PHILLIPS v. CITY OF PASADENA

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

PHILLIPS v. CITY OF PASADENA.

Civ. 14566.

Decided: January 10, 1945

Roland Maxwell, of Pasadena, for appellant. Harold P. Huls, City Atty., and H. Burton Noble, Asst. City Atty., both of Pasadena, for respondent.

Plaintiff commenced this action to recover damages which he claims to have suffered because of the closing of a road by which patrons reached his resort. He has appealed from a judgment which was entered following the sustaining without leave to amend of the demurrer to his third amended complaint.

According to the allegations of the complaint plaintiff had for more than thirty years owned and operated a resort in the Arroyo Seco Canyon known as Camp Oak Wild, located some distance up the canyon from the city limits of Pasadena. Plaintiff is the owner of the buildings which had been erected on the land in the Los Angeles National Forest leased from the government. The only safe approach to plaintiff's resort by prospective customers is by a road lying partly within the limits of defendant city. At the time of the establishment of plaintiff's resort this road was maintained by the city ‘over the territory where it traversed that city’ and was a public road continually used by plaintiff and his patrons except for brief periods when it was obstructed by heavy rain falls. In March, 1938, defendant closed the road ‘through the erection of a locked gate’ near the intersection of Ventura and Windsor streets in Pasadena. Thereafter plaintiff demanded of defendant that the road be reopened and defendant complied by reopening the road. In March, 1941, the road ‘was again closed by means of said locked gate’ and since that date ‘defendant has refused to maintain said road within the limits of the city of Pasadena in a safe and traversable condition.’

It is further alleged in the complaint that as a direct result of the unlawful obstruction of the road by the erection of the locked gate and its maintenance by defendant ‘during the period of six months prior to January 16, 1942,’ plaintiff has been damaged through the loss of patronage of the resort in the sum of $16,000; that the value of the improvements erected by plaintiff has been destroyed to his further damage in the sum of $25,000; that the value of plaintiff's resort business and the good will of the business has been permanently destroyed to plaintiff's further damage in the sum of $10,000. Plaintiff prays for a judgment in the total sum of $51,000 for damages which he claims to have suffered.

Attached to plaintiff's complaint is a copy of the claim which was filed by plaintiff with the officials of the city of Pasadena on January 17, 1942. This claim is for the total sum of $51,000 which is made up of the three sums mentioned in the complaint.

Plaintiff further alleges that because of the fact that after previously closing the road defendant had reopened it, and because of the fact that the barrier erected was a locked gate rather than an obstruction necessarily permanent in character, plaintiff did not become aware of defendant's intention to permanently obstruct the road ‘by the maintenance of a nuisance in the form of said locked gate until after July 16, 1941.’

Plaintiff's action must fail because he did not comply with the requirements of section 12 of Article II of the Charter of the City of Pasadena, which provides in part as follows: ‘No suit shall be brought upon any claim for money or damages, whether founded on tort or contract, against the City of Pasadena or any department thereof until a demand for the same has been presented as provided herein or in any ordinance herein authorized and rejected in whole or in part. Except in those cases where a shorter period of time is otherwise specified by law, all claims for damages against the city, or any department thereof, must be presented within six months after the occurrence, event or transaction upon which any such claim is founded.’

It is to be noted that the charter provision requires that claims must be filed with the city authorities within six months after ‘the occurrence, event or transaction’ upon which the claim is founded. It is alleged by plaintiff that the road was obstructed by the erection of the locked gate in March, 1941. But the claim was not filed until January 17, 1942, more than nine months after the occurrence of which plaintiff complains. Plaintiff attempts to avoid the result of his failure to file the claim within six months by alleging that he did not know that defendant's obstruction of the road was permanent until July 16, 1941, and he follows this allegation with the allegation that he was damaged during the period of six months prior to January 16, 1942. In doing so he presents a variance between his claim filed with the city authorities and the claim on which he bases his prayer for a judgment in the court, for in the claim filed with the city he alleges damages occurring since March, 1941, to be $51,000 and in the present action he alleges that he has suffered damages in the sum of $51,000 for the period of six months immediately prior to the filing of the claim.

Plaintiff's complaint is founded upon the action of defendant in closing the road by the erection and locking of the gate. This unquestionably is the occurrence or event which is involved in the litigation, the date of which was in March of 1941. The charter requires that the claim be filed within six months from that occurrence and not within six months from the time that plaintiff became aware of the occurrence. The purpose of the charter requirement would be defeated if claimants were permitted to base their rights to sue upon an assertion that they did not know of the happening of the event which forms the basis of their claims. It has been held that the principal purpose of the requirement that claims be filed is to provide the city with full information concerning rights asserted against them so that it may settle meritorious claims without litigation. Natural Soda Prod. Co. v. City of Los Angeles, 23 Cal.2d 193, 203, 143 P.2d 12. Nor can plaintiff avoid the effect of his failure to file a claim within six months by waiving any damages which he suffered during a period longer than six months before the claim was actually filed. The purpose of the charter provision may not be frustrated by this simple expedient.

Plaintiff contends that defendant was guilty of maintaining a continuing nuisance and that for this reason he is entitled to recover for damages suffered during the last six months before the claim was filed. There is much discussion in the briefs in which it is claimed by defendant city that there was in fact no nuisance and that defendant acted properly in closing the gate in the exercise of its police power. We need not discuss defendant's contentions in this regard other than as they may be applicable to the question whether the action falls because of the failure to file the claim within the time required by the charter. This is not an action to abate a nuisance and the rules governing an action of that kind are not applicable here. The action is based upon a claim for damages and plaintiff must comply with the charter requirements for that kind of an action. Plaintiff refers to the case of Natural Soda Prod. Co. supra, where the defendant had opened the gates of its dam intermittently from February 6 to June 30. The water issuing therefrom reached its peak in May and did not entirely disappear until sometime in September. The lake was partially inundated on September 6 and some of the damage was to occur after that date. The claim was filed on December 30, within six months from the time the defendant last opened the gates of its dam. It it be argued that there is a similar sequence of events in the present case the argument must be founded upon the fact that the gate was locked in March, 1938, and again was locked and for the last time in March, 1941. Clearly, under the theory of a sequence of events, the time within which plaintiff could file his claim expired six months from the time the gate was last locked by defendant.

The judgment is affirmed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.

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