Moyer v. Hook

Opinion

DRAPER, P. J.

Appellant asserts that he sustained personal injuries by reason of wrongful diagnosis and treatment by two employees of Mendocino State Hospital during the period February 2 through August 24, 1961. It was not until April 15, 1968 that he filed with the State Board of Control his application for leave to file a late claim, attaching to it a copy of the proposed claim. This application was denied by the board May 21, 1968. On June 18, appellant filed in the superior court his petition for leave to file late claim. The trial court denied his petition. He appeals.

Appellant’s claim is not against the state, but against two employees of Mendocino State Hospital. But the proper filing of a claim against the public entity is a condition precedent to action against the employees (Gov. Code, § 950.2, and Law Revision Commission comments thereon).

Under the claims statute, the claim must be filed within 100 days after accrual of the cause of action (Gov. Code, § 911.2). If it is not so filed, an application for leave to file the claim may be made, but must be filed “within a reasonable time not to exceed one year after the accrual of the cause of action” (Gov. Code, § 911.4). If the application for leave to file the late claim is denied, the claimant may petition the court for such relief (Gov. Code, § 946.6, subd. (a).) The court, however, may permit late filing only if the application to the public entity “was made within a reasonable time not to exceed one year after the accrual of the cause of action” (Gov.

[493]

Code, § 946.6, subd. (c).) Here the application to the state board of control was made some six and one-half years after the latest date on which appellant claims to have sustained personal injuries. Appellant, however, asserts that he was “mentally incapacitated” until October 1, 1967, and that this suspends running of his time to file claim.

The code section relied upon by appellant (Code Civ. Proc., § 352) tolls, during certain disabilities, only the running of the period for filing “an action.” It does not apply to the filing of a claim against a public entity