Wadley v. Los Angeles County

• Decision Date: 16 July 1962
• Parties: Jack Russell WADLEY, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. Civ. 25879.
• Court: California Court of Appeals Court of Appeals

Page 154

23 Cal.Rptr. 154

205 Cal.App.2d 668

Jack Russell WADLEY, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

Civ. 25879.

District Court of Appeal, Second District, Division 4, California.

July 16, 1962.

Everett, E. Demler and John R. Nimocks, Long Beach, for plaintiff and appellant.

Harold W. Kennedy, County Counsel, Los Angeles County, and Lloyd S. Davis, Deputy Counsel Counsel, for defendant and respondent.

BURKE, Presiding Justice.

Plaintiff was injured on May 11, 1960, when the motorcycle which he was riding allegedly struck a defect in a county highway causing plaintiff to sustain personal injuries. The complaint alleged filing of a claim with defendant County of Los Angeles on February 20, 1961, some nine months after the accident occurred. Defendant County of Los Angeles interposed a general demurrer to the complaint which was sustained by the court without leave to amend, upon the grounds the claim was not filed within one hundred days after the date of the accident as required by sections 710 and 715 of the Government Code. A judgment of dismissal was entered from which plaintiff appeals.

Plaintiff contends that the Supreme Court, in the case of Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, eliminated all governmental immunity from liability for tort from which it follows, plaintiff asserts, that statutes imposing the filing of claims as a prerequisite to suit are unconstitutional and void. Plaintiff argues that the claims requirements are dependent for their existence upon the doctrine of sovereign immunity.

First, it should be pointed out that in the Muskopf case, supra, the Supreme Court clearly distinguished between the doctrine of sovereign governmental immunity as established by court rule and governmental immunity established by statute. It asserted that the doctrine of governmental immunity was originally court-made and reviewed the many statutes wherein the State Legislature waived substantive immunity in certain areas. In fact, the argument was presented to the Supreme Court that the Legislature, having removed immunity in certain areas, has in effect retained it in all others and therefore the court was without the power to remove the immunity in the remaining areas not covered by legislative enactments. The Supreme Court rejected this argument, stating that the Legislature had only intended to say (pp. 218-219, 11 Cal.Rptr. 93, 359 P.2d 461), '* * * that in the areas indicated there shall be no governmental immunity. [The statutes] leave to the court whether it should adhere to its own rule of immunity in other areas.' Thus, what the court did in Muskopf, supra, was to declare that the immunity of public agencies for the torts of its agents, insofar as said immunity has been created by judicial action, is no longer of force and effect.

Section 6 of article XX of the State Constitution prescribes that suits may be brought against the state in such manner and in such courts as shall be directed by law. Sections 710 and 715 of the Government Code prescribe the manner in which and the time within which suits may be filed against a local public entity and require the filing of a written claim as a condition precedent to the filing of such suits.

The purposes of claims statutes have been recognized as valid in such cases as Hochfelder v. County of Los Angeles, 126 Cal.App.2d 370, p. 374, 272 P.2d 844, p. 847, where the court stated:

'One of the reasons for this type of legislation, requiring claims against a county to be first presented to the legislative body before suit is commenced, is to prevent public funds from being consumed in needless litigation by affording the county an opportunity for amicable adjustment before it could be charged with the cost of a suit and incur other expenses. Crescent Wharf, etc., Co. v. City of Los Angeles, 207 Cal. 430, 437, 278 P. 1028; Western Salt Co. v. City of San Diego, 181 Cal. 696, 186 P. 345. Another reason is that it provides the public body responsible for making preparations for the fiscal year with an opportunity to be informed in advance as to the indebtedness or liability that it may be expected to meet. Crescent Wharf, etc., Co. v. City of Los Angeles, supra; Arbios v. County of San Bernardino, 110 Cal. 553, 555, 42 P. 1080. A third reason, of course, is to give the county prompt notice of a claim in order to enable the Board to investigate and inform themselves of the merits or demerits of a claim while the evidence is still fresh and the witnesses available. See David, California Municipal Tort Liability, 7 So.Cal.L.Rev. 373, 402-405.'

The cause of action upon which plaintiff proceeded in the case before us is based upon an alleged dangerous or defective condition of public property and is therefore governed by the provisions of the Public Liability Act of 1923 (Gov.Code, §§ 53050 et seq.).

Since the Muskopf decision (Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457) there have been a number of decisions of the District Court of Appeal holding that the provisions of the Public Liability Act of 1923 must be satisfied before a public agency can be held liable thereunder. (Akers v. City of Palo Alto, 194 Cal.App.2d 109, 122, 14 Cal.Rptr. 767; Ngim v. City & County of San Francisco, 193 Cal.App.2d 138, 144, 13 Cal.Rptr. 849; Kotronakis v. City & County of San Francisco, 192 Cal.App.2d 624, 631, 13 Cal.Rptr. 709.)

In the Kotronakis case, supra (192 Cal.App.2d 624, at 631, 13 Cal.Rptr. 709, at 713), the court declared:

'We are of the opinion that Muskopf has no effect upon the Public Liability Act. It is one thing for the courts to abandon a court made rule of immunity. It is quite another thing to say that a decision which does so also, in effect, amends or repeals a statute whereby the Legislature has waived the immunity but with a provision that certain conditions must be met before the injured party can recover. The courts are not the primary lawmakers of this state; the Legislature is. 'The legislative power of this State shall be vested in a Senate and Assembly which shall be designated 'The Legislature of the State of California,' * * *' Const. Cal. art. IV, § 1, and see art. III, § 1; Allied Properties v. Department of Alcoholic Beverage Control, 53 Cal.2d 141, 346 P.2d 737, and Sandstrom v. California Horse Racing Board, 31 Cal.2d 401, 412, 189 P.2d 17, 3 A.L.R.2d 90. 'A judge is not required to approve every statute or precedent by which his decision is governed. Like other citizens he is bound, not to believe in a particular law, but to obey it.' Weil v. Weil, 37 Cal.2d 770, 776, 236 P.2d 159, 161; and see Lucas v. City of Los Angeles, 10 Cal.2d 476, 485, 75 P.2d 599. We find nothing in the Muskopf opinion...