State of California v. Superior Court

• Decision Date: 17 November 1978
• Citation: 86 Cal.App.3d 475,150 Cal.Rptr. 308
• Parties: The STATE of California, Petitioner, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; Leland Earl WARING, a minor by Earl R. Waring, Jr., his guardian ad litem, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 308

150 Cal.Rptr. 308

86 Cal.App.3d 475

The STATE of California, Petitioner, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent Leland Earl WARING, a minor by Earl R. Waring, Jr., his guardian ad litem, Real Party in Interest.

Civ. 17808.

Court of Appeal, Third District, California.

Nov. 17, 1978.

No appearance for respondent.

Evelle J. Younger, Atty. Gen., John M. Morrison and Craig Modlin, Deputy Attys. Gen., for petitioner.

Wilke, Fleury, Hoffelt & Gray, Sacramento, Steven Kroff and James V. Quillinan, Palo Alto, and Alan G. Perkins, Sacramento, for real party in interest.

CARR, ^* Associate Justice.

Petitioner State of California seeks a writ of mandate to compel respondent Superior Court of Sacramento County to vacate its order relieving real party in interest from the provisions of Government Code section 945.4, requiring filing of a written claim as a prerequisite to a lawsuit against a public entity. ¹ The trial court concluded the requirements of section 911.4, subdivision (b), which tolls the one-year period within which to obtain leave to file a late claim on the ground of a minor's incapacity and nonrepresentation by a guardian, were met. The order was made in proceedings, pursuant to section 946.6, initiated by a petition supported by affidavits from the parents of the minor real party in interest, his doctor and his attorneys. Petitioner filed no contravening affidavits. These affidavits by real party in interest constitute the only evidentiary matter before the trial court and this court.

The minor, Leland Earl Waring (Waring), sustained substantial personal injuries, diagnosed as severe quadriplegia, incomplete below C-4, when he dived into the Sacramento River and broke his neck on July 25, 1976. At this time he was sixteen years of age, his date of birth being September 22, 1959. Subsequent to the injury, he was taken by helicopter to the regional spinal injury unit of the Santa Clara Valley Medical Center, where he remained until December 23, 1976. During the first six weeks in the hospital, his treatment consisted of skull traction followed by a halo body jacket fixation. Access to him during his hospital stay by outsiders was extremely limited. Dr. Conal B. Wilmot, the treating physician, stating Waring was "very introspective, quiet and showed a failure of realization of the nature and extent and seriousness of his injuries and the degree of his paralysis. He showed a refusal to plan his future due to apprehension and fear that his paralysis . . . might remain permanent." Earl Waring, the minor's father, was of the opinion that his son was mentally and physically incapacitated during his stay in the hospital, that he was unaware of what was going on, not thinking very much, unable to give any assistance as to the cause of his injuries and did not fully understand the nature and extent of his injuries. Delsie Waring, the minor's mother, related that during the hospitalization her son was very "down," cried, was unable to cope with the situation, and lacked the capacity to understand what was going on around him. His attorney declared under oath that he was unable to see Waring until September 1, 1976, because no visitors were allowed. At that time Waring had no memory of his accident or any causation; that because of pain and shock, he appeared mentally incapacitated and was unable to assist counsel in any manner. After Waring's discharge from the hospital, counsel requested a medical report in January 1977, which report was received in April 1977. From this report, counsel first learned that Waring had broken his neck by diving into a shallow spot in the river. Knowledge that the state had any interest in the accident site was not acquired until August 1977.

An application to present a late claim pursuant to section 911.4, was filed with the State Board of Control on Waring's behalf on August 30, 1977. The Board returned the claim as not timely filed because more than one year had elapsed from the date of the accident. This has apparently been construed as a denial of the claim by the Board. We agree with this construction.

The trial court found that Waring was at all times from July 25, 1976 (date of injury) and still is a minor; that he was physically and mentally incapacitated from July 25, 1976, until December 23, 1976 (date of hospital discharge); that during such period he was without a guardian or conservator of his person within the meaning of sections 911.4 and 946.6 and therefore the one-year limitation period prescribed by section 911.4, subdivision (b) was tolled for the period of such incapacity. Waring was therefore relieved from the necessity of filing a claim and filed his complaint herein.

Petitioner now seeks a writ of mandate to compel the superior court to set aside its order. The documents before us consists only of the papers filed in the Superior Court of Sacramento County.

The following contentions are made in support of mandate:

(1) That Waring's parents were his guardians at law and their failure to file a claim on his behalf precludes leave for relief to file a late claim;

(2) The evidence is insufficient to show that Waring was incapacitated during the period from July 25, 1976, to December 23, 1976, so as to toll the claim filing period; and

(3) The claim was not filed within a reasonable time.

Petitioner's basic contention is that the Legislature in using the word "guardian" in section 911.4, subdivision (b) intended such word to include the natural parents of a minor without more. Thus, a failure by a parent to file a claim on behalf of a minor with a public agency within the statutory limitation period would bar the minor's right to file a late claim. This contention is not consistent with either judicial authority or supported by considerations of public policy or principles of statutory construction.

Government Code section 911.4, subdivision (b) provides: "The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) of this chapter within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application. In computing the one-year period under this subdivision, time during which the person who sustained the alleged injury, damage or loss is a minor shall be counted, but the time during which he is mentally incapacitated and does not have a guardian or conservator of his person shall not be counted." (Emphasis added.)

Petitioner argues that Waring's parents, having custody of him, were the natural guardians of his person. Therefore the exemption provided in section 911.4 is inapplicable and the failure of the guardian to file a claim on his behalf precludes relief.

The issue before us has not heretofore been subject to judicial scrutiny. However, the right of parents as natural guardians to forfeit the rights of minors by inaction has been considered. In Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 36 Cal.Rptr. 321, 388 P.2d 353, our Supreme Court overruled earlier cases (e. g., Haro v. Southern Pacific R. R. Co. (1936) 17 Cal.App.2d 594, 596, 62 P.2d 441; Sears v. Majors (1930) 104 Cal.App. 60, 62, 285 p. 321) to the extent those decisions held a minor's wrongful death action barred by the parent's failure to file an action within the statutory limitations period. (60 Cal.2d at pp. 693-694, 36 Cal.Rptr. 321, 388 P.2d 353.)

The court stated in Cross : "The running of the statute of limitations against adult heirs, therefore, does not affect the rights of minor plaintiffs in a wrongful death action." (60 Cal.2d at p. 693, 36 Cal.Rptr. at p. 322, 388 P.2d at p. 354; accord, Arizmendi v. System Leasing Corp. (1971) 15 Cal.App.3d 730, 736, 93 Cal.Rptr. 411.) Clearly, the parent does not succeed to the minor's action through possession of a proprietary right in that action, and the parent's failure timely to file a claim on behalf of the minor does not preclude the minor's maintenance of the action if otherwise permitted.

The rationale of Cross has not been limited to wrongful death actions. (See, e. g., Glavich v. Industrial Accident Com. (1941) 44 Cal.App.2d 517, 522, 112 P.2d 774 (overruled to the extent inconsistent on other grounds in Cross ); accord, Fisher v. Workers' Comp. Appeals Bd. (1976) 62 Cal.App.3d 924, 928-929, 133 Cal.Rptr. 471; Aronson v. Bank of America (1941) 42 Cal.App.2d 710, 720, 109 P.2d 1001 (opn. incorporates by reference prior decision of court (Cal.App., 65 P.2d 823, 825-826) reversed on other grounds (9 Cal.2d 640, 72 P.2d 548)); Gottesman v. Simon (1959) 169 Cal.App.2d 494, 509, 337 P.2d 906; Van Buskirk v. Todd (1969) 269 Cal.App.2d 680, 689, 75 Cal.Rptr. 280.) ² Nor is petitioner's contention supported by public policy considerations concerning sovereign immunity and the purposes of the claim filing statutes. The California Supreme Court, in abrogating the common law rule of governmental immunity, observed that "where there is negligence, the rule is liability, immunity is the exception." (Baldwin v. State of California (1972) 6 Cal.3d 424, 435, 99 Cal.Rptr. 145, 152, 491 P.2d 1121, 1128; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 219, 11 Cal.Rptr. 89, 359 P.2d 457.) The import is that tort liability should be extended rather than limited unless there is legislative intent to the contrary.

The purpose of the claim filing statute is to give the public agency notice of the claim so that it...