Thierfeldt v. Marin Hosp. Dist.

• Decision Date: 09 November 1973
• Citation: 110 Cal.Rptr. 791,35 Cal.App.3d 186
• Court: California Court of Appeals Court of Appeals
• Parties: Rosemary THIERFELDT and Kent Cary Thierfeldt, Plaintiffs and Appellants, v. MARIN HOSPITAL DISTRICT and Marin General Hospital, public entities, Defendants and Respondents. Civ. 30464.

Page 791

110 Cal.Rptr. 791

35 Cal.App.3d 186

Rosemary THIERFELDT and Kent Cary Thierfeldt, Plaintiffs and Appellants, v. MARIN HOSPITAL DISTRICT and Marin General Hospital, public entities, Defendants and Respondents.

Civ. 30464.

Court of Appeal, First District, Division 1, California.

Nov. 9, 1973.

Hearing Denied Jan. 24, 1974.

Werchick & Werchick, Justin A. Roberts, San Francisco, for plaintiffs and appellants.

Freitas, Allen, McCarthy, Bettini & MacMahon, San Rafael, for defendants and respondents.

SIMS, Associate Justice.

Plaintiffs have appealed from a judgment in favor of defendant Marin Hospital District, a public entity, for its cost of suit. ¹ The judgment followed the entry of an order granting that defendant's motion for an order to strike the plaintiffs' first amended complaint and to dismiss the action with prejudice, which motion, after the court's decision to grant it, was at the request of the plaintiffs, resubmitted as a motion for summary judgment and again granted. ²

The controversy revolves about the question of whether either plaintiff has complied with the provisions of the Government Code which enable a claimant, who has failed to file a claim within 100 days (Gov.Code, § 911.2), and who, after application therefor, has failed to secure relief from a public entity (§§ 911.4 and 911.6), to secure an order of the court permitting him to file suit (§ 946.6, and cf. § 945.4). The plaintiffs further contend that on the record, the court erred in granting a summary judgment because the declaration filed on behalf of defendant is insufficient to sustain the order and judgment in its favor. Each side adamantly insists on the merit of its position concerning the performance of the conditions precedent to filing the complaint. An examination of the record reflects that there were defects in the proceedings, but that their nature is such that the defendant was not entitled to the relief granted, but only to the right to have a day in court to determine whether plaintiffs' respective petitions were properly granted. The judgment must be reversed and set aside, and the case must be remanded for further proceedings as outlined below.

The record reveals the following facts: Robert King Thierfeldt allegedly died on May 10, 1969, Rosemary Thierfeldt and Kent Cary Thierfeldt, the plaintiffs, claim to be his sole heirs at law as his widow and as an adult son, the issue of prior marriage, respectively.

On August 19, 1969, 101 days after the death of Robert, the widow's original attorney mailed a claim for $100,000 on her behalf alone to Marin General Hospital for the wrongful death of Robert. In March 1970 it was discovered that the claim was not timely and the widow's original attorney on March 16, 1970, filed an application to present a late claim. On March 30, 1970, he received a letter dated March 30, 1970 from the administrator of Marin General Hospital stating that at a meeting of the Board of Directors on March 24, 1970, the application had been denied.

Thereupon, on April 3, 1970, the attorney filed a petition for an order relieving petitioner from the provisions of section 945.4 of the Government Code, which was set for hearing on April 13, 1970. He purported to give notice of that hearing by mail. The sufficiency of the manner and form of that notice is one of the issues to be resolved on this appeal. On April 13, 1970, following a hearing at which there was no appearance on behalf of the defendant, the court granted the relief prayed for in the petition.

On April 29, 1970, the plaintiffs' present attorneys filed an application with defendant to file a late claim for $200,000 on behalf of Kent Cary Thierfeldt for the wrongful death of his father. Under date of June 3, 1970, the hospital administrator advised that the claim had been denied by the Board of Directors at its meeting on May 26, 1970.

Meanwhile, on May 8, 1970, a complaint for damages for the wrongful death of the plaintiffs' husband and father had been filed on their behalf. In the first two causes of action recovery was sought from nonpublic entity defendants by both plaintiffs. In the third cause of action the plaintiff Rosemary alone claimed damages of $200,000 from the defendant public entity, and generally alleged compliance with the claim statutes. It is not clear whether the public entity was made a defendant in a fourth cause of action. So far as appears from the record that complaint was never served on the defendant, and defendant never appeared in those proceedings in response to the original complaint. Nevertheless, on July 24, 1970, a petition for judicial relief from bar to sue because of non-presentation of claim under the provisions of section 946.6 was filed in those proceedings on behalf of the son. The matter was set for hearing on August 14, 1970, and notice of the hearing was given by mail. The sufficiency of the manner and form of that notice is a further subject of controversy. On August 14, 1970, there being no appearance on behalf of the defendant, the relief prayed for in the petition was granted.

On August 26, 1970, plaintiffs filed their first amended complaint against defendant public entity and numerous other defendants. They alleged, 'That within the manner and form provided by law, plaintiffs ROSEMARY THIERFELDT and KENT CARY THIERFELDT did comply with all necessary requirements imposed by claim statute procedures as against MARIN GENERAL HOSPITAL and MARIN HOSPITAL DISTRICT, in that on April 13, 1970, plaintiff ROSEMARY THIERFELDT was relieved from the provisions of Government Code Section 945.4 by Court order; and in that on August 14, 1970, plaintiff KENT CARY THIERFELDT was relieved from the provisions of Government Code Section 945.4 by Court order.' This complaint was served on defendant, and its attorneys requested and received three extensions of time to answer the amended complaint. On October 15, 1970, within such time, defendant described as 'MARIN HOSPITAL DISTRICT, which operates a hospital known as MARIN GENERAL HOSPITAL and is sued herein under that name also,' filed its notice of motion and motion for an order to strike the first amended complaint and to dismiss the action with prejudice on the grounds that the amended complaint was sham and subject to procedural and jurisdictional defects that do not appear on the face of the pleading. The motion was supported by the declaration of the custodian of the defendant's records, and was based on the records in the action in which the complaint was filed, and the records in the rpoceedings in which plaintiff widow had secured relief, of which the court was requested to, and did, take judicial notice. The proceedings on the motion resulted in the order and judgment from which this appeal has been taken.

I

In connection with its motion defendant filed but one declaration, that of a secretary who alleged she was the custodian of defendant's records. Her declaration related to the form of the notice which was admittedly received in connection with the petition for relief filed by the decedent's widow. The plaintiff's attorney filed a lengthy declaration which on its face shows that in most material respects it is based on hearsay, being merely a repetition of what the filed documents reveal. He failed to state that he could testify to the contents of his declaration if called as a witness, and it is obvious that in many respects, such as the dealings between the widow and her first attorney he could not do so. On this state of the record the defendant's attorneys filed no further declarations and merely objected to the plaintiffs' attorney's statements, which he failed to show were within his personal knowledge, to the effect that the first petition 'was in fact received by MARIN GENERAL HOSPITAL in the due course of the mail and in advance of the April 13, 1970 hearing,' and that the second petition 'was in fact received by an appropriate person at MARIN GENERAL HOSPITAL and/or MARIN HOSPITAL DISTRICT.' The objection was well taken and the facts which are the subject of that portion of the declaration must be determined from the record.

In Lerner v. Ehrlich (1963), 222 Cal.App.2d 168, 35 Cal.Rptr. 106, the court held that a motion to strike under Code of Civil Procedure section 435, based upon facts not appearing upon the face of the complaint, must be treated as a motion for summary judgment supported by affidavits. The court stated, '. . . it seems clear that here the trial court was required to consider respondent Ehrlich's motion to strike as a motion for summary judgment and to decide it upon the basis of the statutory requirements established by Code of Civil Procedure section 437c, as interpreted by decisions of the Supreme Court and District Courts of Appeal. ( ) The rules relating to summary judgment are well defined. Affidavits of the moving party are to be strictly construed. Generalities and conclusions will not suffice in the moving party's declarations. (Citation.) Affidavits in opposition to the motion are liberally construed and need not consist entirely of evidentiary facts, and facts therein stated must be accepted as true. (Citation.)' (222 Cal.App.2d at p. 172, 35 Cal.Rptr. at p. 108. See also Vesely v. Sager (1971), 5 Cal.3d 153, 167--169, 95 Cal.Rptr. 623, 486 P.2d 151; 4 Witkin, Cal.Procedure (2d ed. 1971) Proceedings without Trial, § 176, p. 2828.)

From this premise plaintiffs advance to the principle that a summary judgment cannot be ordered for the moving party, even though the affidavits of the opposing party are insufficient or nonexistent, unless the affidavits of the moving party, which comply with the statute, show that he is entitled to judgment. (Code Civ.Proc., § 437c, 2d par.; Vesely v. Sager, supra, 5 Cal.3d 153, 169--170, 95 Cal.Rptr. 623, 486 P.2d 151; Stationers Corp. v. Dun & Bradstreet, Inc. (1965), 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785; De Echeguren v. De...