Whitson v. La Pay

• Decision Date: 06 September 1957
• Citation: 153 Cal.App.2d 584,315 P.2d 45
• Parties: Carl WHITSON, Plaintiff and Appellant, v. George LA PAY, Defendant and Respondent. Civ. 22256.
• Court: California Court of Appeals Court of Appeals

Page 45

315 P.2d 45

153 Cal.App.2d 584

Carl WHITSON, Plaintiff and Appellant, v. George LA PAY, Defendant and Respondent.

Civ. 22256.

District Court of Appeal, Second District, Division 2, California.

Sept. 6, 1957.

Rehearing Denied Oct. 3, 1957.

Hearing Denied Nov. 5, 1957.

Carl Whitson, in pro. per.

Walhfred Jacobson, City Atty., Long Beach and John R. Nimocks, Deputy City Atty., Long Beach, for respondent.

RICHARDS, Justice pro tem.

This is an appeal by plaintiff from a summary judgment in favor of defendant.

The plaintiff's complaint alleges that the defendant, a duly appointed police officer of the city of Long Beach, while on duty as such police officer, assaulted the plaintiff causing him personal injuries for which the plaintiff seeks to recover damages. Defendant answered the complaint with a general denial and, as an affirmative defense, alleged the failure of the plaintiff to file a verfied claim with the city of Long Beach before the commencement of suit as required by Ordinance No. C-1436 of that city.

Defendant thereafter moved for a summary judgment, and in support thereof filed the affidavit of the City Clerk of the city of Long Beach, setting forth Ordinance No. C-1436, the pertinent portions of which are as follows:

'Sec. 7. No suit for damages or money shall be brought against any officer, agent, employee, board member or commission member until a claim for such damages or money has been served upon such officer, agent, employee, board member or commission member, and a copy of such claim filed with the City Clerk of the City of Long Beach.

'Sec. 8. The claim shall be in writing, shall be signed and verified by the claimant, and shall give the claimant's post office and residence address. The claim shall state the time, place and manner in which the claim arose, the nature and extent of the injury or damages claimed, and all other details necessary to a full consideration of the merit and legality of such claim. If the claim consists of more than one item, the claim must be fully itemized.

'Sec. 9. Any claim for damages or money against any officer, agent, employee, board member or commission member must be served upon such person, and a copy thereof filed with the City Clerk of the City of Long Beach within ninety (90) days after the occurrence or the accident from which the damages or claim for money arose.'

Defendant filed his own affidavit to the effect that he had not been served with nor had he received by mail or otherwise any statement of the claim against him. The plaintiff filed a counteraffidavit alleging that he mailed 'a notice of injury' to the defendant soon after the injury was inflicted and also alleging that he 'mailed to the City of Long Beach, California, a copy of a Claim' which was mailed to the defendant, to the chief of police and to the city manager. The plaintiff's affidavit further states 'That said notice advised the said City and the defendant, George La Pay, of all the facts necessary to have an investigation. An investigation was held by said City Manager. A copy of said Notice is now in the hands of the City Attorney.' The plaintiff's affidavit is notibly devoid of a direct allegation of compliance with the ordinance. In response to plaintiff's counteraffidavit the defendant filed an affidavit of the deputy city attorney setting forth in haec verba the document signed by the plaintiff and directed to the chief of police and the city manager. This unverified document complains of defendant's conduct and relates in some detail his acts and that injuries resulted therefrom, and states 'After my doctor and myself have decided to what extent I am injured I will, of course, filed a claim with the City of Long Beach, California, for the damages.'

In Cone v. Union Oil Co., 129 Cal.App.2d 558, at page 562, 277 P.2d 464, at page 467, the court said:

'The obvious purpose to be served by the summary judgment procedure is to expedite litigation by avoiding needless trials. While it is not a substitute for a regular trial and does not authorize the trial of any bona fide issues of fact which the affidavits may reveal, it permits the court to pierce the allegations of the pleadings to ascertain whether a genuine cause of action in fact exists or whether the defense interposed is sham or feigned.'

The rules applicable to a motion for summary judgment under Section 437c of the Code of Civil Procedure are stated in Desny v. Wilder, 46 Cal.2d 715, at page 725, 299 P.2d 257, at page 261, as follows:

'The principles to be observed in proceeding under that section are stated as follows in Eagle Oil & Refining Co. v. Prentice (1942), 19 Cal.2d 553, 555-556, 122 P.2d 264: The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion 'has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. [Citations.] * * * [T]he better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts. [Citation.]' (See also Gardner v. Jonathan Club (1950), 35 Cal.2d 343, 347, 217 P.2d 961; Hardy v. Hardy (1943), 23 Cal.2d 244, 245, 143 P.2d 701; Walsh v. Walsh (1941), 18 Cal.2d 439, 441, 116 P.2d 62.) A summary judgment is proper only if the affidavits in support of the moving party 'would be sufficient to sustain judgment in his favor, and * * * [his opponent] does not 'by affidavit or affidavits * * * show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.' [Citations.]' (Coyne v. Krempels (1950), 36 Cal.2d 257, 261, 223 P.2d 244.) In other words, the affidavits are to be construed with all intendments in favor of the party opposing the motion--here, plaintiff.'

Construing the plaintiff's affidavit in opposition to the defendant's motion in accordance with the stated rule, it does not appear that a triable issue of fact is presented relating to the filing of a verified claim complying with the ordinance provisions above quoted. The question then presented is whether the filing of a verified claim as a condition precedent to filing suit as required by the ordinance provisions is essential to a recovery by the plaintiff. The question must be answered in the affirmative. In Slavin v. City of Glendale, 97 Cal.App.2d 407, 217 P.2d 984, 985, ...