DILLARD ET AL v. KERN COUNTY

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District Court of Appeal, Fourth District, California.

DILLARD ET AL. v. KERN COUNTY.

Civ. 3017.

Decided: February 19, 1943

Chas. I. Rosin, of Los Angeles, for appellants. Borton, Petrini, Conron & Borton, of Bakersfield, for respondent.

This is an appeal from a judgment after sustaining a demurrer to a second amended complaint without leave to amend.

Geneva Dillard is the widow, and Arley Dillard is the minor child of Henry Dillard who was killed in a motor vehicle collision in Kern County on September 24, 1940. They sought to recover damages resulting from his death.

The sole question presented is whether or not the claim for damages filed by plaintiffs with defendant conformed to the requirements of section 4075 of the Political Code, the material portion of which provides as follows:

“In presenting any claim not founded upon contract full details as to the nature of the claim, the time and place when and where it arose, the public property and public officers or employees alleged to be at fault, the nature, extent and amount of the injury or damage claimed, and all other details necessary to a full consideration of the merit and legality of such claim shall be stated in writing signed by the claimant or someone authorized by him * * *.”

A copy of the claim is attached to the pleading. It reads as follows:

“Claim of Geneva Dillard, Widow of Henry Dillard, Deceased, and Arley Dillard, a Minor Child of Henry Dillard, Deceased:

“Damages suffered by claimants, Geneva Dillard, widow of Henry Dillard, Deceased, and Arley Dillard, a minor child of Henry Dillard, Deceased, as a result of the negligence of the County of Kern and the State Department of Forestry, State of California, through their agents and servants causing truck operated by said County of Kern and the California State Department of Forestry, to collide with automobile in which claimants' husband and Father, Henry Dillard, deceased, was riding, to–wit: On September 24, 1940, at approximately the hour of 8:00 o'clock P. M. at the intersection of the Edison Highway and Weedpath Road, Kern County, State of California:

“Death of Husband and Father of claimants and loss of his support, society and comfort․$30,000.00.

“Geneva Dillard by Her Mark

“Allan Hamilton (?) (Signed)

“Cora A. Prichard (Signed)

“Witness to said Mark and Signature.”

From a reading of the claim it is at once apparent that it does not conform to the requirements of the statute because it fails to give the names of the “employees alleged to be at fault.”

Prior to the adoption of the various public liability statutes in California no right of action existed against a public agency for damages resulting from tort. As the right of action is a creature of statute, the Legislature may impose any restrictions it deems reasonable upon the exercise of such right, and conformance with those restrictions is an indispensable requirement which must be met by a claimant before an action may be brought. Artukovich v. Astendorf, 21 Cal.2d 329, 131 P.2d 831; Redlands High School Dist. v. Superior Court, 20 Cal.2d 348, 125 P.2d 490; Eppstein v. City of Berkeley, 52 Cal.App.2d 395, 126 P.2d 365.

Plaintiffs seek to escape the rigor of the foregoing rule by urging the sufficiency of the claim because it was “a substantial compliance with the statute” and that the defendant “has waived, and is estopped to claim, any insufficiency in compliance.”

The first contention is sufficiently answered by the cases already cited and the many cases cited therein. Where required information is entirely omitted from the claim there can be no substantial compliance with the statute.

The questions of waiver and estoppel, as well as substantial compliance with the statute, were considered in Hall v. City of Los Angeles, 19 Cal.2d 198, 120 P.2d 13, 16, where it was said:

“Plaintiff's contention that defendant by investigating and rejecting the claim waived any defects therein cannot be sustained. In the Spencer case, supra [Spencer v. City of Calipatria, 9 Cal.App.2d 267, 49 P.2d 320], an unverified claim was filed with the city and after investigation the city made an offer of compromise which plaintiff rejected. At no time did the city object to the defective form of plaintiff's claim. In holding that the city was not estopped to assert the defense of failure to comply with the statutory requirements relative to the claim the court observed that the city was powerless to waive compliance with the statutory provisions. The holding of the Spencer case was expressly approved by the Supreme Court in Douglass v. City of Los Angeles, 5 Cal.2d 123, 53 P.2d 353, and was declared to be the law in all cases coming within its purview. Since the city is powerless to waive a compliance with the statute, actual knowledge on the part of the city officials of the facts required to be stated in the claim does not dispense with the filing of a proper claim. Kline v. San Francisco Unified School District, 40 Cal.App.2d 174, 104 P.2d 661, 105 P.2d 362.

“Plaintiff's final contention is that defendant is estopped to raise the defense of the insufficiency of the claim because of its failure to specially plead such defense in the answer. This proposition must be rejected for the question as to the sufficiency of plaintiff's claim was placed in issue by defendant's general denial of plaintiff's allegation that she had filed her claim with the city. Since the statutory requirements are mandatory and compliance therewith is a prerequisite to the maintenance of a suit for the damages claimed (Cooper v. County of Butte, supra [17 Cal.App.2d 43, 61 P.2d 516], and Sandstoe v. Atchison, T. & S. F. Ry. Co., supra [28 Cal.App.2d 215, 82 P.2d 216]), the burden of proof of such compliance was on plaintiff. Since plaintiff failed to sustain this burden the court properly entered the judgment of dismissal.”

As plaintiffs failed to file a proper claim for the damages alleged to have been suffered by them they cannot maintain this action. This conclusion makes it unnecessary for us to consider other defects in the claim and its verification argued by counsel.

The judgment is affirmed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concurred.