Toscano v. County of Los Angeles

Citation92 Cal.App.3d 775,155 Cal.Rptr. 146
CourtCalifornia Court of Appeals
Decision Date07 May 1979
PartiesOscar TOSCANO and Victor Toscano, Petitioners and Appellants, v. COUNTY OF LOS ANGELES SHERIFF'S DEPARTMENT, Respondent. Civ. 54004.
Oscar Toscano and Victor Toscano, in pro. per

Chase, Rotchford, Drukker & Bogust and John J. Geary, Jr., Los Angeles, for respondent.

STEPHENS, Acting Presiding Justice.

This is an appeal from an order entered in a proceeding commenced in superior court pursuant to section 946.6 of the Government Code denying the petition of appellants for an order relieving them from the obligation of filing a claim with a public entity.

FACTS

On May 26, 1976, petitioners and appellants, Oscar and Victor Toscano, were arrested by officers of the respondent, the Sheriff's Department of the County of Los Angeles, following an altercation in the streets of the City of Pico Rivera. Appellants allege the following events preceded and followed the arrest: While driving along Rosemead Boulevard, they were accosted by five young Mexican men who boxed in their car, assaulted and battered them, and damaged their car. Officers of respondent arrived at the scene, told everyone to disperse, and following appellant Oscar Toscano's insistence that the assailants be arrested, appellants and their assailants were arrested and taken to police headquarters. Appellant Oscar Toscano was charged with assault with a deadly weapon and appellant Victor Toscano was charged with assault with intent to commit mayhem. Appellants further allege that they were On the day following their arrest, while still in custody, appellants were interviewed by a deputy sheriff. Appellants recount that during this interview they were told all charges against them would be dropped and that records of their arrest would be expunged if they would drop all charges against their assailants. The deputy also impliedly requested a waiver of any claim of liability against the sheriff's department. Appellants' counsel was present during their release the same day, and was aware of the understanding between appellants and respondent.

harassed and intimidated by various deputy sheriffs while in custody.

Appellants further allege that on August 3, 1976, appellant Oscar Toscano contacted the Internal Affairs Department of the respondent, requested an investigation of the incident, and inquired as to the procedure for filing a claim against the respondent. He was told that the matter would be taken care of, that he should not worry, and that someone would "get back" to him. Shortly thereafter another deputy sheriff interviewed appellants and took a report of the events in question. 1

Appellants' brief states that on or about November 1, 1976, appellants alleged that they discovered that the records of their arrest on May 26, 1976, had not been expunged. There is nothing in their petition for relief to substantiate this statement except that they filed an application to file late claims on November 15, 1976, and December 2, 1976. In a declaration by petitioners, filed August 2, 1977, (along with the petition for relief) they alleged (Nos. 33 and 36) that they first learned of the fact that the records had not been expunged on November 1, 1976. By that time, the 100-day period of limitation for filing of a claim against the county had expired. Each of them thereupon filed with respondent a written application for leave to present a late claim. Appellant Oscar Toscano's application was filed on November 15, 1976, and appellant Victor Toscano's application was filed on December 2, 1976.

Appellants' application for leave to file late claims were formally denied by respondent on February 3 and 4, 1977. On August 2, 1977, appellants commenced the instant proceeding in superior court, seeking an order permitting them to bring a civil action against respondent for damages even though they did not file timely claims with respondent as required by Government Code sections 911.2 and 945.4. 2 This petition was formally denied by the superior court on November 6, 1977, and this appeal followed.

APPELLANTS' CONTENTIONS

Appellants contend that the superior court erred in denying the relief sought because: (1) Appellants' failure to file timely claims with respondent should be excused and respondent should be estopped from urging compliance with the claim filing requirements because representations of certain deputy sheriffs induced the failure of appellants to file timely claims. (2) The written report given to the deputy on August 3, 1976, substantially complied with the claim filing requirements. (3) The applications to file late claims substantially complied with the claim filing requirements as to a proposed cause of action for fraud. (4) In a cause of action for violation of civil rights, failure to file a timely claim against the government entity does not bar the action. (5) There was no substantial evidence to support the finding of the superior court that appellants made a conscious decision not to file suit or make a claim within the allowable time period.

DISCUSSION

The law pertinent to the instant case was well summarized in Williams v. Mariposa County Unified Sch. Dist. (1978) 82 Cal.App.3d 843, 847, 147 Cal.Rptr. 452, 455, as follows:

"An individual cannot bring a lawsuit against a public entity for personal injuries or property damage unless within 100 days after the accrual of the cause of action the individual has presented a written claim to the public entity involved, and the public entity has acted upon the claim or the claim has been deemed to have been rejected. ( §§ 911.2, 945.4.)

"Where the claimant does not file a claim within the 100-day claim period, written application may be made to the public entity for leave to present a late claim. ( § 911.4, subd. (a).) The application must be filed within a reasonable time not to exceed one year after the accrual of the cause of action. ( § 911.4, subd. (b).) The application must be granted if, inter alia, (1) the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced thereby; . . . ( § 911.6, subd. (b)(1) . . .)"

If the public entity denies leave to present a late claim, a petition may be filed in the court otherwise having jurisdiction in the action, for an order relieving the petitioner of the requirement of filing a claim. ( § 946.6, subd. (a).) This relief shall be granted if the court finds that the application filed with the public entity for leave to present a late claim was made within a reasonable time not to exceed one year after the accrual of the cause of action and that, inter alia, the failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced thereby. ( § 946.6, subd. (c)(1).)

The superior court has broad discretion in granting or denying a petition for relief under section 946.6. (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 552, 94 Cal.Rptr. 158, 483 P.2d 774; Martin v. City of Madera (1968) 265 Cal.App.2d 76, 79, 70 Cal.Rptr. 908.) This rule, however, does not preclude reversal of an order denying such relief where adequate cause for the relief is shown by uncontradicted evidence or affidavits of the petitioner. (Viles v. State of California (1967) 66 Cal.2d 24, 28, 56 Cal.Rptr. 666, 423 P.2d 818.) Also, an appellate court should be more rigorous in examining the denial of relief under section 946.6 than its allowance. (Viles, supra, at p. 29, 56 Cal.Rptr. 666, 423 P.2d 818.)

It is against the just recited background of statutory and case law that we will consider appellants' contentions, and determine whether there was an abuse of discretion by the superior court. We first note that of the five appellants' contentions, three of them are not properly before this court as grounds for reversal of the superior court judgment. We refer to the two arguments for substantial compliance with the claims procedure, and the argument based on an action for violation of civil rights.

Appellants contend that they substantially complied with the claim filing requirements of sections 911.2 and 945.4 when they gave respondent's deputy a "formal written report" of the events in question within 100 days of the accrual of the alleged cause of action. It is our observation that this contention is inherently inconsistent with the relief sought in the superior court. As outlined above, the sequence of events by which one gets into court with a petition under section 946.6, requires first a failure to file a timely claim; then an application for leave to present a late claim followed by the denial of that application; then a petition in superior court for relief from the requirement of filing a claim. Section 946.6 specifies that the petition must show, inter alia, ". . . the reason for failure to present the claim within the time limit . . . ." Clearly, then, an argument on appeal that the petition should have been granted because a timely and substantially complete claim was in fact filed, is contradictory. We conclude that the issue of substantial compliance with the claim filing requirements of sections 911.2 and 945.4 was not within the scope of the superior court proceeding, and that therefore no abuse of discretion could be founded upon such an argument. In addition, as we stated in footnote 1, appellants now seek to escalate a claim for injuries or criminal complaint into a claim against the county.

Appellants also contend that they substantially complied with the claim filing requirements of sections 911.2 and 945.4 when they filed with respondent claims for damages for fraud within 100 days of discovery of that fraud. The claims they refer to were submitted to respondent as part of their applications for leave to present late claims. (See FACTS, Ante....

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