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Court of Appeal, First District, Division 4, California.

Stalin CHU and Gail A. Chu, Plaintiffs and Appellants, v. COUNTY OF SAN MATEO, etc., et al., Defendants and Respondents.


Decided: June 21, 1983

Lee & Hui, Michael G.W. Lee, San Francisco, for plaintiffs and appellants. Keith C. Sorenson, Dist. Atty., Michael D. McCracken, Deputy Dist. Atty., Redwood City, for defendants and respondents.

Stalin and Gail Chu appeal from a judgment dismissing on demurrer causes of action which appellants had alleged against respondents County of San Mateo and Ronald Scott, a county building inspector.   Appellants sought damages from various defendants including the County of San Mateo on the basis of alleged defects in a house built for appellants by some of the defendants and inspected by the building department of the County of San Mateo.   After demurrers had been sustained, a second amended complaint brought in as a defendant Ronald Scott, who allegedly had inspected and fraudulently approved the building in his capacity as a county employee.

The County of San Mateo, for itself and on behalf of Scott,1 demurred to the second amended complaint.   The demurrer was sustained without leave to amend and the court rendered judgment of dismissal as to the county and Scott;  the present appeal followed.


 Appellants contend that their complaint effectively alleged that the county was vicariously liable for misrepresentations by Scott.   In all versions of the complaint, the county was named as a defendant only in the eighth cause of action.   The thrust of that cause of action is that county employees issued permits, approvals, and certifications for the design, construction and occupancy of appellants' property with knowledge of defects and failed to disclose those defects.

 In California the tort liability of a public entity is wholly statutory.  (Morris v. State of California (1979) 89 Cal.App.3d 962, 964, 153 Cal.Rptr. 117;  Gov.Code, § 815.)   Potential governmental liability is confined to specified circumstances.  (Williams v. Horvath (1976) 16 Cal.3d 834, 838, 129 Cal.Rptr. 453, 548 P.2d 1125.)

 Statutes applicable in the present case provide immunity to the county.2  Appellants' argument against immunity is based on the general statute creating governmental liability for torts of public employees acting within the scope of employment.3  Appellants contend that a public entity is vicariously liable for a negligent or intentional misrepresentation by an employee who is guilty of fraud, corruption or malice despite the language of Government Code section 818.8.   This contention is without merit.   Although a public employee may be liable for injury caused by misrepresentation if he is “guilty of actual fraud, corruption or actual malice” (Gov.Code, § 822.2), the absolute immunity conferred by section 818.8 prevails over the general statement of liability in section 815.2.  (Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 154, 117 Cal.Rptr. 525.)   Fraudulent concealment is within that immunity.  (Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 419, 123 Cal.Rptr. 669.)   The immunities provided by Government Code sections 818.4 and 818.6 also shield the county from liability since those immunities are applicable unless there is a failure to comply with a mandatory duty.  (Morris v. County of Marin (1977) 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606.)   No mandatory duty was alleged in any of appellants' complaints as amended.  (See Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572–573, fn. 4, 108 Cal.Rptr. 480, 510 P.2d 1032.)   The county's demurrer was properly sustained without leave to amend as the county was immune from the asserted tort liability.


 Appellants presented to the County of San Mateo a claim for damages pursuant to the California Tort Claims Act.   The claim stated that the name of the public employee allegedly causing the injury or damage was unknown.   The claim was rejected in March of 1978.   Appellants filed on July 10, 1978, their first complaint containing a conventional “Doe” clause.   Ronald Scott was not named a defendant until the second amended complaint was filed, more than six months after the claim had been rejected.   The demurrer was sustained as to Scott on the ground that the cause of action was barred by appellants' failure to commence action on their claim within six months of the county's rejection of the claim.

A suit brought against a public entity on a cause of action for which a claim is required to be presented must be commenced within six months from notice of rejection of the claim.  (Gov.Code, § 945.6.)   Any action against a public employee is barred by failure to comply with this requirement.  (Gov.Code, § 950.2.)   The question is whether California's fictitious name statute has the effect, in a case against a governmental employee, of relating back to the date of the original complaint for the purposes of the statute of limitations.  (Code Civ.Proc., § 474.)

Respondent, in arguing that the fictitious name statute does not have the effect asserted by appellants, relies on Chase v. State of California (1977) 67 Cal.App.3d 808, 136 Cal.Rptr. 833.   There the Court of Appeal held that there could be no relation back of an amended complaint which substitutes the state as a party.   Chase is to be distinguished from the present case.   There the plaintiff wanted to substitute, in the place of a Doe, a public entity that had not been named in the complaint.   Plaintiff's knowledge of the entity involved was demonstrated by the fact that plaintiff had filed a timely claim against the entity pursuant to the Tort Claims Act.   Had the plaintiff been unaware of the public entity involved and “through mistake, inadvertence, surprise or excusable neglect” failed to file a timely claim, relief could properly have been granted.  (Gov.Code, § 911.6.)   The public entity could have granted permission to file a late claim within one year of the plaintiff's injury.  (Chase v. State of California, supra, 67 Cal.App.3d 808, 812, 136 Cal.Rptr. 833;  Gov.Code, § 911.2.)   Thus, had the plaintiff been unaware of the potential liability of the public entity, he could have had at least one and one half years, from the date of his injury, to commence suit.  (Gov.Code, §§ 911.2, 945.6.)

Relief should similarly be available to one who “through mistake, inadvertence, surprise or excusable neglect” fails to discover the identity of the public employee involved in his cause of action.   In the case before us, appellants had knowledge of the entity involved but perhaps not the employee involved.   They filed a claim against the entity within the 100-day period.   If the fictitious name statute is not applicable, the claimant's day in court against the public employee would be lost if he could not discover the employee's name within six months and 100 days of the date of injury.   It is unfair to give a claimant who is unaware of an employee's identity only six months and 100 days to commence suit, while providing that same claimant as much as one and one-half years to commence his action if he had also been unaware of the identity of the public entity.

Courts should strive “to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.”  (Addison v. State of California (1978) 21 Cal.3d 313, 316, 146 Cal.Rptr. 224, 578 P.2d 941.)   This can be done by the use of the fictitious name statute which is designed to allow a plaintiff who does not know the name of someone against whom he has a cause of action to commence an action before it is barred by the statute of limitations.  (Motor City Sales v. Superior Court (1973) 31 Cal.App.3d 342, 107 Cal.Rptr. 280.)   This statute has been applied in the past to a case involving an action against governmental employees where the Tort Claims Act provided for a six-month limitation period.  (Cooper v. Jevne (1976) 56 Cal.App.3d 860, 128 Cal.Rptr. 724.)   In Cooper, county building inspectors were not named defendants until the six-month filing period had elapsed.   The court held that “where a complaint sets forth, or attempts to set forth, a cause of action against a fictitiously named defendant and his true name is thereafter discovered and substituted by amendment, for statute of limitations purposes, he is considered a party to the action as of the date of the original pleading.”  (Id., at p. 873, 128 Cal.Rptr. 724.)   That rationale is equally applicable in the present case;  the fictitious name statute may, on an appropriate showing, render timely the suit against Scott.

 The judgment of dismissal is affirmed as to the County of San Mateo;  as to Ronald Scott the judgment is reversed with directions to overrule the demurrer.



1.   The record does not show that Scott was served or that he appeared in the action.   The demurrer was in the name of the county alone, but in a supporting memorandum argument in behalf of Scott was presented.   The parties to the appeal argue with respect to Scott's position, and we deal with those arguments, while noting the state of the record.

2.   Government Code section 818.4:  “A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”Government Code section 818.6:  “A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.”Government Code section 818.8:  “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”

3.   Government Code section 815.2 provides in pertinent part as follows:  “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”   Of more specific pertinence to the present case is section 822.2, extending liability to a public employee for injury caused by his misrepresentation, if “he is guilty of actual fraud, corruption or actual malice.”  (Gov.Code, § 822.2.)

 CHRISTIAN,* Associate Justice. FN* Under assignment by the Chairperson of the Judicial Council.

RATTIGAN, Acting P.J., and COOK, J.**, concur.