ANSELL v. CITY OF SAN DIEGO

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District Court of Appeal, Fourth District, California.

ANSELL v. CITY OF SAN DIEGO.

Civ. 3969.

Decided: September 22, 1949

J. A. Donnelley, Richard P. MacNulty, San Diego, for appellant. McInnis & Hamilton, Jean F. DuPaul, City Attorney, San Diego, for respondent.

Plaintiff filed a complaint for damages against defendant City of San Diego because of a collision which occurred on March 27, 1945, between an automobile driven by plaintiff and a rubbish truck owned by defendant. After plaintiff's evidence was in, counsel for defendant moved for judgment of dismissal on the ground that the claim, as filed, was insufficient in law, and that plaintiff had not filed a claim with the City Clerk of defendant City, as provided by section 1981 of the Government Code. The trial court granted the motion and a judgment of dismissal was entered. This appeal is from that judgment. By stipulation, that portion of the reporter's transcript relating solely to the matter of the filing of plaintiff's claim with the defendant city was prepared. The claim received in evidence and upon which plaintiff's cause of action was predicated reads in part as follows:

‘To: The City of San Diego

Civic Center

San Diego, California

Claim of H. G. Ansell, 4409 Forty-fourth

St., San Diego 5, Calif.

‘Claim for loss of income,’ etc. .....

‘Total claim $8,152.00

Dated at San Diego, California, June 15, 1945.

(Signed) H. G. Ansell

H. G. ANSELL (Claimant)

(Seal)

‘Subscribed and sworn to before me this 18th day of June, 1945.

John P. Morris

My commission expires Jan. 18, 1949.'

Defendant's answer to the second amended complaint denies that plaintiff presented in writing or filed with the clerk of the City a verified claim for damages. It is defendant's position, and it is the sole issue involved, that the purported claim, as filed, completely fails to meet the statutory requirements in that it was not verified and further that it was not presented and filed with the City Clerk.

The evidence is without conflict that on June 15, 1945, plaintiff presented to and filed with the City Auditor-Comptroller the written claim above set out. The evidence shows that on that same day, on a mimeographed form used for such purpose, the City Auditor referred the claim to the City Attorney and sent him the original claim with the letter of transmittal. A copy of the letter of transmittal was forwarded by the Auditor to the City Clerk. In due course of time the City Attorney returned the claim to the City Auditor, together with a written opinion recommending its denial. Thereafter, the City Auditor wrote a letter addressed to the Mayor and City Council, enclosing a copy of the City Attorney's opinion recommending denial of the claim, which letter was, on March 27th, filed with the City Clerk. A copy of that letter was also sent to the City Attorney and City Manager. The City Clerk placed the City Auditor's letter in reference to the City Attorney's opinion recommending denial of the claim, on the docket for action by the City Council. The claim was denied by it on April 2, 1946.

Section 1981 of the Government Code provides that ‘* * * a verified claim * * * shall be presented in writing and filed with * * * the clerk or secretary of the legislative body of the * * * municipality, as the case may be. * * *’ Plaintiff claims that although the claim was filed with the City Auditor-Comptroller, under the evidence produced there was a ‘substantial compliance’ with that section, and that the notarization indicated was a sufficient verification.

It should be here noted that the claim filed with the City Auditor-Comptroller was never forwarded to the City Clerk, presented to, nor filed with him. Only letters in reference thereto reached his office. The act itself specifically requires that the claim be presented to the secretary of the legislative body. It needs no citation of authority to believe that the City Clerk is the secretary of that legislative body and not the Auditor-Comptroller. The act itself shows that no other officer is authorized to receive the claim for filing or for the purpose of presenting it to the legislative body. This is brought out in Johnson v. City of Glendale, 12 Cal.App.2d 389, 395, 55 P.2d 580, 582, where it is said:

‘The 1931 act requires presentation of a verified claim to the clerk of secretary of the legislative body of the municipality or other governing board within ninety days after the accident has occurred. It states no exceptions, and we are unable to believe that any were intended. If there were to be exceptions, they should have been stated in the act itself. It is not for the courts to create them.’

In Wilkes v. City and County of San Francisco, 44 Cal.App.2d 393, 112 P.2d 759, 761 (Hearing denied by the Supreme Court), plaintiff sought damages against the City for alleged negligence. She filed her verified claim, as here, with the comptroller of the City and County, and did not file it with the Clerk of the legislative body. In that case the City Charter required that all claims for damages be presented to the comptroller. The court there held that the filing of the claim with the comptroller was not complying with the public liability statutes of the State which control in these types of cases and that in order for plaintiff to prevail she must, as a prerequisite, have filed her claim with the Clerk of the legislative body. The Court then said:

‘The matter of where the claim was filed may be intimately connected with the fiscal system of a municipality in preparing budgetary matters as part of its internal business; but one of the underlying purposes in designating a department wherein to file such a claim is that it may be paid, if found just, without litigation.’

Johnson v. City of Glendale, supra, and Douglass v. City of Los Angeles, 5 Cal.2d 123, 53 P.2d 353, are cited as authority for the holding. In the latter case it was held that the filing of the claim with the Board of Public Works did not satisfy the statute and that the claim should have been presented to and filed with the Secretary of the City Council. The court there held that the provisions of the Liability Act, Stats.1931, pp. 2475–2477, are mandatory and the City cannot waive the requirement as a prerequisite to suit, and that the filing of an unverified claim is ineffectual. Recent decisions have relaxed the previous rules to some extent in reference to ‘substantial compliance’, as where the sufficiency of the specification of time is concerned, involving a continuing water damage as in Knight v. City of Los Angeles, 26 Cal.2d 764, 160 P.2d 779. However, it has been uniformly held and is pointed out in that case that ‘substantial compliance’ cannot be based upon the entire absence of one factor, that is, that no claim was filed, or not filed in time, or with the wrong official, or was not verified, citing cases. See, also, Eppstein v. City of Berkeley, 52 Cal.App.2d 395, 126 P.2d 365; Kline v. San Francisco Unified School Dist., 40 Cal.App.2d 174, 104 P.2d 661, 105 P.2d 362 and Ghiozzi v. City of South San Francisco, 72 Cal.App.2d 472, 164 P.2d 902. In the last-cited case it is said, quoting from Powers Farms, Inc., v. Consolidated Irr. Dist., 19 Cal.2d 123, 119 P.2d 717, that ‘written notice to or actual knowledge on the part of public officers does not constitute a substantial compliance with or satisfaction of a statutory requirement for a verified claim, or give rise to an estoppel to assert the defense. The long-established rule in this state is that the courts may allow no exceptions to the plain provisions of a claim statute under the guise of interpretation or construction. Compliance with the statute is mandatory and the requirement may not be waived.’ [72 Cal.App.2d 472, 164 P.2d 905.]

Counsel for plaintiff cites many cases bearing on the question of ‘substantial compliance’, and makes a good argument as to why equitable principles should apply, citing the dissenting opinion in Hall v. City of Los Angeles, 19 Cal.2d 198, 120 P.2d 13. However, we find no case which directly holds that filing the claim with the Auditor-Comptroller or any such officer other than the Secretary of the legislative body, is a substantial compliance with the provisions of section 1981 of the Government Code. The precedent established by the cases above mentioned precludes a reversal of the judgment.

Since the disposition of this question sustains the judgment, the second question as to whether the acknowledgment of the claim, as indicated, constitutes a verification, is academic. It therefore becomes unnecessary to decide it. Imperial Land Co. v. Imperial Irrigation District, 173 Cal. 668, 161 P. 116; 2 Cal.Jur. p. 123, sec. 12.

Judgment affirmed.

GRIFFIN, Acting Presiding Justice.

MUSSELL, J., concurs.