POTTER v. STATE

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Court of Appeal, Third District, California.

Bernice POTTER and Samuel G. Potter, Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents.

Civ. 12121.

Decided: February 24, 1970

Ross L. Bigler, Yreka, for plaintiffs-appellants. Robert E. Friedrich, San Francisco, for defendants-respondents.

Plaintiffs appeal from judgment of dismissal of action against defendant State of California based on Order Sustaining Demurrer to Complaint and Supplement to Complaint without leave to amend.

This is a companion case to Mildred Savage and Roscoe B. Savage, Plaintiffs and Appellants, v. State of California et al., Defendants and Respondents, (—- Cal.App.3d —-), 84 Cal.Rptr. 650, this day decided by this court.

The facts of this case are similar to those in Savage, supra. Plaintiffs failed to file a claim for damages with the State Board of Control prior to suit as required by sections 911.2 and 945.4 of the Government Code. Plaintiffs' application to the Board of Control for leave to present a late claim was denied. As plaintiffs did in Savage, supra, plaintiffs on November 2, 1967 filed complaint for damages against defendant State of California, et al., and thereafter, pursuant to section 946.6 of the Code of Civil Procedure, obtained from the Superior Court an order granting them relief from the claim-presentment requirements of section 945.4 of the Code of Civil Procedure. Plaintiffs filed a supplement to the complaint setting up this fact.

The trial court sustained defendant State of California's Demurrer to the Complaint and Supplement to Complaint on the ground of failure of plaintiffs' complaint to allege the filing of a claim with the State Board of Control and entered judgment accordingly.

On the authority of Savage v. State of California, supra, the order sustaining demurrer without leave to amend and the judgment of dismissal are reversed.

BRAY, Associate Justice Assigned.

PIERCE P.J., and REGAN, J., concur.