Tammen v. San Diego County

• Decision Date: 26 April 1967
• Citation: 58 Cal.Rptr. 249,66 Cal.2d 468,426 P.2d 753
• Court: California Supreme Court
• Parties: , 426 P.2d 753 Marjorie TAMMEN et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO, Defendant and Respondent. L.A. 29026. In Bank

Page 249

58 Cal.Rptr. 249

66 Cal.2d 468, 426 P.2d 753

Marjorie TAMMEN et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO, Defendant and Respondent.

L.A. 29026.

Supreme Court of California,

In Bank.

April 26, 1967.

Trippet, Yoakum & Ballantyne, Oscar A. Trippet and Thomas H. Carver, Los Angeles, for plaintiffs and appellants.

McInnis, Focht & Fitzgerald and William T. Fitzgerald, San Diego, for defendant and respondent.

Harry S. Fenton, Robert F. Carlson and Kenneth G. Nellis, Sacramento, as amici curiae on behalf of defendant and respondent.

McCOMB, Justice.

Plaintiffs, the widow and minor child of Dr. Tammen, appeal from an order denying their petition to file a late claim against defendant for wrongful death.

Facts: On February 17, 1963, Dr. Tammen's automobile struck two horses that had strayed onto State Highway 78 in San Diego County. He died the following day. Within two weeks Mrs. Tammen consulted her attorneys concerning probating Dr. Tammen's estate.

At various times insurance adjusters representing the owner of the horses talked with Mrs. Tammen, but not until July 1963 did one of the adjusters suggest to her that she might also have a claim against the City of Oceanside. She then discussed that point with her attorneys and left the matter in their hands.

On January 8, 1964, almost 11 months after the accident, plaintiffs presented a $750,000 claim to the San Diego County Board of Supervisors. The claim was based upon the asserted 'failure of the San Diego County Road Department and the San Diego County Sheriff's Department to plan, construct and maintain Vista Way (where the horses were loose) and other nearby roads, so that they would not be in a dangerous and defective condition by being exposed to roaming livestock, and the (two county departments) had notice of this fact.'

On January 16, 1964, the clerk of the board of supervisors notified plaintiffs that the board had decided not to act upon the claim, on the ground that it had not been filed within the period prescribed by law.

On January 22, 1964, plaintiffs applied to the board for leave to file a late claim, which application was denied.

On March 6, 1964, plaintiffs petitioned the superior court for leave to present a late claim. One of plaintiffs' attorneys filed a declaration in support of the petition, setting forth the legal complexities and investigating problems of preparing to file the claim. The county filed no objection to the petition, but counsel appeared and resisted it.

Questions: First. Is plaintiffs' claim governed by the 1963 tort claims act?

Yes. At the time of the accident, the procedure for presenting claims against public entities was set forth in former Government Code sections 710--730. Claims were required to be presented not later than the 100th day after the accrual of the cause of action (Gov.Code, § 715). If not presented within that time the superior court was authorized to grant leave to file a late claim if the public entity would not be unduly prejudiced and if the claimant was a minor during all of such time, or was physically or mentally incapacitated during such time and by reason of such fact failed to present a timely claim (Gov.Code, § 716).

The above sections were repealed in 1963, and a new and more comprehensive revision of the claims procedure was enacted. (Gov.Code, § 900 et seq.) Section 152 of the 1963 act, effective September 20, 1963, provides in part:

'(a) This act applies to all causes of action heretofore or hereafter accruing.

'(b) Nothing in this act revives or reinstates any cause of action that, on the effective date of this act, is barred either by failure to comply with any applicable statute, charter or ordinance requiring the presentation of a claim or by failure to commence an action thereon within the period prescribed by an applicable statute of limitations.

'(c) Subject to subdivision (b), where a cause of action accrued prior to the effective date of this act and a claim thereon has not been presented prior to the effective date of this act, a claim shall be presented in compliance with this act, and for the purposes of this act such cause of action shall be deemed to have accrued on the effective date of this act.'

The present proceeding is thus governed by the 1963 act, whereby plaintiffs' causes of action are deemed to have accrued on September 20, 1963 (subd. (c) above). The claim was not barred because at the time of Dr. Tammen's death on February 18, 1963, the late claims procedure of former section 716 was open to plaintiffs. They had not presented their claim within 100 days, but they had a right to petition the superior court for leave to file a late claim within a reasonable time not to exceed one year after the expiration of 100 days from February 18, 1963. It might have been determined by the court that the petition should have been denied, whether for failure to show physical or mental incapacity or because the county would be prejudiced, but the right to present the claim had not been barred, nor had the statute of limitations run. Plaintiffs' claim was not 'revived' under subdivision (b) of section 152 of the 1963 act, but was an unbarred claim expressly permitted to be presented under subdivision (c). (Hobbs v. Northeast Sacramento County Sanitation Dist., 240 Cal.App.2d 552, 556, 49 Cal.Rptr. 606; cf. Manquero v. Turlock, etc., School Dist., 227 Cal.App.2d 131, 133--134, 38 Cal.Rptr. 470.)

The 100-day period after September 20, 1963, allowed for presenting claims expired on December 30, 1963. Plaintiffs presented a claim to the board of supervisors on January 8, 1964, and on January 22, 1964, applied to the county for leave to present a late claim (Gov.Code, § 911.4), which application was denied (Gov.Code, § 911.6 ¹). Thereafter, plaintiffs applied to the superior court for leave to present their claim (Gov.Code, § 912).

The pertinent provisions of section 912, ² in effect when this proceeding was instituted, were: '(b) The superior court Shall grant leave (to file a late claim) if the court finds that the Application to the board (to file late) was made within a reasonable time not to exceed one year after the accrual of the cause of action and was denied * * * And that:

'(1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity * * * establishes that it would be prejudiced if leave to present the claim were granted; Or

'(2) The claimant was a minor during all of the time (100 days) for the presentation of the claim; Or

'(3) The claimant was physically or mentally incapacitated (during the 100 days) and by reason of such disability failed to present a claim during such time; Or

'(4) The claimant died before the expiration of the time specified (100 days) for the presentation of the claim.

'* * *e c

'(e) The court shall make an independent determination upon the application (to the superior court). The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.' (Italics added.)

A person seeking leave to file a late claim must show Both (1) that the application to the board was made within a reasonable time not to exceed one year after the accrual of the cause of action And (2) that he falls within one of the four alternative situations set forth in subdivision (b).

The superior court denied the petition, having found that the application to the board was not made within a reasonable time and that Mrs. Tammen's failure to present her claim within 100 days was not due to either of the two causes she alleged,--mistake, inadvertence, etc. under subdivision (b)(1), or physical or mental incapacity under subdivision (b)(3).

Second. Did the trial court abuse its discretion in denying the petition of Mrs. Tammen?

No. Aside from the allegation in the petition that Mrs. Tammen was physically or mentally incapacitated, there was no evidence upon which a finding of incapacity could be made. Mrs. Tammen testified that within a few weeks after her husband's death she consulted her attorneys regarding the probate of his will and that she signed numerous papers for them from time to time thereafter; that within a month after his death, insurance adjusters called on her and offered her payment within the policy limits of the insurance carried by the owner of the horses; and that on or about July 19, 1963, one of the adjusters suggested to her that she might also have a claim against the City of Oceanside and she then discussed that point with her attorneys.

In support of the petition Mrs. Tammen's attorney filed a declaration asserting that on or about July 19, 1963, she consulted him and authorized him to investigate the circumstances that caused Dr. Tammen's death.

Therefore, there was ample evidence from which the court could find that Mrs. Tammen was able to attend to her business affairs with the care and diligence expected of persons in average good health and that failure to present her claim was not due to physical or mental incapacity. (Cf. McGranahan v. Rio Vista, etc., Sch. Dist., 224 Cal.App.2d 624, 631(12a, 12b), 36 Cal.Rptr. 798; Pope v. County of Riverside, 219 Cal.App.2d 649, 652(1b), 33 Cal.Rptr. 491.)

Thompson v. County of Fresno, 59 Cal.2d 686, 31 Cal.Rptr. 44, 381 P.2d 924, where we reversed an order denying a petition for leave to file a late claim, is not, as Mrs. Tammen argues, 'almost identical' with the case before us. In that case, the plaintiff underwent surgery at a county hospital and was totally incapacitated for more than 100 days. Agents of the county told her that her paralysis was due to a stroke and it was not until nearly a year later that she learned that this statement was false and that her paralysis was due to negligent performance of the operation. Being in doubt as to whether her...