KNIGHT v. CITY OF LOS ANGELES

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

KNIGHT et al. v. CITY OF LOS ANGELES.

Civ. 14546.

Decided: December 19, 1944

E. H. Delorey and Frank L. Simons, both of Los Angeles, for respondents. Ray L. Chesebro and Victor P. Spero, both of Los Angeles, for appellant.

This is an appeal from an order granting plaintiffs' motion for a new trial in an action to recover damages for injuries to real property alleged to have resulted from the maintenance by defendant of a public street in a dangerous condition.

So far as material here, the essential facts are these:

Plaintiffs brought an action, pursuant to the provisions of the Public Liability Act of 1923, Statutes of 1923, page 675, Deering's California General Laws, Act 5619, to recover damages for injuries to real property alleged to have been caused by the action of defendant municipality in maintaining a public street in a dangerous condition. At the time of the trial it was stipulated that there should be first tried the issue of the legal sufficiency of the claim1 filed with defendant by plaintiffs. There was introduced in evidence plaintiffs' claim a copy of which is set forth in a footnote to this opinion.

Defendant objected that the claim was fatally defective in that it failed to specify the date of the accident. The trial judge sustained the objection, whereupon plaintiffs offered to prove the allegations of their complaint including the allegations relative to the claim filed by them. This offer was denied and the action was dismissed and judgment entered in favor of defendant. Thereafter a motion for a new trial was granted. It is from this last order the present appeal is prosecuted.

It is necessary for us to determine three questions which will be stated and answered hereunder seriatim:

First: Did plaintiffs' claim substantially specify the date of the accident which is the basis of the present action?

This question must be answered in the negative and is governed by the following pertinent rules of law:

1) In an action to recover damages brought pursuant to the provisions of Article I, section 14 of the Constitution of the State of California alleged to have been caused by the negligent acts of a municipality, it is a prerequisite to the maintenance of such action that a claim be filed with the municipality as provided in Act 5149, Statutes of 1931, page 2475, Deering's California General Laws 1937, page 2204. Powers Farms v. Consol. Irrig. Dist., 19 Cal.2d 123, 126 et seq., 119 P.2d 717. See also Hall v. City of Los Angeles, 19 Cal.2d 198, 203, 120 P.2d 13.

2) Knowledge of the date of the accident acquired by municipal officials other than through the claim filed with the municipality does not cure a defective allegation of the date in the claim. Powers Farms v. Consol. Irrig. Dist., supra, 19 Cal.2d at page 130, 119 P.2d 717.

3) Neither a date in the verification of a claim nor a date of the filing of a claim constitutes a compliance with the statutory mandate that a claim shall specify the date of the accident. Shipman v. Forbes, 97 Cal. 572, 575, 32 P. 599; Kelso v. Board of Education, 42 Cal.App.2d 415, 421, 109 P.2d 29.

4) It is not a substantial compliance with the requirement of Act 5149, supra, that the date of the accident be specified in the claim to allege that the accident occurred ‘on and after’ a given date. Kahrs v. County of Los Angeles, 28 Cal.App.2d 46, 47 et seq., 82 P.2d 29.

5) To specify a ‘date’ means to state the year, the month, and the day. Shipman v. Forbes, 97 Cal. 572, 574, 32 P. 599; Cole v. Board of Supervisors of Orange County, 27 Cal.App. 528, 530, 150 P. 784; Estate of Price, 14 Cal.App. 462, 463 et seq., 112 P. 482.

From the foregoing rules, it is evident that unless the claim filed by plaintiffs specifies the date of the accident, it was fatally defective.

The only portion of the claim dealing with the date of the alleged accident is paragraph F, which reads as follows: ‘That on or about and during the months of February and March, 1941, the officers and employees of said City of Los Angeles, then and there being conversant with the conditions existing in and along Primera Street in front of claimant's property, instead of remedying same, did then and there and at said time negligently, carelessly and in violation of known engineering rules cause additional obstructions to be placed in the flow of water so that the same was impounded in front of claimant's property with no outlet other than through and under ground upon which claimant's house is located, resulting in a complete undermining and moving of the supports thereunder and a dropping down and falling away of the previous surface of said property, completely ruining and destroying the value of said property and the house and improvements located thereon.’

Under rule 4, supra, it is evident that the foregoing provision of the claim filed by plaintiffs does not specify the day, month or year on which the accident occurred for which plaintiffs seek to recover damages. In fact the claim does not in any place state or attempt to state the date upon which the accident occurred for which plaintiffs seek damages. Paragraph F above quoted merely states that ‘on or about and during the months of February and March, 1941’, defendant did certain acts which subsequently injured plaintiffs' property.

So far as appears from the claim the damage might have occurred in February, March or April since plaintiffs failed to specify in the claim the date upon which the accident occurred and the claim is fatally defective.

Decker v. City of Seattle, 80 Wash. 137, 141 P. 338; Kelso v. Board of Education, 42 Cal.App.2d 415, 109 P.2d 29; Sandstoe v. A., T. & S. F. Ry., 28 Cal.App.2d 215, 82 P.2d 216, are not applicable to the present case in view of the decision of our Supreme Court in Hall v. City of Los Angeles, supra. See dissenting opinion, 19 Cal.2d page 204, 120 P.2d page 16.

Second: Is defendant estopped to deny that plaintiffs did not file a sufficient claim since defendant did not advise plaintiffs of the defect in their claim?

This question must be answered in the negative. There is no duty upon a municipality to notify a claimant of a defect in a claim. The necessary elements of an estoppel are not present in the instant case. Plaintiffs rely on certain cases which are readily distinguishable from the one now before us.

In Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, representations were made by the agents of defendant upon which representations the plaintiffs relied to their detriment. The same situation obtained in Times-Mirror Co. v. Superior Court, 3 Cal.2d 309, 44 P.2d 547. In the present case, no representations were made by defendant which misled plaintiffs.

Third: Did the trial court err in declining plaintiffs' offer of proof?

This question must likewise be answered in the negative. Plaintiffs' offer of proof was immaterial in view of the fact that they had not filed a claim meeting the requirements of Act 5149, supra. Hall v. City of Los Angeles, supra, 19 Cal.2d page 203, 120 P.2d 13.

For the foregoing reasons the order is reversed.

I dissent. In my opinion plaintiffs in filing their claim made substantial compliance with the requirements of the statute. Plaintiffs did not intend to mislead. Defendant was not prejudiced or misled in any manner. In such circumstances substantial compliance is sufficient. Kelso v. Board of Education, 42 Cal.App.2d 415, 109 P.2d 29; Sandstoe v. Atchison, T. & S. F. Ry. Co., 28 Cal.App.2d 215, 82 P.2d 216.

FOOTNOTES

1.  The claim reads thus:‘Claim for Damages.‘Duplicate for City Attorney‘Received May 6 1941Referred to HusarEntered _____‘To the City of Los AngelesClaim No. ___Name of Claimant—Wm. Knight and Mrs. Charlotte KnightAddress of Claimant—4200 Franklin AvenueCity and State—Burbank, CaliforniaPhone Number—GRanite 7695DatesParticularsAmountsAmount of damages caused to this date at 3463 Primera Street, Los Angeles, California, such damages and injury being of a continuous and continuing character. $11,500.00‘This matter arises and grows out of the following matters and things, to wit:‘(a) A failure, neglect, and refusal of the City of Los Angeles, its agents and employees, to properly install, construct, maintain, keep in repair, control and care for sewers, sewage pipes, drains, conduits, devices, ditches, gutters, dams, diverting and flood control works at the front of and adjacent to claimants' property, all of which caused large amounts of flood, surface and storm waters arising in, along and upon Primera Street and adjacent territory, together with mud, silt and debris, to come in and under the property of claimants and damage them in the amount hereinbefore stated, all to the damage of the claimants in the amount hereinbefore set forth.‘(b) The design, preparation and making of the plans and specifications for the work and improvements in, upon, and along Primera Street, and the plans and specifications for the work and improvements aforesaid in, along and upon Primera Street were defective and faulty.‘(c) The location, alignment and methods of maintaining said work and improvements, etc., in, upon and along Primera Street, are dangerous and wrong, all of which caused the lateral support to said property, and its improvements thereon to be removed, causing the undermining of the foundation, floors, underpinnings and joists of the improvements existing on said property, all of which resulted in the settling of, cracking and damaging of the floors and walls of the same.‘(d) The failure to provide properly for the protection of claimant's property and the improvements thereon, caused the undermining, disintegration, slipping, sinking and settling of the land and improvements above described belonging to this claimant; the improvements thereon were damaged, injured and rendered unsafe and unfit for habitation and are now inaccessible, unmarketable and valueless.‘(e) That said existing conditions hereinabove alleged were known to the officers and employees of said City of Los Angeles; that said officers and employees possessed and had authority to remedy said defective and dangerous condition; that despite the fact that for many months last past said officers and employees had knowledge and notice and should have known of the defective and dangerous condition of said street and adjacent territory and despite the fact that said officers and employees had a reasonable time after notice thereof to remedy such defective and dangerous condition, nevertheless said officers and employees, after acquiring such knowledge and notice, failed and neglected for a reasonable time thereafter to remedy such defective and dangerous condition, and failed to take such action as was reasonably necessary to protect the property, together with the improvements thereon of the claimants herein against such damages and defective condition.‘(f) That on or about and during the months of February and March, 1941, the officers and employees of said City of Los Angeles, then and there being conversant with the conditions existing in and along Primera Street in front of claimant's property, instead of remedying same, did then and there and at said time negligently, carelessly and in violation of known engineering rules cause additional obstructions to be placed in the flow of water so that the same was impounded in front of claimant's property with no outlet other than through and under ground upon which claimant's house is located, resulting in a complete undermining and moving of the supports thereunder and a dropping down and falling away of the previous surface of said property, completely ruining and destroying the value of said property and the house and improvements located thereon.‘(g) That the officers and employees of the City of Los Angeles negligently and carelessly permitted conditions to arise and to thereafter continue to exist in, about and upon Primera Street, which resulted in a portion of said Street, adjacent and contiguous to claimant's property, being dislocated and moved to, toward and upon claimant's property, causing claimant's property to be in turn moved, dislocated and disrupted, thereby destroying the bases and foundations of the improvements thereon and causing the whole thereof to drop down and move both longitudinally and laterally.‘State of California‘County of Los Angeles} ss.‘Wm. Knight, being sworn, deposes and says: That he is one of the claimant(s) in the above-entitled claim; that he has read the foregoing claim consisting of three sheets know(s) the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated on information or belief, and as to those matters that he believe(s) it to be true.‘Wm. Knight‘Subscribed and sworn to before me this 1st day of May, 1941.‘(Seal) Duncan G. Cassell‘Notary Public in and for the County of Los Angeles, State of California.‘My Commission expires March 10, 1942‘Claim No. 7348‘Filed May 5–1941‘At 9:30 A. M.‘Walter C. Peterson, City Clerk‘By A. C. Meloy, Deputy.

McCOMB, Justice.

MOORE, P. J., concurs.

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