FARRELL ET UX v. PLACER COUNTY ET AL

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

FARRELL ET UX. v. PLACER COUNTY ET AL.

No. 12425.

Decided: June 11, 1943

Morris, Jaffa & Sumski, of San Francisco, for appellants. Lowell L. Sparks, Dist. Atty, of Auburn, Attorney for Respondent, County of Placer. Loyd E. Hewitt, Dist. Atty., of Yuba City, and Charles V. Barfield, of San Francisco (Thomas F. Sargent, of Auburn, and John J. Healy, Jr., of San Francisco, of counsel), for respondent Sutter County.

Plaintiffs sued the two defendant counties seeking to recover damages resulting from personal injuries alleged to have been sustained by plaintiff Lena Farrell by reason of the defective and dangerous condition of a highway and bridge situated partly in each of the defendant counties. The complaint was in four counts. Defendants filed general and special demurrers. Said demurrers were sustained with leave to amend but plaintiffs declined to file an amended complaint. Defendants then moved for a dismissal which motion was granted and a judgment of dismissal was entered. Plaintiffs appeal from said judgment.

The trial court's opinion is included in the transcript and it shows that the trial court's ruling was based upon the failure of plaintiffs to allege the filing of verified claims against defendants within the time provided by law. It is conceded by all that the action was brought under the so–called public liability act, Stat.1923, p. 675; Deering's General Laws, Act 5619, and that the applicable provisions of law relating to the filing of claims thereunder read as follows: “Whenever it is claimed that any person has been injured or any property damaged as a result of the dangerous or defective condition of any public street, highway, building, park, grounds, works or property, a verified claim for damages shall be presented in writing and filed with the clerk or secretary of the legislative body of the municipality, county, city and county, or school district, as the case may be, within ninety days after such accident has occurred. Such claim shall specify the name and address of the claimant, the date and place of the accident and the extent of the injuries or damages received.” § 1 of Stat. 1931, p. 3475; Deering's General Laws, Act 5149.

Plaintiffs further concede in their opening brief that “a formal verified claim in writing was not filed until after the expiration of the ninety days”. Plaintiffs' complaint contained some allegations regarding the filing of claims but the uncertainty of said allegations was attacked by special demurrers. It now appears that plaintiffs rely upon alleged oral statements made by plaintiff Lena Farrell to an “agent” of the defendants within the ninety days; upon formal, verified claims filed after the expiration of the ninety days; and upon an estoppel based upon the alleged statements made by the “agent” of defendants to plaintiff Lena Farrell.

The complaint was filed on May 27, 1939. It alleged that injuries had been sustained on May 31, 1938, being almost one year prior to the filing of the complaint. With respect to the time of filing claims against the defendants it was merely alleged in the first count that verified claims against defendants had been “heretofore” filed.

The second count incorporated by reference all the allegations of the first count and it was then alleged in general terms that between May 31, 1938, and August 29, 1938, statements were made to plaintiffs by and on behalf of defendants, which statements were relied upon by plaintiffs and that defendants should therefore be “estopped to deny that the verified claims in writing filed with their respective boards of supervisors, as hereinabove alleged, were filed within the time provided by law therefor.”

The third count incorporated by reference all the allegations of the first count except those relating to the filing of verified claims and then alleged in detail certain facts relied upon to create an estoppel. It was alleged on or about June 13, 1938, a person who was the “agent” of the defendants, called upon plaintiff Lena Farrell, accompanied by a stenographer, during the time said plaintiff was a patient in the hospital as a result of her injuries; that plaintiff Lena Farrell “then and there made plaintiffs' claim against defendants and each of them for damages resulting from her injuries received as aforesaid, and said claim, including the place where the accident occurred, how it occurred, when it occurred and the nature of the injuries of said plaintiff Lena Farrell and all other matters required and requested by defendants was then and there reported in shorthand by said stenographer”; that the agent discussed a settlement with said plaintiff and advised her not to employ an attorney; that about ten days later, said agent again called at the hospital to discuss settlement but that said plaintiff stated that she desired to recover her health before specifying the amount of plaintiff's damages; that said agent then represented that it would be satisfactory to defendants for plaintiffs to do so; that said plaintiff remained in the hospital by reason of her injuries until the middle of September 1938; that plaintiffs believed and relied upon said representations and did not employ an attorney or take any steps or proceedings for several months; that defendants should be and are “estopped to deny that the said claim filed by plaintiffs on or about June 13, 1938, as aforesaid and recorded in shorthand by said stenographer, as aforesaid was filed in the form and manner provided by law.”

The fourth count incorporated by reference all the allegations of the first count of the complaint and then realleged substantially all of the detailed allegations of the third count. It was then alleged that defendants should be and are “estopped to deny that said verified claims in writing filed with their respective boards of supervisors were filed within the time provided by law therefor”.

The demurrers as to each count were both general and special, it being specified by way of special demurrer as to each count that it did not appear whether any verified claim had been filed as to either defendant within ninety days from the date of the accident as required by law.

We find no error in the action of the trial court in sustaining said demurrers and in entering the judgment of dismissal upon plaintiffs' failure to amend. As we understand plaintiffs' contentions on this appeal they are (1) that plaintiffs alleged sufficient facts to show a “substantial compliance” with the law relating to the filing of claims and (2) that they alleged sufficient facts to show an estoppel on the part of defendants to deny either (a) that the so–called claims made on June 13, 1938, which were admittedly orally made and were not verified, constituted valid claims filed in the manner and form required by law or (b) that the verified claims “heretofore” filed, which were admittedly not filed within the ninety day period, were filed within the time provided by law.

We find no merit in the contention that plaintiffs' complaint contained allegations sufficient to show a “substantial compliance” with the law relating to the filing of claims. As to the so–called claims made on June 13, 1938, it was not alleged that the alleged oral statements made by plaintiff Lena Farrell at that time to the alleged agent of defendants were “verified” or that they were reduced to writing or “presented in writing and filed”. As to the alleged verified claims “heretofore” filed, it was not alleged that such claims were filed within the ninety day period. While the facts before the courts in the two cases cited by plaintiffs were held to constitute a substantial compliance (Kelso v. Board of Education, 42 Cal.App.2d 415, 109 P.2d 29; Sandstoe v. Atchison, T. & S. F. Co., 28 Cal.App.2d 215, 82 P.2d 216) there are no comparable facts before us here. As was said in Hall v. City of Los Angeles, 19 Cal.2d 198, at page 202, 120 P.2d 13, at page 15, “Substantial compliance cannot be predicated upon no compliance” and it has been held that there can be no substantial compliance unless a written, verified claim is filed within the time prescribed. Spencer v. City of Calipatria, 9 Cal.App.2d 267, 49 P.2d 320; Johnson v. City of Glendale, 12 Cal.App.2d 389, 55 P.2d 580.

Nor do we find any merit in the contention that plaintiffs alleged sufficient facts to show an estoppel on the part of defendants. It is only in rare cases that the doctrine of estoppel may be invoked against a county or municipal corporation (First Trust & Sav. Bank v. City of Pasadena, 21 Cal.2d 220, 130 P.2d 702; 10 Cal.Jur. 651) and it has been consistently held in this state that there can be no waiver or estoppel resulting from the acts of public officials in dealing with persons required to file claims against counties and municipal corporations under such claims statutes. Hall v. City of Los Angeles, 19 Cal.2d 198, 120 P.2d 13; Kline v. San Francisco U. School District, 40 Cal.App.2d 174, 104 P.2d 661, 105 P.2d 362; Cooper v. County of Butte, 17 Cal.App.2d 43, 61 P.2d 516; Johnson v. City of Glendale, 12 Cal.App.2d 389, 55 P.2d 580.

The judgment is affirmed.

SPENCE, Justice.

NOURSE, P. J., and DOOLING, J., pro tem., concur.