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

Arnold ADDISON et al., etc., Plaintiffs and Appellants, vs. STATE of California, DEPARTMENT OF MOTOR VEHICLES and County of Santa Clara, Dennis Lempert, Deputy District Attorney and Louis Bergna, District Attorney, Defendants and Respondents.

Civ. 40570.

Decided: November 16, 1977

E. Day Carman, Carman & Mansfield, Corona del Mar, for plaintiffs and appellants. Hoge, Fenton, Jones & Appel, Inc. by Charles H. Brock, San Jose, for defendant and respondent County of Santa Clara. Evelle J. Younger, Atty. Gen. of the State of California, Robert L. Bergman, Asst. Atty. Gen., Leonard M. Sperry, Jr., Deputy Atty. Gen., San Francisco, for defendant and respondent State of California.

The issue here is whether the filing of a federal court action somehow tolls the limitation period so as to permit filing in the state court more than six months after rejection of plaintiffs' claim by the two public agencies sued.

Plaintiffs seek damages from the State of California and the County of Santa Clara for (1) defamation, (2) conversion and (3) abuse of process, all allegedly arising from execution of an improper search warrant. Demurrers of state and county were sustained without leave to amend, and judgment of dismissal was entered. Plaintiffs appeal.

Before action may be brought against a public entity for money or damages, a claim must be presented to such entity, whether it be a local public entity (Gov.Code, s 905) or the state (Gov.Code, s 905.2). Suit against either type of public entity must be brought within six months after written notice of rejection of the claim is “personally delivered or deposited in the mail” (Gov.Code, s 945.6).

Plaintiffs presented claims to both state and county. That against the state was rejected by notice mailed May 22, 1975 and that against the county was rejected by like notice May 27, 1975. Each notice of rejection included the admonition required by statute (Gov.Code, s 913). It was headed “WARNING” in large bold face type and stated “ * * * you have only six (6) months from the date (of service of this notice) to file court action on this claim * * * ”. On September 11, 1975, plaintiffs filed in the United States District Court their complaint alleging three causes of action for violation of the civil rights act and the three counts described above. The federal court ruled that the counts under the civil rights act did not lie against public entities. It therefore dismissed the entire action, allegedly without prejudice to the filing of the last three counts in the superior court. Plaintiffs then filed this action February 9, 1976 more than eight months after notice to plaintiffs of rejection of their claims. Both public entities demurred. The court sustained each demurrer without leave to amend on the ground that the six-month limitation period of section 945.6 had run. Plaintiffs appeal.

Appellants rely upon a number of decisions holding the normal statutes of limitation tolled as to private defendants (e. g., Elkins v. Derby, 12 Cal.3d 410, 418-419, 115 Cal.Rptr. 641, 525 P.2d 81; Bollinger v. National Fire Insurance Co., 25 Cal.2d 399, 154 P.2d 399; Schneider v. Schimmels, 256 Cal.App.2d 366, 64 Cal.Rptr. 273; Rumberg v. Weber Aircraft Corp., 424 F.Supp. 294 (C.D. Cal., 1976). These decisions, however, emphasize but one function of the normal statute of limitations: deterring the assertion of claims which have become stale through the plaintiff's failure to notify the defendant of the nature of the claim in time to permit timely investigation. (See Order of R. R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-349, 64 S.Ct. 582, 88 L.Ed. 788.) None of the cited cases tolls the statute as to a public entity.

But California's statutory scheme limiting action against public entities requires both timely notice (Gov.Code, ss 911.2, 911.4) and timely filing of suit (Gov.Code, s 945.6). As has been said (Chase v. State of California, 67 Cal.App.3d 808, 811-812, 136 Cal.Rptr. 833, 834 and cases there cited), the Tort Claims Act prescribes “the time and manner of filing claims” against public entities “and the conditions under which” they may be sued. The act adequately avoids harshness of the notice requirement by extending that period on a showing of mistake, inadvertence, surprise, or excusable neglect. But “no similar liberality excuses the late commencement of actions” (id.). The tort claims statute “does not indulge late suitors to the same extent as it does late claimants” (Hunter v. County of Los Angeles, 262 Cal.App.2d 820, 822, 69 Cal.Rptr. 288, 289). “The prescribed statutes of limitation for commencement of actions * * * ‘are mandatory and must be strictly complied with’ ” (67 Cal.App.3d at p. 812, 136 Cal.Rptr. at p. 834, and cases there cited). Since the legislation clearly requires notice, and makes specific provision for extension of the notice period, the mere giving of notice cannot, as in the tolling of most statutes of limitation, afford a basis for avoiding the mandatory time for filing suit after claim is filed.

The Legislature has made its intent unmistakably clear. In 1968, the Supreme Court dealt with the case of a minor whose claim against a public body had been timely filed, but whose action on that claim was filed after the period allowed by section 945.6 but still during plaintiff's minority. (Williams v. Los Angeles, etc., Transit Authority, 68 Cal.2d 599, 68 Cal.Rptr. 297, 440 P.2d 497.) The code then provided for tolling of the general statutes of limitation by certain conditions, including minority (Code Civ.Proc., s 352), and the court held that this provision also tolled the limitation period of section 945.6 of the Government Code. The Legislature promptly amended section 352 to provide that it “does not apply to an action against a public entity * * * upon a cause of action for which a claim is required to be presented * * * ” (Stats. 1970, c. 104, p. 323, s 1).

The Legislature emphasized its intent that notice of claim is not adequate to toll the statute requiring timely filing of suit. Dual time requirements are fixed by statute, and we cannot construe the legislation as providing that compliance with one time requirement satisfies both. The codes contain no provision for tolling of the s 945.6 time by filing of an action in a court which does not have jurisdiction. Since notice is separately required, the purpose in limiting time for suit serves to assure prompt resolution of claims against a public entity, a purpose not served by filing in a court which lacks jurisdiction. Plaintiffs could have filed in both state and federal courts (see Rumberg v. Weber Aircraft Corp., supra). For reasons they deemed advantageous to themselves, they did not do so, and cannot now complain.

Judgment affirmed.

DRAPER, Presiding Justice.

SCOTT and DEVINE (Retired Presiding Justice of the Court of Appeal, assigned by the Chairperson of the Judicial Council), JJ., concur.

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