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

LOUIS A., a Minor, etc., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent, CITY OF La HABRA et al., Real Parties in Interest.


Decided: June 22, 1987

Matthew B.F. Biren, Los Angeles, for petitioners. No appearance for respondent. Ruston & Nance and Nancy E. Zeltzer, Santa Ana, for real party in interest City of La Habra. Gordon S. Baca, Acting Chief Counsel, Sacramento, Joseph A. Montoya, Anthony J. Ruffolo, Robert W. Vidor, Larry R. Danielson, Los Angeles, and Alexander M. Dai, Arcadia, for real party in interest State of Cal.

May a tort plaintiff who was previously granted relief from the claims filing requirement of Government Code section 945.4 amend his complaint against public entity defendants to allege a new theory of liability relating back to the original injury, although a similarly situated plaintiff who complied with the filing requirement of Government Code section 945.4 might be precluded from a similar amendment? 1  In our view the unambiguous language of section 946.6 compels an affirmative response.2


Sixteen-year-old Louis P. A. was severely injured on May 8, 1982, when his bicycle was struck by a car on Imperial Highway in the City of La Habra.   He was rendered a quadriplegic and suffers from retrograde amnesia.   He has no recollection of the accident.

On May 5, 1983, the minor's counsel filed a complaint for personal injuries against the various owners of real property in the vicinity of the accident, the City of La Habra, the County of Orange,3 and the State of California.4  A.'s attorney had failed to timely file claims with the public entities, however.   He applied for leave to file them late and included in the applications the proposed claims, as required by Government Code section 946.6, subdivision (b)(3).   The proposed claims described the then contemplated basis for the public entities' liability:  “The claimant was forced to manuever [sic ] his bicycle into the traffic lanes as a result of attempting to avoid bushes growing from property adjacent to the accident location.   This public entity was aware that these bushes were growing, that they presented a hazard to motorists and other vehicles using the adjacent roadway, and, negligently failed to take action to delete this hazard, proximately causing the accident to occur.”   The applications were denied by each of the public entities;  but on August 29, 1983, the superior court granted the disabled minor's petition for relief from the claim filing requirement.  (Gov.Code, § 946.6.)

A.'s counsel then proceeded with the complaint on file.   It included the following allegations concerning the liability of the public entities:  “(a) The highway property created a substantial risk of injury because bushes and shrubs were overhanging onto the westbound Imperial Highway so as to obstruct the view of the drivers of motor vehicles traveling in that direction.  [¶] Furthermore, these overhanging bushes and shrubs constituted a dangerous condition in that persons like the Plaintiff were forced to drive around them, into the lane of oncoming traffic, while riding a bicycle.  [¶] (b) The dangerous condition of the highway property resulted from the negligence of Defendants.   Particularly, Defendants negligently maintained or supervised the highway property.  [¶] (c) Defendants had actual and/or constructive knowledge of the dangerous condition of the highway property a sufficient time prior to the accident to have taken measures to correct the dangerous condition.”   The offending bushes were located on property owned by the private defendants.

A.'s theory of liability was eviscerated, however, when discovery revealed the bushes and shrubs had been trimmed the day before the accident.   The private defendant property owners were then either granted summary judgment or voluntarily dismissed from the action.

In February 1986, A.'s counsel moved to amend the complaint to add new theories of liability against the same public entities based on alleged construction defects in the street itself.   He now desperately claimed the accident was caused by a welt-like ridge where the street asphalt meets the concrete gutter in combination with several other factors, e.g., absence of a bicycle lane or sidewalk, impermissibly narrow traffic lanes, a negligently placed culvert, and gusts of wind generated by the speed of traffic and the narrow lanes.   The proposed amended complaint also identified seven Does as private defendants alleged to have been involved in the design or maintenance of the highway.

The motion was denied, and A. petitioned this court for extraordinary relief.   We issued an alternative writ with respect to the public entity defendants.5


While courts liberally permit amendments to state new but related causes of action against private defendants in tort actions, even when the statute of limitations has run, the same is not true with respect to actions for damages against public entities.   The rule has long been that the legal theories alleged in a complaint against public entities may not vary from those included in the claim which preceded the action, and the wisdom of that rule is not presently before us directly.  (See, e.g., Donohue v. State of California (1986) 178 Cal.App.3d 795, 224 Cal.Rptr. 57 [cause of action for negligent supervision of drivers test examinee dismissed because the claim only sought damages based on the state's negligence in permitting an uninsured individual to take the drivers test];  State ex rel. Dept. of Transportation v. Superior Court (1984) 159 Cal.App.3d 331, 205 Cal.Rptr. 518 [causes of action for personal injuries stricken from complaint where the claim against the public entity was for property damage only];  and Connelly v. State of California (1970) 3 Cal.App.3d 744, 84 Cal.Rptr. 257 [cause of action for negligence in releasing water from dams dismissed where the claim sought damages only for negligence in advising as to flood water levels].)

Thus, had A. filed a timely claim with the city, county, and state pursuant to Government Code section 945.4, there is no question under existing law he would have been barred from amending the complaint more than one year after the accident to add a theory of liability which was not supported by the facts included in that claim.   But when A.'s petition pursuant to Government Code section 946.6 was granted, he was specifically “reliev[ed] ․ from the provisions of Section 945.4.”   As the statute provides, the order did not merely allow him to file his proposed claims, it excused him from filing them at all.   Does this exemption have the effect of putting public entities on the same footing as private defendants in determining whether an amendment otherwise barred by the statute of limitations relates back to the filing of the complaint?   For reasons discussed below, we conclude it does.

Division Two of this court discussed the issue in passing last year in Williams v. Braslow (1986) 179 Cal.App.3d 762, 224 Cal.Rptr. 895.   In dictum, however, the panel rejected the determination we make today.   In Braslow a plaintiff was relieved from the claims presentation requirement and permitted to sue a physician and a county hospital for medical malpractice.   The county obtained summary judgment by proving the sole physician identified in the plaintiff's proposed claim (which was attached to her application for leave to file a late claim) as the negligent public employee causing her injuries was neither an employee or agent of the county.   The court reversed the judgment to give plaintiff the opportunity to amend her complaint to allege “that within 100 days of the accrual of her cause of action she did not know or have reason to know the identities of the public employees who caused her injury ․ [i.e., two other doctors who were named in her original complaint in addition to the single doctor named in the proposed claim].”  (Id., at p. 773, 224 Cal.Rptr. 895.)   Because section 910, subdivision (e) only requires “[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known ․,” the plaintiff was, in effect, permitted to change the theory of her complaint to place the blame on the two doctors who were public employees, provided she could plead and prove she was unaware of their names within 100 days of the surgery.

Although not necessary to its decision, the Braslow court fairly stated the problem confronting us:  “[Plaintiff has raised] the novel question of what the legal consequences were of granting the section 946.6 petition.   A ready interpretation of the plain language of that section is that granting the petition relieved plaintiff-petitioner from the provisions of section 945.4․  In the first instance, it could therefore be argued, once a section 946.6 petition be granted, that a suitor against a public entity need no longer be concerned with the entire claims apparatus of the Tort Claims Act.   Else, what does relieved ‘from the provisions of Section 945.4’ mean?


“While this presents an intriguingly simple and neat disposition of the question, to settle upon such an interpretation would lead to the anomalous result of placing the section 946.6 petitioner in a better position than one who had filed a timely claim and who thereafter would be limited by the factual content of the timely claim in any effort to pursue his claim in the courts.   We are satisfied that the Legislature did not intend such a result when it amended section 946.6 in 1970.”  (Id., at pp. 770–771, 224 Cal.Rptr. 895.)

We are not in accord.   Although the result may appear to reward tardiness in the presenting of claims against public entities, we believe the clear language of the statute must prevail.   There is nothing we have encountered to suggest the Legislature did not intend the literal application of the language it chose.

Moreover, contrary to the views of our brethren in Division Two, there is a rational basis for disparate treatment based on the timing of the filing of the claim.   The primary purposes of the claims statutes are to provide public entities with prompt notice so that defective or dangerous conditions may be corrected, meritorious claims may be settled without litigation, and limited risk management resources may be properly allocated.6  (See, e.g., Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 113 Cal.Rptr. 102, 520 P.2d 726;  Van Alstyne, Cal. Government Tort Liability Practice (1980 Cont.Ed.Bar) § 5.6, p. 435.)   Accordingly, plaintiffs have traditionally been limited in litigation against public entities to the facts and theories set forth in their claims.   But when section 946.6 relief is allowed, those purposes have already been frustrated for overriding reasons of fairness to the plaintiff.7  By allowing an amendment to a complaint where the claims requirement has been waived by the trial court, the public entity is merely placed in the same position as any private defendant.

It may be anomalous to apply the more liberal relation-back rules to a tardy claimant in contrast to one who filed timely yet incorrectly, but it would be just as anomalous to impose the stricter rule where the court has already determined that the claim requirement and, inferentially, its purposes were legitimately outweighed when relief was first granted.   To extend the reach of the claims statute by implication, as Braslow suggests, is to gild a lily that already shines brightly enough.   The rationale for forbidding amendments to allege different causes of action is inextricably tied to the claims presentation requirement.   A public entity not promptly advised of every alleged cause of an accident cannot take immediate steps to settle the dispute, correct the defect or danger, or set aside the necessary risk management funds.

Once the claims filing requirement has been dispensed with in a particular case, however, what public policy is served by forbidding amendments to allege new theories of liability?   At that point, the superior court has already determined other factors in the case override the law's requirement of prompt notification of the claim.   We cannot divine any additional policy considerations, nor apparently can the public entities here, to prevent the belated adoption of a different theory of liability.

Also, public entities are not compelled to continue the current routine practice of denying all requests to file late claims automatically.   They can hold a plaintiff to the theory of the proposed claim by simply allowing it to be filed.   Although we are not optimistic, today's decision ought to provoke a reevaluation of the automatic rejection habit, perhaps tempering a harsh statute with a smattering of fairness to the victims of public entity torts and somewhat abating the constant flood of requests for relief from the claims requirement in law and motion departments.

We hasten to emphasize that our strict application of the plain language of section 946.6 affects only an insignificant number of plaintiffs.   A plaintiff suing a public entity after denial of a timely claim who discovers a new cause of action or suffers additional damages within one year of its accrual may petition the public entity for leave to file a late claim to assert the newly discovered facts or legal theories.   If denied, he may petition the superior court for relief from the claim filing requirement as to the proposed amendments to his complaint.   The plaintiff who sues a public entity after being relieved of the claims presentation requirement will be able to amend under the liberal relation-back rules in effect for all civil litigants suing private defendants.

Only that small percentage of plaintiffs who timely filed claims and failed to discover a different cause of action within one year will be forever limited to the theories set forth in their original claims.   If they are unjustly isolated in a more hostile legal environment for that reason, it does not appear to us that requiring a minor (who was severely injured in an accident he cannot recall) to join them there will cure that injustice.   It would make more sense to fashion a remedy for those plaintiffs than it would to penalize this one.   We see no reason under these circumstances to deny A. the benefit of the plain language of the statute.   For the reasons stated above (and in our previous opinion with respect to the relation-back doctrine as it applies to the private defendants), we hold the amendment should be allowed.

Let a peremptory writ of mandate issue directing the superior court to reverse its order denying the motion for leave to amend the complaint and to enter a new order granting the motion.   The stay previously imposed is dissolved, and the alternative writ is discharged.

I dissent.

The majority, understandably sympathetic to a severely injured plaintiff, has distorted the clear intent of the Tort Claims Act to reach a desired result.   It concludes an order under section 946.6 relieving a late claimant-petitioner from the claim filing requirement of section 945.4 frees him from the boundaries of his proposed claim, thereby elevating him to a position far more advantageous than that of a timely claimant.

Contrary to the majority's assertions, the legislative history of section 946.6 reveals its intent was to expedite the late claims process, not expand the rights of a late claimant.  “Section 946.6 establishes a new procedure for obtaining a judicial determination of the issue following a public entity's rejection of an application for leave to present a late claim․ [¶] ․ [T]he original procedure ․ required a successful petitioner to present his late claim to the entity, to be acted upon in the ordinary way.   Any benefit to be gained from so proceeding appears to be outweighed by the delay involved.  [¶] Accordingly, the Commission recommends that the petition to a court, following the presentation and rejection of an application to the public entity to present a late claim, be a petition for relief from having to present any claim at all instead of one for leave to present a late claim․”  (Cal.Law Revision Com. com., Deering's Ann.Gov.Code, § 946.6, p. 609.)   Rather than allowing the public entity to evaluate the merits of the late claim after a petitioner obtains relief from the court, the Legislature determined it was more important “that the entire panoply of proceedings (administrative and judicial) be expedited.”  (Los Angeles City Sch. Dist. v. Superior Court (1970) 9 Cal.App.3d 459, 468, 88 Cal.Rptr. 286;  Church v. County of Humboldt (1967) 248 Cal.App.2d 855, 858, 57 Cal.Rptr. 79.)

A plain reading of the statute, coupled with logic and common sense, reveals the legislative intent of section 946.6 was to relieve a claimant from having to present the late claim to the public entity as a prerequisite to filing his lawsuit, not to relieve him from the entire statutory scheme.   The majority neglected to quote the last portion of the section:  “(f) If the court makes an order relieving the petitioner from the provisions of Section 945.4, suit on the cause of action to which the claim relates must be filed in such court within 30 days thereafter.”  (§ 946.6, emphasis added.)   This subdivision refers to the proposed late claim and clearly indicates that claim governs the parameters of the lawsuit filed.

The majority admits its remarkable result, which rewards the late claimant by freeing him from the limits of his proposed claim, “may be anomalous.”   (Majority opn., ante, p. 914.)   However, it asserts, such disparate treatment is justified because once the claim is late, the purposes of the Tort Claims Act have been frustrated.   This is not so.

The statutory purpose of prompt notice of a claim is largely preserved when relief from the claim presentation requirement is granted.   First, section 946.6 relief is only available to a claimant who has filed for leave to present a late claim within one year from the accrual of the cause of action (§ 911.4, subd. (b)), thus protecting the entity from claims older than one year. Second, the proposed claim provides notice of the facts and circumstances of the accident.  “The requirement of notice to the entity is not frustrated when such a petition is granted, because a copy of the claim must be attached to the late-claim application presented to it as precursor to the petition.   See Los Angeles City School Dist. v. Superior Court, supra.   See also Williams v. Mariposa Unified School Dist. [ (1978) 82 Cal.App.3d 843, 147 Cal.Rptr. 452] supra.”  (Van Alstyne, Cal. Government Tort Liability Practice (Cont. Ed.Bar 1980) § 5.57, p. 534.)

I do not personally endorse the principles underlying the Tort Claims Act.   When acting in its proprietary capacity, a public entity committing a tort should be treated in the same manner as a private entity or individual.   It is entitled to no greater notice or rights.   The Act erects an unjustified and illogical procedural barrier to meritorious claims by victims of government torts.   I see no logical basis for placing the government in a preferred class over the governed.

However, where the legislative intent is so clearly expressed, it is inappropriate for the judiciary to distort the statute to reach a contrary conclusion.   Plaintiffs have consistently been denied leave to amend complaints against public entities where “the amended complaint alleges a factual basis for recovery which was not fairly reflected in the claim filed․”  (State of California ex rel. Dept. of Transportation v. Superior Court (1984) 159 Cal.App.3d 331, 337, 205 Cal.Rptr. 518.   See also Williams v. Braslow (1986) 179 Cal.App.3d 762, 224 Cal.Rptr. 895;  Nelson v. State of California (1982) 139 Cal.App.3d 72, 188 Cal.Rptr. 479;  Lopez v. Southern California Permanente Medical Group (1981) 115 Cal.App.3d 673, 171 Cal.Rptr. 527;  Connelly v. State of California (1970) 3 Cal.App.3d 744, 84 Cal.Rptr. 257.)   The trial court was correct in refusing A. leave to file his amended complaint against the governmental entities.   I would deny the writ.


1.   Section 945.4 of the Government Code states, “Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be 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 until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.”

2.   As pertinent here, section 946.6 of the Government Code provides, “(a) Where an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from the provisions of Section 945.4.   The proper court for filing the petition is a court which would be a competent court for the trial of an action on the cause of action to which the claim relates and which is located in a county or judicial district which would be a proper place for the trial of such action, and if the petition is filed in a court which is not a proper court for the determination of the matter, the court, on motion of any party, shall transfer the proceeding to a proper court.“(b) The petition must show (1) that application was made to the board under Section 911.4 and was denied or deemed denied, (2) the reason for failure to present the claim within the time limit specified in Section 911.2 and (3) the information required by Section 910.   The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.“(c) The court shall relieve the petitioner from the provisions of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and that:“․“(2) The person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim;  or“(3) The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of such disability failed to present a claim during such time․”

3.   The County of Orange did not oppose A.'s motion in the trial court and has not appeared in this proceeding.

4.   The minor's mother is also a plaintiff.   For convenience in the discussion we do not refer to her again, although our determination on the merits is equally applicable to her lawsuit.

5.   As to the private defendants, in an unpublished opinion we granted a peremptory writ in the first instance directing the superior court to permit the filing of the amended complaint based on ordinary relation-back principles.   They are no longer parties to this proceeding.

6.   The practical result of the claims statutes (Gov.Code, § 910 et seq.), of course, is to create a trap for the unsophisticated and the unwary.   In our view the Legislature ought to seriously consider major modifications to the current system or even the elimination of the claims statutes entirely.

7.   Relief was clearly appropriate here.   The claim was made within one year after the date of injury, and the lead plaintiff was a physically and mentally incapacitated minor during the 100 days after the date of injury who retained no recollection of the accident.  (Gov.Code, § 946.6, subd. (b)(2) and (3).)

CROSBY, Associate Justice.

TROTTER, P.J., concurs.

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