Tubbs v. Southern California Rapid Transit Dist.

• Decision Date: 14 November 1967
• Citation: 67 Cal.2d 671,63 Cal.Rptr. 377,433 P.2d 169
• Court: California Supreme Court
• Parties: , 433 P.2d 169 Elizabeth TUBBS, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant and Respondent. L.A. 29490.

Page 377

63 Cal.Rptr. 377

67 Cal.2d 671, 433 P.2d 169

Elizabeth TUBBS, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant and Respondent.

L.A. 29490.

Supreme Court of California,

In Bank.

Nov. 14, 1967.

Aaron P. Moss and Edward L. Lascher, Van Nuys, for plaintiff and appellant.

Harry M. Hunt and Victor Rosenblatt, Los Angeles, for defendant and respondent.

McCOMB, Justice.

Plaintiff appeals from a judgment of dismissal in favor of defendant following her failure to amend her second amended complaint after the sustaining of a general demurrer.

Facts: On May 25, 1964, plaintiff filed a complaint for damages for personal injuries alleged to have been suffered by her on May 27, 1963, while she was a passenger on one of defendant's busses that collided with another bus operated by defendant. Plaintiff alleged that she had presented a claim for damages with defendant's predecessor, the Los Angeles Metropolitan Transit Authority, a public corporation, on July 5, 1963. Defendant's demurrer on the ground that the action was barred by sections 945.4 and 945.6 of the Government Code ¹ was sustained, with leave to amend.

In her first amended complaint, plaintiff allged the presentation of a claim to defendant and incorporated by reference a copy thereof as an exhibit. Defendant's demurrer was again sustained on the ground that the statute of limitations had run.

Plaintiff's second amended complaint is in three counts and contains the necessary allegations of negligence, proximate cause, agency, and damages. In the first count, she omitted the allegation in the original and first amended complaint that a claim had been presented to defendant, and alleged that defendant failed to file a statement of facts as required by section 53051 of the Government Code and was therefore subject to suit without the necessity of presentation of a claim.

In the second count, plaintiff alleged that she presented a claim for a portion of her damages 'within the time provided by law,' and that on March 4, 1964, she caused to be delivered to defendant's agent certain bills, reports and statements constituting an amended claim, which she contends extended the period of limitation for bringing an action.

In the third count, she realleged the presentation of a claim and further made certain allegations which she contends estop defendant from raising the bar of the statute of limitations.

Question: Did the second amended complaint state a cause of action against defendant?

No. The trial court properly sustained the demurrer to the whole complaint for the reason that plaintiff's cause of action was barred by the statute of limitations. Plaintiff's alleged cause of action arose on May 27, 1963. At that time, as a prerequisite to maintaining an action for damages against a local public entity, claims for physical injuries were required to be presented to the entity not later than 100 days after the accrual of the cause of action. (Former Gov.Code, §§ 710, 715.)

On September 20, 1963, the California Tort Claims Act became effective, and the procedural provisions for claims presentation and actions against public entities were enacted by the statutes of 1963, chapter 1715. Section 152 of chapter 1715 reads:

'(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.

'(d) Subject to subdivision (b), Where a cause of action accrued prior to the effective date of this act and A claim thereon was presented prior to the effective date of this act, The provisions of this act so far as applicable Shall apply to such claim and, If such claim has not been acted upon by the board prior to the effective date of this act, Such claim shall be deemed to have been presented on the effective date of this act.' (Italics added.) (See Legislative Committee Comment to Stats.1963, ch. 1715, § 152, p. 3424, following Gov.Code, § 900.)

Plaintiff falls within subdivision (d) quoted above. Her cause of action accrued prior to the effective date of the 1963 act, a claim had been presented to the public entity within 100 days of the accrual of her cause of action, the claim had not been acted on, and her cause of action was not barred by the one-year statute of limitations (former Gov.Code, § 719) applicable prior to the new tort claims act. Her claim therefore was deemed to have been presented on September 20, 1963.

Under the 1963 act, the governing body of the public entity to whom a claim has been presented is allowed 45 days thereafter to act on the claim, and if it fails or refuses to act within the time prescribed the claim is deemed to have been rejected on the last day of the period within which the board was required to act (Gov.Code, § 912.4); suit against the public entity must be commenced within six months after the date the claim is acted upon, or is deemed to have been rejected (Gov.Code, § 945.6; Code Civ.Proc., § 342.) Therefore, no action having been taken by defendant within the 45-day period, the claim was rejected by operation of law on November 4, 1963, and the six-months statute of limitations ran on May 4, 1964. Plaintiff's complaint was not filed until May 25, 1964.

In the first count of the second amended complaint plaintiff alleges that defendant failed to comply with section 53051 of the Government Code and that pursuant to section 945.5, defendant was subject to suit without the necessity of presentation of a claim. Section 53051, enacted in 1963 (Stats.1963, ch. 1805, p. 3649, § 2; amended Stats.1965, ch. 653, p. 2020, § 32) requires a public entity (except the state, cities and counties) to file with the Secretary of State and county clerk its name and address, and the names and addresses of its governing board members and officers, in an indexed Roster of Public Agencies. Section 945.5 ² provided that where the public agency fails to file such information, presentation of a claim is not required.

These two statutes (Gov.Code, §§ 945.5 and 53051) are part of chapter 1805 and were enacted separately from the claims procedures recommended by the Law Revision Commission and adopted by the Legislature in chapter 1715. (See Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar) p. 774.) The purpose of the statute requiring information for the Roster of Public Agencies (§ 53501) was to provide a means for identifying public agencies and the names and addresses of designated officers needed to enable or assist a person to comply with any applicable claims procedure. Neither section 945.5 nor 53051 was made retroactive, and a claimant who has actually presented a claim with the proper public entity may not invoke those sections to excuse compliance with the claims statutes and circumvent the special six-month statute of limitations.

In order to obviate the bar of the statute of limitations, plaintiff, in the first count of her second amended complaint, omitted any reference to the presentation of her claim. While not denying that a claim was filed, she argues that it was a 'superfluous act' and should be disregarded. To accept this argument is to ignore the clear language of the Legislature in chapter 1715, section 152, that the new act applies to all unbarred causes of action that accrued prior to September 20, 1963 (the effective date of the new act) for which claims had been presented and not acted on. The Legislature intended that the procedural provisions relating to claims and actions against public entities apply prospectively to any previously accrued cause of action that was not already barred under a previous claim procedure or statute of limitations as of September 20, 1963 (see Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar) supra, § 11.4, p. 464), and it separated those unbarred causes of action on which claims had not been presented (subd. (c)) from those on which claims had been presented but not acted upon (subd. (d)) prior to September 20, 1963. Plaintiff's cause of action is governed by subdivision (d), and she cannot now be heard to say that the claim which she was required to, and actually did, present as a mandatory prerequisite to maintaining an action, was a 'mere superfluity,' and thereby seek the protection of statutes that were manifestly designed to assist persons who had not filed claims.

There is likewise no merit to plaintiff's contention that the usual one-year statute of limitations, and not the special six-month statute, applies to her cause of action by virtue of section 945.8 of the...