Spencer v. City of Calipatria

BARNARD, P. J.

This is an appeal from a judgment entered after a demurrer to an amended complaint was sustained without leave to amend.

The action is one for damages on account of injuries alleged to have been suffered by the appellant on November 1, 1932, through a defective sidewalk within the respondent city. As conceded by the appellant, no verified claim was filed in accordance with the statutes adopted in 1931 (Stats. 1931, pp. 2475 and 2476; Deering’s Gen. Laws, Acts 5149 and 5150). The complaint does allege that a written claim was delivered to each of the defendants, to the city clerk and to the board of trustees of said city, “setting forth the facts concerning said injuries sustained by the plaintiff and how, when and where the same were sustained and the address and claim of the plaintiff and asking that he be compensated for his injuries and setting forth his demand”.

The first question raised is as to whether the provisions of the statutes referred to are mandatory. It has long been held that there must be at least a substantial compliance with statutes of this nature, making certain steps essential before a suit may be filed. (Bancroft v.

San Diego,

120 Cal. 432 [52 Pac. 712];

Western Salt Co.

v.

City of San Diego,

181 Cal. 696 [186 Pac. 345];

Crescent Wharf etc. Co.

v. Los

[269]

Angeles,

207 Cal. 430 [278 Pac. 1028] ;

Uttley

v.

City of Santa Ana,

136 Cal. App. 23 [28 Pac. (2d) 377].) Not only is the filing of an unverified claim not a substantial compliance with a statute requiring that a verified claim be filed but, in two recent cases, it has been held that the provisions of the two statutes here in question are mandatory and must be complied with in order to lay the foundation for an action.