HOLM v. CITY OF SAN DIEGO

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District Court of Appeal, Fourth District, California.

HOLM et al. v. CITY OF SAN DIEGO et al.

Civ. 3935.

Decided: July 29, 1949

Sweet, Ault & Warner, San Diego, and C. Rupert Linley, El Cajon, for appellants. McInnis & Hamilton and Jean Du Paul, City Attorney, San Diego, for respondents.

This is an appeal from a judgment of dismissal in favor of the defendants. The action was brought by Orlando E. Holm and Myrle E. Holm, husband and wife, and Yvonne, their minor daughter, and is for damages for personal injuries and other consequential damage alleged to have been sustained by the three plaintiffs in an accident between an automobile driven by Orlando E. Holm and a truck owned by the defendant City of San Diego and under the control of the defendant Ben D. Romero. The complaint alleged negligent operation of the truck by the city employee. The answer sets up the usual affirmative defenses, denies the alleged negligence, admits the ownership of the truck, the employment of defendant Romero by the city and that he was acting within the scope of his employment.

In the second day of the trial plaintiffs offered in evidence a verified claim which had been served upon the defendants. Defendants thereupon objected to the further introduction of evidence upon the part of plaintiffs and moved the court for a judgment of dismissal on the grounds that the verified claim, as admitted in evidence, was insufficient in law, in that it did not state the addresses of the claimants in accordance with section 1982 of the Government Code. The motion was granted and the court rendered judgment of dismissal in favor of the defendants. Plaintiffs appeal from this judgment.

The sole question to be decided is whether the verified claim filed by plaintiffs contained a sufficient, or any statement of their addresses as required by section 1982, which provides that ‘the claim shall specify the name and address of the claimant, the date and place of the accident and the extent of the injuries of damages received.’

The verified claim contains eleven paragraphs and the following matters are therein set forth: The names and relationships of the claimants; the date and place of the accident; the ownership of the vehicles involved and by whom operated; allegations of negligence and the extent of the injuries to plaintiff Orlando E. Holm, to his wife and to his daughter. It is alleged that Myrle E. Holm has been confined to a hospital at all times since the date of the said collision; that she is informed and believes that she will suffer future hospital treatment for a period of three months from that date. The amounts claimed as damages are set forth, and in this connection it is alleged in paragraph eight of the claim ‘that by reason of said injuries Orlando E. Holm has incurred expenses for medical, surgical and hospital treatment, including X-rays, medicines and supplies, for himself, his wife and daughter, in the sum of $2166.84, and is informed and believes that future medical, surgical and hospital treatment of Myrle E. Holm will be in the sum of $1470.00; that by reason of said injuries, Orlando E. Holm has suffered loss of earnings in the sum of $933.33, and is informed and believes that he will lose another $400.00 in the next thirty days; that he is informed and believes that he will necessarily incur future bills for household help and nursing services for his wife by reason of her injuries, for a period of one year, in the sum of $1800.00, which includes the expense of numerous trips to San Diego from Lakeside for various therapy treatments; and that by reason of his own injuries he has suffered general damages in the sum of $1000.00. (Emphasis added.)’

The claim contains the statement that it was signed at Lakeside or La Mesa, California, on February 22, 1947, and the verification was by a notary public in San Diego County.

No address is stated of any of the claimants or of the person by whom the claim was prepared or of the notary public before whom it was subscribed. Plaintiffs' sole contention is that the italicized words in paragraph 8 of the claim constitute a substantial and sufficient compliance with the requirement of the statute that the address of the claimant be stated. It is argued that the statement made upon information and belief that plaintiff Orlando E. Holm would at some future date be required to expend money for trips from Lakeside to San Diego for various therapy treatments for his wife means that the claimants herein resided in Lakeside. This contention is without merit. We do not think that an address is sufficiently stated, especially when we consider other parts of the claim, in one of which it is stated that the claim is subscribed in Lakeside or La Mesa, and in another, ‘that said Myrle E. Holm has been confined to a hospital at all times since the date of said collision, and is informed and believes that she will suffer future hospital treatments for a period of three months after this date.’ The name or place where the hospital is located is not stated and there is no information whatever as to the address of plaintiff Orlando E. Holm or his minor daughter Yvonne.

In Spencer v. City of Calipatria, 9 Cal.App.2d 267, 269, 49 P.2d 320, this court held that the provisions of the statutes relative to the filing of claims such as is here involved are mandatory, and that the filing of an unverified claim was not a substantial compliance with the statute. This holding is approved in Douglass v. City of Los Angeles, 5 Cal.2d 123, 128, 53 P.2d 353.

In Eppstein v. City of Berkeley, 52 Cal.App.2d 395, 126 P.2d 365, the plaintiff sued to recover damages for injuries sustained when she tripped and fell on an alleged defective sidewalk. She alleged the place of the accident, the injuries, and negligence, but in the claim presented to the city, she failed to state her address. In her complaint it was alleged that she orally informed defendant city of the circumstances and her name and address; that it was well known to defendant city and that the defendant suffered no prejudice by reason of the omission of the address in the claim. The contention was made, as in the instant case, that the claim was insufficient and the court so held. The failure to state the place of the accident in such a claim is as serious a defect as a failure to verify it, Hall v. City of Los Angeles, 19 Cal.2d 198, 202, 120 P.2d 13, and as was said in the Eppstein case, supra, 52 Cal.App. at page 397, 126 P.2d at page 366: ‘In principle there is no difference between failing to allege the place where the accident occurred and failing to allege the address of the claimant.’

The rule is that substantial compliance with statutory claim provisions is all that is required and one of the purposes of the claim statute is to provide the city with information in order that it may settle claims of merit without litigation. Knight v. City of Los Angeles, 26 Cal.2d 764, 766, 767, 160 P.2d 779. In the instant case, we conclude that there was an entire failure of plaintiffs to comply with one of the mandates of the statute and, as was said in Hall v. City of Los Angeles, supra, 19 Cal.2d at page 202, 120 P.2d at page 15: ‘Substantial compliance cannot be predicated upon no compliance.’ A contrary holding would permit a claimant to bring suit against a city on the basis of a claim lacking one of the essential requirements. The city cannot waive compliance with the statute and knowledge of the city officials of the facts required to be stated in the claim does not dispense with the necessity of filing a proper claim. Kline v. San Francisco Unified School Dist., 40 Cal.App.2d 174, 104 P.2d 661, 105 P.2d 362.

We are not unmindful of the holding in the case of Ridge v. Boulder Creek etc. School Dist., 60 Cal.App.2d 453, 140 P.2d 990, 992, where the claim against a school district, filed by a father for injuries to his minor son, recited that they were ‘citizens and residents of the County of Santa Cruz, State of California, and the said R. C. Ridge is the father of the said Walter Ridge, a minor, who is a student at said Boulder Creek Union High School.’ In that case it was held that the giving of the pupil's address within the verified portion of the claim constituted substantial compliance with the statute, as a letter addressed to the pupil at school would reach him, and he could be found at school the major portion of the daylight hours. In Uttley v. City of Santa Ana, 136 Cal.App. 23, at page 25, 28 P.2d 377, at page 379, where the claim filed set forth the claimant's name and all the other statutory requirements, except that it did not give the claimant's address, but did set forth the name and office address of the attorney, the court held that the claim was sufficient, stating: ‘The purpose of the statute would seem to be accomplished if an address is given at which or through which the claimant may be found, in order that the city officials may make such investigation of the merits of the claim as may be desired.’ To the same effect is the decision in Stewart v. City of Rio Vista, 72 Cal.App.2d 279, 164 P.2d 274, 275, where the claim conformed to the requirements of the statute except that it failed to specify the address of the claimant in the body thereof. The claim was signed by Elizabeth Stewart, Ray E. Stewart, and by Sinclair M. Dobbins, their attorney. It was verified by the attorney and the verification contained this language: ‘That he is an attorney at law * * * and has his office in Vacaville, Solano County, California, and is the Attorney for the Claimant.’ The court held that the claim was not fatally defective and that the office of the attorney could be readily located. These cases are distinguishable from the instant case in that, in them, some compliance with the statute is shown, but here, as in Eppstein v. City of Berkeley, supra, the claim contains no specification of address.

We conclude there was an entire failure on the part of plaintiffs to comply with one of the mandates of the statute and that under such circumstances the principle of substantial compliance is inapplicable. Hall v. City of Los Angeles, supra; Stewart v. City of Rio Vista, supra, 72 Cal.App.2d at page 282, 164 P.2d 274.

Judgment affirmed.

MUSSELL, Justice.

BARNARD, P. J., concurs.