing of a claim * * *, we think the violation of the statutory provision constitutes an error of law rather than excess of jurisdiction.'

In 1 Witkin, California Procedure, Jurisdiction, § 50, p. 322, there is the following pertinent comment: '* * * It would seem that this decision overrules the Bekins case by implication, for no relevant distinction can be drawn between a suit against the state (Bekins) and against a school district (Redlands).

'The Redlands case and similar decisions are correct insofar as they hold that failure to comply does not deprive the court of subject matter jurisdiction, and that the defect may be waived and is not a ground for certiorari nor for collateral attack on a judgment.'

Respondents seek to restrict the Redlands holding to cases involving actions against school districts and municipalities; however, school districts are agencies of the state (Hall v. City of Taft, 47 Cal.2d 177, 181, 302 P.2d 574), and consequently, as pointed out in 1 Witkin, California Procedure, supra, p. 322, there can be no relevant distinction between a suit against a school district and the state. Furthermore, the doctrine enunciated in Redlands was reaffirmed in Farrell v. County of Placer, 23 Cal.2d 624, 630-631, 145 P.2d 570, 153 A.L.R. 323, wherein the claim was against a county which is a political subdivision of the state. (Govt.Code, §§ 23000-23002; see 1 Witkin, California Procedure, pp. 314-315, 321-322, 388-389, 560, 569-573.)

The fact that the judgment was rendered upon an erroneous basis does not of itself require that the judgment be reversed if it may be sustained upon any other basis. (International etc. Workers v. Landowitz, 20 Cal.2d 418, 423, 126 P.2d 609; Davey v. Southern Pac. Co., 116 Cal. 325, 329, 48 P. 117.) The moving defendant urged, as an alternative basis for dismissal, plaintiff's failure to file an undertaking at the time he filed his complaint. However, such delay in filing is not fatal to plaintiff's cause of action since the court permitted a late filing. (Bried v. Superior Court, 11 Cal.2d 351, 355, 79 P.2d 1091; Carter v. Superior Court, 176 Cal. 752, 756, 169 P. 667; 1 Witkin, Cal.Proc., p. 389.) The judgment, therefore, may be supported if at all, only because of plaintiff's purported failure to comply strictly with the claims statute.

Having determined that the failure of plaintiff to file her claim in strict compliance with the statute did not deprive the court of jurisdiction of the subject matter, we turn now to consideration of the force and effect of the pretrial order. The order contained, in part, the following recitation 'This is an action for personal injuries and property damage arising out of a two-car automobile collision.

'The parties hereto have signed and filed a 'Joint Pre-Trial Statement', which sets forth the nature of the case, the agreed facts, the contentions of the parties and the issues. Said joint pretrial statement is attached hereto and made a part of this order. In addition to the issues set out in the joint pretrial statement the defendants contend that as to the defendant, the State of California, this court has no jurisdiction to proceed. The plaintiff contends that said question of jurisdiction is not an issue in this case.

'The defendants have filed a document entitled 'Defendants' Pre-Trial Statement', which is attached hereto for the sole purpose of showing the contentions of the defendants.

'All necessary parties are before the court and issue is properly joined.

'There are no law and motion matters pending, or likely.'

The joint pretrial conference statement which was made a part of the order sets forth the issues normally present in an automobile accident collision case and is not important to the point under consideration.

The defendants' pretrial statement, which, as indicated above, was also attached to the pretrial judge's order 'for the sole purpose of showing the contentions of the defendants,' contains the following statement with respect to the question of jurisdiction:

'Defendant State of California further and specifically contends that this court is without jurisdiction to adjudicate this claim against it by reason of the fact that plaintiff failed to file an undertaking at the time of the filing of his complaint, in accordance with and pursuant to the provisions of Section 16047 of the California Government Code.'

It can be seen from this statement that the sole issue raised by defen...