Orinda-County Fire Protection District v. Frederickson & Watson Co.

BRAY, P. J.

Plaintiff appeals from a judgment entered upon an order sustaining demurrer without leave to amend.

Question Presented

Is the county estopped to claim noncompliance with the claims statute?

Becord

Under the well known rule, this court, in testing the sufficiency of the complaint, must assume that all the facts therein alleged are true. The complaint alleges that plaintiff is a county fire protection district of the county of Contra Costa, organized under section 14400 et seq., Health and Safety Code, and governed by the board of fire commissioners appointed by the board of supervisors; that prior to the happening of the flood damage the defendants Frederiekson and Watson Company, a corporation, et al., and the county of Contra Costa were engaged in the construction and reconstruction of Orinda By-Pass; that defendant company was maintaining the highway and the channel of San Pablo Creek in a dangerous and defective condition in that the highway blocked the flow of water in the creek. The damage resulted when waters were thereby diverted from the channel onto plaintiff’s property on three specified dates, inundating it with debris and mud and causing damage in the amount of $12,500. Additionally, properties of plaintiff’s employees were damaged in the sum of $708.54. These employees assigned to plaintiff their claims.

1

Claims were filed with the

[591]

board of supervisors. The time of filing will be discussed later. The county demurred generally.

Estoppel

2

Defendant contends that plaintiff’s failure to file a claim against the county within 90 days of the floods as required by section 53052, Government Code, is fatal. Plaintiff contends that the circumstances of this case bring it within the rule of

Dettamanti

v.

Lompoc Union School Dist.,