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Court of Appeal, First District, Division 3, California.

Alex LEWIS and Margaret Whitlock, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al., Defendants and Respondents.

Civ. 27528.

Decided: November 18, 1971

Redland, Elder & Pinney, Dorsey Redland, Van H. Pinney, San Francisco, for plaintiffs and appellants. Thomas M. O'Connor, City Atty. of the City and County of San Francisco, Edmund A. Bacigalupi, Deputy City Atty., San Francisco, for defendants and respondents.

Plaintiffs, the surviving husband and daughter of Ethelena Lewis, seek damages for her wrongful death. Mrs. Lewis was injured in a municipal bus accident July 29, 1965. The complaint alleges that ‘within the time * * * prescribed by law,’ i.e., within 100 days of the injury (Gov.Code, ss 905, 911.2), Mrs. Lewis filed with defendant city and county her claim for damages for her injuries. She died, allegedly as the result of those injuries, on May 9, 1968, some 33 months after her injury. No claim for damages for wrongful death was filed with the city and county, and it demurred to the complaint, which was filed May 8, 1969, upon this ground. The demurrer was sustained with leave to amend. No amendment was filed, and the action was dismissed as to the city. Plaintiffs appeal.

Appellants' principal argument is that the claims statute unconstitutionally denies equal protection of the law in that it requires a claim against a public body, but not against a private corporation or an individual. The contention is without merit (Dias v. Eden Township Hospital Dist., 57 Cal.2d 502, 504, 20 Cal.Rptr. 630, 370 P.2d 334).

Appellants also argue that Mrs. Lewis' filing or her claim for damages for personal injuries put the city fully upon notice, and permitted prompt investigation. Thus, it is argued, the claims requirement was substantially met. But the rule of substantial compliance has been applied only when some claim, even though technically defective, is filed (McGranahan v. Rio Vista etc. Sch. Dist., 224 Cal.App.2d 624, 629, 36 Cal.Rptr. 798).

The filing of a wrongful death claim by one heir for herself alone, even though it similarly gives the public body full opportunity to investigate, does not excuse absence of a claim by another heir (Petersen v. City of Vallejo, 259 Cal.App.2d 757, 766—767, 66 Cal.Rptr. 776). Mere knowledge by the public body of the accident and of the proposed claim is not sufficient (Redwood v. State of California, 177 Cal.App.2d 501, 504, 2 Cal.Rptr. 174 and cases there cited).

An action for wrongful death is wholly distinct from an action by the decedent, in his lifetime, for the injuries which ultimately cause his death (Marks v. Reissinger, 35 Cal.App. 44, 50—55, 169 P. 243). An important right of one class of plaintiffs has been built upon this distinction in the area of governmental immunity (Garcia v. State of California, 247 Cal.App.2d 814, 56 Cal.Rptr. 80 (hearing den.)).

Although the above rebuttal arguments were advanced in respondents' brief, no reply to them is attempted in appellants' closing brief. We do not base our decision upon abandonment of the issue. Rather, we conclude that, under the authorities, Mrs. Lewis' claim for damages for personal injuries cannot be deemed substantial compliance by her heirs with the claims statute, so as to support this wrongful death action by them.

Judgment affirmed.

DRAPER, Presiding Justice.

HAROLD C. BROWN and CALDECOTT, JJ., concur. Hearing denied; PETERS and MOSK, JJ., dissenting.

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