SHOTLOW v. CITY OF LOS ANGELES

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

Michael Jean SHOTLOW, a minor, by his Guardian Ad Litem, Julia L. Shotlow and Julia L. Shotlow, Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Department of Water and Power of the City of Los Angeles, Department of Recreation and Parks of The City of Los Angeles, Defendants and Respondents.

Civ. 30592.

Decided: January 30, 1968

Alan B. Bodley, Los Angeles, for plaintiffs and appellants. Roger Arnebergh, City Atty., Bourke Jones, John A. Daly, Asst. City Attys., and George J. Franscell, Deputy City Atty., for defendants and respondents.

This appeal presents the narrow question:  Does the minority of the injured person toll the running of the period prescribed in Government Code, section 945.6 as the time within which a suit must be commenced to recover for personal injuries sustained due to the allegedly dangerous condition of property owned and operated by respondent city?   We have concluded that controlling precedents dictate a negative answer to this question.

The facts are not in dispute.   Michael Shotlow was at all times relevant hereto a minor.   On August 17, 1963, he sustained burns and other bodily injury by reason of having mistaken a live high voltage electric wire for a limb in the tree he was climbing in Rancho Cienega Recreation Center.   On October 15, 1963, Michael's mother, as his natural guardian, filed a claim for damages on his behalf with the City of Los Angeles asserting its liability by reason of:  “1) The Dept. of Water & Power (a) maintaining a live high voltage wire in the vicinity of and passing through the foliage of a tree in a public playground and (b) failing to post warning signs to the public of the presence of the wire.   2) The Dept. of Recreation & Parks failing to trim the tree away from the live wire.”   This claim also directed that all communications relating thereto should be addressed to appellants' attorney.

No action having been taken on this claim, it was deemed rejected by operation of law on November 29, 1963.  Govt.Code, § 912.4.)   Unfortunately for appellants, no action was commenced until August 14, 1964, when a complaint was filed on behalf of Michael, through his guardian ad litem, Julia Shotlow, and by Julia Shotlow personally for medical expenses incurred by her for treatment of his injuries.   Such action would have been timely under the provisions of Government Code section 719 1 which were effective and applicable at the time of Michael's accident, but was untimely under section 945.6 which replaced section 719 and took effect September 20,1963.  Section 945.6 provides:

“(a) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b) of this section, any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced within six months after the date the claim is acted upon by the board, or is deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.

“(b) When a person is unable to commence a suit on a cause of action described in subdivision (a) within the time prescribed in that subdivision because he has been sentenced to imprisonment in a state prison, the time limited for the commencement of such suit is extended to six months after the date that the civil right to commence such action is restored to such person, except that the time shall not be extended if the public entity establishes that the plaintiff failed to make a reasonable effort to commence the suit, or to obtain a restoration of his civil right to do so, before the expiration of the time prescribed in subdivision (a).

“(c) A person sentenced to imprisonment in a state prison may not commence a suit on a cause of action described in subdivision (a) unless he presented a claim in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division.”

The parties necessarily agree that the instant action is governed by the terms of the 1963 revision of the law relating to claims and actions against governmental entities.  (Tammen v. County of San Diego, 66 A.C. 480,484, 58 Cal.Rptr. 249, 426 P.2d 753.)   Respondents therefore moved for summary judgment in the trial court on the ground that appellants' action was untimely and barred by the running of the statutory period established by section 945.6.   The motion was granted and the present appeal therefrom was taken.

In urging that the judgment should be reversed, appellants contend that it is the established public policy of this state that “[u]nless specifically excluded by legislative expression * * * Code of Civil Procedure in Section 352.1 2 [shall be] applied to all limitations of actions.”   (Emphasis added.)   However, this contention is completely at variance with the law as established by the majority decision of our Supreme Court in Artukovich v. Astendorf, 21 Cal.2d 329, 333–334, 131 P.2d 831, 834:

“With respect to the ‘public policy of this state,’ we find nothing in the above-mentioned decisions of the District Courts of Appeal which is inconsistent therewith.   It is true that it has always been the policy of this state and of other states to place minors in a favored class for certain purposes.   But as pointed out in Phillips v. Los Angeles County, 140 Cal.App. 78, 79, 35 P.2d 187, 188, ‘The solicitude of the law in protecting a minor in his contractual and other relationships is limited and not general in its application.’   For example, the law does not relieve a minor from liability for his civil wrongs (Civ.Code § 41) nor does it make him immune from punishment for his criminal acts (Pen.Code, § 26).   The fixing of the age of majority is itself a subject which is covered by statute and practically every special consideration which has been extended to those who have not attained such statutory age is likewise covered by statute.   Thus there are statutory provisions extending special consideration to minors with respect to the time within which certain proceedings must be commenced (Code Civ.Proc., §§ 328, 352, 1272;  Prob.Code, §§ 384, 931), but the special consideration extended is expressly limited to the proceedings therein mentioned.   We find no similar provisions extending special consideration to minors in statutes prescribing the time within which claims must be filed or the time within which proceedings must be commenced upon rejected claims either in probate proceedings (Prob.Code, §§ 700, 714, 716) or in liquidation proceedings (Deering's Gen.Laws, Act 652, § 136;  Deering's Gen.Laws, Act 986, § 13.16;  Ins.Code, §§ 1021–1032);  and it was held in Carpenter v. Eureka Cas. Co., 14 Cal.App.2d 533, 58 P.2d 682, that where such statutes make no exception in favor of minors, none may be implied.   There are other statutes which might be mentioned but sufficient has been said to show that the Legislature has apparently balanced the questions of public policy involved in each instance and has determined whether the policy of extending special consideration to minors outweighed some other policy.   If it did so believe, an exception was written into the statute in favor of minors, but if it did not so believe, no such exception was so written into the statute.”  (Emphasis added.)

 We, therefore, must reject appellants' contentions in this respect for the reasons indicated by the following apposite observation of the court in Wall v. Sonora Union High Sch. Dist., 240 Cal.App.2d 870, 872, 50 Cal.Rptr. 178, 179:  “The appellant urges this court to adopt the reasoning contained in the dissenting opinion in that case [Artukobich v. Astendorf, supra ];  however, it is established that a holding of the Supreme Court binds all of the lower courts in the state, including an intermediate appellate court.”

It is true, of course, that the court in Artukovich was required to decide only the question whether or not minority tolled the statutory period for the filing of claims and therefore was not required to express itself, as it did, on the application of limiting statutes generally.   Consequently, appellants urge that we should apply the reasoning expressed in the earlier decision in Hennessy v. San Bernardino County, 47 Cal.App.2d 183, 185–186, 117 P.2d 745, wherein it was held that once the minor had complied with the then applicable claims statute, his minority tolled the statutory period within which he thereafter was required to file his action.

However, the holding in Hennessy is not truly inconsistent with the Supreme Court's later ruling in Artukovich because the statute of limitations there under consideration was former Code of Civil Procedure, section 342, which clearly fell within the tolling provisions of Code of Civil Procedure section 352, for the reason that it was “an action, mentioned in Chapter 3 of this Title.”   The same cannot be said of Government Code section 945.6 which forms an integral part of the new legislative rules established in 1963.   Government Code, section815 expressly provides:  “Except as otherwise provided by statute:  (a) A public entity is not liable for an injury, whether such injury arises out of an art or omission of the public entity or a public employee or any other person.  * * * ” The Legislative Committee Comment thereto indicates, in relevant part:

“This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation.   In the absence of a constitutional requirement, public entities may be held liable only if statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable.   Because of the limitations contained in Section 814, which declares that this part does not affect liability arising out of contract or the right to obtain specific relief against public entities and employees, the practical effect of this section is to eliminate any common law arising out of torts.   The use of the word ‘tort’ has been avoided, however, to prevent the imposition of liability by the courts in reclassifying the act causing the injury.  * * *

“In the following portions of this division, there are many sections providing for the liability of governmental entities under specified conditions.   In other codes there are a few provisions providing for the liability of governmental entities, e.g., Vehicle Code Section 17001 et seq. and Penal Code Section 4900.   But there is no liability in the absence of a statute declaring such liability.  * * * ” (Emphasis added.)

In addition, the Law Revision Commission Comment on section 945.6 itself states:  “This section requires that an action must be commenced within six months after the claim is acted upon or is deemed to be rejected.   The normal statute of limitations will not apply.”  (Emphasis added.)

 It being clear that since the enactment of the 1963 legislation on the subject, actions against governmental agencies are entirely separate and distinct from those “mentioned in Chapter 3 of [Title 2 of the Code of Civil Procedure]” (Code Civ.Proc. § 352), it follows that so long as Artukovich v. Astendorf, supra, 21 Cal.2d 329, 334, 131 P.2d 831, remains the law in this state, minority will not toll the period prescribed by Government Code, section 945.6 for commencing such actions.   That is to say, we must presume “that the Legislature has * * * balanced the questions of public policy involved in each instance and has determined whether the policy of extending special consideration to minors outweighed some other policy,” and where the statute under consideration makes “no exception in favor of minors, none may be implied.”  (Artukovich v. Astendorf, supra, p. 334, 131 P.2d p. 834).3  Of course, it is a general rule of statutory construction that a legislative enactment that follows a judicial expression on the subject will be regarded as an adoption, acquiescence, or ratification of that expression unless a contrary intent clearly appears.  (45 Cal.Jur.2d, Statutes, § 124, p. 633.)

This view also finds support in California Government Tort Liability, Continuing Education of the Bar, 1964, pages 416–417, where Professor Arvo Van Alstyne, who served as consultant to the California Law Revision Commission during its two-year study, writes:  “The 1963 act makes one express exception to the limitations period.   When the claimant ‘is unable to commence a suit’ on the rejected claim within the six-month period ‘because he has been sentenced to imprisonment in a state prison,’ action must be commenced within six months after his civil right to sue has been restored.   Govt. C § 945.6(b).

“In light of this one exception, it appears by implication that the other bases for tolling the six-month limitations period (see, e.g., CCP § 32(1)—minority;  * * *) were intended to be inapplicable.   The legislative intent that the ‘general statutes of limitations' would have no application was, in fact, explicit.   See Part V, Note 2, § 945.6.   For some general tolling provisions, such as death or absence from the state, factual circumstances would never occur in actions against public entities;  while for other grounds, such as minority or incompetency, a suit through a guardian ad litem is available.   Accordingly, strict adherence to the six-month period will probably be required by the courts, except as specifically provided for persons who have lost their civil rights.”

Appellants' final argument is based upon the fact that the Legislature liberalized the application of the claim statutes to minors to provide that acceptance of a minor's late claim is mandatory if application therefor is made to the public entity within one year (cf. Govt.Code, § 911.4(b) and § 911.6(b)(2)), and, further, that if permission to file the late claim should be denied by the public entity, relief from filing any claim shall be granted upon judicial application therefor made within the six months' period following such denial.  (Govt.Code, § 946.6;  Tammen v. County of San Diego, supra, 66 A.C. 480, 485, 58 Cal.Rptr. 249, 426 P.2d 753.)

Appellants contend that it is unreasonable to believe that the Legislature intended to give a minor one year in which to give even notice to the public entity of the existence of a potential cause of action against it and yet to require that action be brought thereon within only six months when notice was timely given within the 100–day period prescribed.   We cannot accept this contention.

Until some adult undertakes to act on a minor's behalf, he is ordinarily without the ability to protect his rights personally.   Nevertheless, his rights will still be lost if such initial action is not taken within the more liberal period presently established by the claims statute.  (Wall v. Sonora Union High Sch. Dist., supra, 240 Cal.App.2d 870, 872–874, 50 Cal.Rptr. 178.)   However, once some adult has undertaken to act on the minor's behalf either by filing a timely claim or a belated claim within the period permitted therefor, his position thereafter is realistically no different from that of any adult who must rely on his counsel to prosecute his cause of action in accordance with the applicable statute of limitations.  (Cf. Tubbs v. Southern Cal. Rapid Transit Dist., 67 A.C. 683, 687–688, 690–691, 63 Cal.Rptr. 377, 433 P.2d 169.)   Thus, in the instant action wherein the minor's claim indicates that he and his mother, his natural guardian, were both represented by counsel at that time, the failure of such counsel to file a complaint on their respective causes of action effected as great a hardship to the adult as to the minor and each of them was equally unable realistically to avoid such misfortune.

 In this regard it may also be noted that although section 946.6 of the Government Code which permits a minor to obtain a judicial order relieving him from the provisions of section 945.4 when a late claim has been presented on his behalf within the one-year period provided therefor, nevertheless such relief may be granted when a petition therefor is filed within six months after the public entity has improperly refused to accept his late claim.   Thus, the Law Revision Commission Comment to section 946.6 states:  “The petition may be filed within six months after the application for leave to present a late claim is denied or deemed to be denied, the same period of time specified in Section 945.6 for commencing legal action on a claim that has been denied or deemed denied on the merits.”   (Emphasis added.)   In essence, then, the statutory period for commencing judicial action is the same once an adult has undertaken to act on behalf of a minor regardless of whether such representation was commenced by the filing of a timely or a tardy claim.

Therefore, the anomaly created by the statutory provisions regulating the filing of claims and the commencement of actions by a minor is more apparent then real.   It would be far more anamolous to hold that the Legislature intended that the minor who had no one to guard his rights should suffer their complete loss after one year, whereas the minor favored with legal assistance, as evidenced by the timely claim filed on his behalf, might thereafter subject the public entity to an uncertain and inchoate liability for a period of potentially two decades' duration before commencing action thereon.

The judgment is affirmed.

FOOTNOTES

1.   Section 719 of the Government Code provided as follows:“Except where a different statute of limitations is specifically applicable to a local public entity, any suit brought against a local public entity on a cause of action for which this chapter requires a claim to be presented must be commenced within the period of time prescribed by the statute of limitations which would be applicable thereto if the suit were being brought against a private party.”

2.   Subdivision 1 of section 352 of the Code of Civil Procedure provides as follows:  “If a person entitled to bring an action, mentioned in Chapter 3 of this Title, be, at the time the cause of action accrued, * * * 1.   Under the age of majority;  * * * the time of such disability is not a part of the time limited for the commencement of the action.”  (Emphasis added.)

3.   Cf. State Farm etc. Ins. Co. v. Superior Court, 232 Cal.App.2d 808, 43 Cal.Rptr. 209;  Pacific Indem. Co. v. Superior Court, 246 Cal.App.2d 63, 54 Cal.Rptr. 470 (hearing denied), and Republic Indem. Co. of America v. Barn Furniture Mart, Inc., 248 A.C.A. 647, 56 Cal.Rptr. 609, wherein the holding of Artukovich has been applied to require compliance by minors with subdivision (h) of Insurance Code section 11580.2.

HERNDON, Associate Justice.

ROTH, P.J., and FLEMING, J., concur.