CITY OF REDONDO BEACH v. SUPERIOR COURT COUNTY OF LOS ANGELES (1979)

Two petitions, similar in many respects, seek writs of mandate to require respondent court to sustain demurrers to cross-complaints that were filed by the real parties in interest without compliance with the claim requirements of the California Torts Claims Act. (Gov.Code, ss 900ff.) We granted an alternative writ in each case and consolidated the two petitions for hearing.

FACTS

Petition of the County of Los Angeles. Plaintiffs Caricofe suffered personal injuries in an automobile collision with a county vehicle on 25 May 1976. Their claims were filed against the County on June 25 and 26 and denied by the County on October 8 and 12. On 2 November 1976, plaintiffs filed a complaint for personal injuries against the County and Elroy Villines, the driver of the County vehicle. On 5 October 1977, plaintiffs filed a first amended complaint which added as a defendant Little Joe's Restaurant as the wrongful supplier of alcoholic drinks to Villines. Thereafter the County filed a cross-complaint against Little Joe's. On 6 October 1978 Little Joe's answered the County's cross-complaint and served its own cross-complaint on the County seeking comparative contribution or indemnification. For convenience we tabulate a monthly chronology:

The County demurred to Little Joe's cross-complaint upon the ground the latter had not complied with the California Tort Claims Act, in particular Government Code section 935(a) and (b), County Administrative Code section 93.200, and Government Code section 945.4. The demurrer was overruled, the County was ordered to answer the cross-complaint, and thereafter mandate was sought by the County.

Petition of the City of Redondo Beach. On 3 August 1976 plaintiff Collins incurred personal injuries in a vehicle collision. On 13 April 1977 Collins filed a complaint for personal injuries against Steven Moffat and Milton Moffat. On 11 August 1978 the Moffats served a cross-complaint against the City for indemnity, declaratory relief, and comparative contribution, pleading the City's liability for defective highway maintenance. For convenience we tabulate a monthly chronology:

The City demurred to the cross-complaint on the ground it failed to show compliance with the California Tort Claims Act, in particular Government Code sections 911.2 and 945.4 which require the filing of a claim. The demurrer was overruled, the City was ordered to answer the cross-complaint, and thereafter mandate was sought by the City.

DISCUSSION

The policy behind Government Code section 911.2, which requires the filing of a claim against a public body prior to institution of suit on a cause of action for personal injuries, is succinctly stated by the California Law Revision Commission: “First, they (the statutes) give the governmental entity an opportunity to settle just claims before suit is brought. Second, they permit the entity to make an early investigation of the facts on which a claim is based, thus enabling it to defend itself against unjust claims and to correct the conditions or practices which gave rise to the claim.” (Quoted in California Government Tort Liability, California Continuing Education of the Bar, 1964, at p. 361.) Government Code section 911.2 requires presentment of claims against public bodies for personal injuries within 100 days of the accrual of the cause of action. The two petitions have different procedural backgrounds and require different dispositions.

A.

In respect to the County's petition we think the court properly overruled the County's demurrer to the cross-complaint brought by Little Joe's Restaurant. It seems clear:

(1) The County had been timely advised of the accident and of these claims in June 1976, and in October 1976 it rejected the claims. The statutory policy of notification was substantially satisfied. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455-57, 115 Cal.Rptr. 797, 525 P.2d 701.)

(2) The County itself filed a cross-complaint against Little Joe's prior to the time the latter reciprocated with its own cross-complaint against the County. We think the County is barred on the principle of equitable estoppel from complaining about the filing of a cross-complaint that was triggered by its own pleading. (Farrell v. County of Placer (1944) 23 Cal.2d 624, 628-31, 145 P.2d 570; cf. Liberty Mutual Ins. Co. v. Fales (1973) 8 Cal.3d 712, 718, 106 Cal.Rptr. 21, 505 P.2d 213.)

We conclude the demurrer was properly overruled and the County should be required to answer.

B.

The procedural history shown by the petition of the City of Redondo Beach is quite different. Collins filed an action for personal injuries against the Moffats in April 1977. Not until 16 months later did the Moffats purport to file a cross-complaint against the City for indemnity, declaratory relief, and comparative contribution. Their complaint against the City was thus filed two years after the accident and 16 months after the Moffats had been sued. It also appears that no claim against the City was filed by any party pursuant to Government Code section 911.2, which requires notice of a claim for personal injuries to be presented within 100 days of the accrual of the cause of action. On its face the cross-complaint appears vulnerable to demurrer in a number of respects:

(1) The action against the City was initiated well beyond the general one-year period of limitation for actions involving personal injuries. (Cf. County of San Diego v. Sanfax Corp. (1977) 19 Cal.3d 862, 874-79, 884, 140 Cal.Rptr. 638, 568 P.2d 363.)

(2) No claim under Government Code section 910 was presented to the City.

(3) No claim under Government Code section 911.2 was presented to the City within 100 days of the time the Moffats were served.

(4) No claim under Government Code section 911.2 was presented to the City within one year of the time the Moffats were served.

(5) No request under Government Code section 946.6 was presented to the superior court for relief from the filing provisions of Government Code sections 911.6 and 945.4.

(7) No leave of court was obtained by the Moffats to file a delayed cross-complaint more than one year after their statutory time to answer the complaint had expired. (Code Civ.Proc., s 428.50.)

At bench, the Moffats, real parties in interest, rely on the proposition that indemnity and declaratory relief need not be sought until liability has been established. As a general statement applied to instances of true indemnity the proposition is correct. But significantly, the cause principally relied upon by the Moffats, American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 583, 607, 146 Cal.Rptr. 182, 578 P.2d 899, involved the issue of apportionment of liability on the basis of comparative negligence and proportionate fault; and the ruling in that cause allowed a defendant “to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis.” (p. 607, 146 Cal.Rptr. p. 200, 578 P.2d p. 917.) At bench the Moffats sought damages against the City as a concurrent tortfeasor on the principle of comparative fault and proportionate contribution. Timeliness of claim is necessarily required in actions among concurrent tortfeasors, as is reflected in the necessity to obtain leave of court to file a delayed cross-complaint (Code Civ.Proc., s 428.50). The statute of limitations is not tolled (Fidelity & Deposit Co. v. Claude Fisher Co. (1958) 161 Cal.App.2d 431, 437, 327 P.2d 78; Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 106 Cal.Rptr. 48, and cases there cited at p. 859, 106 Cal.Rptr. 48), and the Moffats must show good cause to justify their delayed cross-complaint. Causes involving subrogated claims by insurers under the special statutory authority of Insurance Code section 11580.2(g) are not in point. (Allstate Ins. Co. v. County of Alameda (1973) 33 Cal.App.3d 418, 109 Cal.Rptr. 53.) We think the cause of action pleaded by the Moffats in their cross-complaint is, in essence, one seeking comparative contribution among concurrent tortfeasors on the principle of comparative negligence and proportionate fault rather than one involving true indemnity as in liability under respondeat superior or liability as guarantor of the act of another where a person who is secondarily liable seeks to transfer the entire loss to one who is primarily liable or who has assumed primary liability. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506-507, 146 Cal.Rptr. 614, 579 P.2d 505, and cases cited in 4 Witkin, “Summary of California Law” (8th Ed. 1974) pp. 2348-58.) Accordingly, the Moffats must justify their long delay in initiating their action if they can.

The foregoing discussion is not intended to exhaust the possible ramifications involved in the pleadings, but merely to indicate our view that the trial court should sustain the City's demurrer to the cross-complaint with leave to amend. If thereafter the Moffats file a future cross-complaint, the court must then decide the legal issues presented to it on the basis of the facts then before it.

In County of Los Angeles v. Superior Court (Little Joe's Restaurant) the alternative writ is discharged. In City of Redondo Beach v. Superior Court (Moffat) a peremptory writ will issue requiring the court to sustain the demurrer of the City of Redondo Beach to the cross-complaint with leave to amend.

FLEMING, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.