Wilson v. People By and Through Dept. of Public Works

• Decision Date: 11 April 1969
• Court: California Court of Appeals Court of Appeals
• Parties: Edith WILSON, Plaintiff and Appellant, v. The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent. Civ. 33043.

Page 906

76 Cal.Rptr. 906

271 Cal.App.2d 665

Edith WILSON, Plaintiff and Appellant, v. The PEOPLE of the State of California, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent.

Civ. 33043.

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

April 11, 1969.

Herbert Manasse, Hollywood, for appellant.

Harry S. Fenton, Sacramento, R. B. Pegram, Richard L. Franck, Wendell Mortimer, Jr., Los Angeles, for respondent.

FLEMING, Associate Justice.

On 10 January 1967 plaintiff filed a complaint for damages against Southern California Rapid Transit District, the County of Los Angeles, and Does I through VI, alleging personal injuries incurred on 5 August 1966 in stepping from a bus to the sidewalk and pleading prior presentation to the Transit District and the County of a written claim for damages in accordance with Government Code, section 945.4. Subsequently plaintiff applied to the State Board of Control for leave to present a late claim for damages against the State of California on the theory the State had some responsibility for the condition of the sidewalk. On the denial of her application by the State Board she petitioned the superior court for relief under section 946.6 of the Government Code, and on 30 June 1967 she obtained an order relieving her of the requirement for the presentation of a written claim as a prerequisite to suit against the State.

Subsection (f) of the section under which plaintiff obtained relief provides:

'If the court makes an order relieving the petitioner from the provisions of Section 945.4, Suit on the cause of action to which the claim relates Must be filed in such court Within 30 days thereafter.' (Italics added.)

Plaintiff took no action within 30 days of the order of 30 June, but on 16 August 1967 she served a copy of her complaint on the State Board as Doe I. The State of California demurred on the ground of lack of compliance with the 30-day period for filing suit, and its demurrer was sustained by the trial court without leave to amend. Plaintiff has appealed the subsequent order dismissing the State of California as a defendant.

Plaintiff could have complied with section 946.6(f) by filing a separate action against the State of California during the 30-day period, or by amending her complaint to name the State as a party during the 30-day period, or by serving the State with a copy of the complaint during the 30-day period. She took none of these steps, but she claims compliance with the section on the theory that her original complaint was filed against the State of California as a Doe and the subsequent service of the complaint on the State related back to the time of filing suit against the State to the time of the original complaint. She relies on Day v. Western Loan & Bldg. Co., 42 Cal.App.2d 226, 231, 108 P.2d 702, for the proposition that where an original complaint has been filed against a Doe within the statutory period, an amended complaint may be filed against a named defendant after the statute has run so long as it does not state a new or different cause of action from that in the original complaint.

We do not find Day v. Western Loan & Bldg. Co. decisive in the present case. Plaintiff's original complaint failed to state a cause of action against the State of California as a Doe, because it failed to allege what it could not in fact allege--compliance with the statutory procedure for the presentation of a claim as a prerequisite to an action for damages against the State of California. (Code Civ.Proc. § 313.) As the court said in Chas. L. Harney, Inc. v. State of California, 217 Cal.App.2d 77, 90--91, 31 Cal.Rptr. 524: 'An action may be brought against the State of California only in the manner and within the time allowed by statute. (Cal.Const., art. XX, § 6; (citations.)) Where the right to bring suit against the state is granted, the state may impose conditions as a prerequisite to the commencement of any action against it (citation) and place limitations upon the enforcement of such action (citation). The conditions imposed by statute as a prerequisite to an action against the state, while not always jurisdictional (citation), are mandatory and must be...