Goncalves v. San Francisco Unified School District

WOOD (Fred B.), J.

Judgment against plaintiffs was rendered upon the sustaining of general demurrers to a complaint in which Richard Goncalves, a minor, sought damages from the San Francisco Unified School District and its agent and employee Robert J. Polidori, allegedly caused by negligence in the placing of artificial guide poles or barriers in the street, incident to the conduct of student automobile driving lessons. He also claims damages from the city and county of San Francisco on the theory that the placing and maintenance of the guide poles and barriers created a dangerous condition. He was not a student driver. Operating a motor scooter, he ran into one of the barriers and then into the district’s automobile. Richard’s mother joined as a plaintiff, seeking recoupment of the cost to her of his medical and hospital care.

It appeared upon the face of the complaint that the accident occurred on May 15, 1956, but that claims were filed with the city and the district and served upon Polidori more than five months later, thus exceeding the 90-day limit pre

[89]

scribed by law. (Ed. Code, § 1007; Gov. Code, §§ 1981 and 53052.)

Plaintiffs concede that timely filing of such a claim is a legal prerequisite to the maintenance of an action and that our Supreme Court has held the claim filing requirement applicable to a minor, citing

Artukovich

v.

Astendorf,

21 Cal.2d 329 [131 P.2d 831]. They claim that that decision was against the majority rule as reflected by decisions of other states and not in accord with the social policy of this state. Those very contentions were considered and overruled in the Artukovieh case. Moreover, it would not be our function as an intermediate court of appeal to undertake a reexamination of a Supreme Court decision with a view to enunciating and enforcing a different rule of law than the rule declared in that decision.

Plaintiffs make the further contention that by denying an application for a hearing in the later case of

Schulstad

v.