Helzer v. North San Diego County Transit Development Board

Opinion

BROWN (Gerald), P. J.

Marvin Helzer and Merle Price appeal an order sustaining the North San Diego County Transit Development Board’s demurrer to their complaint without leave to amend. Maxine Hayworth appeals an order dismissing her complaint against the board for failing to amend after the board’s demurrer was sustained with leave to amend. We amend the order of the superior court dismissing Hayworth’s action by adding a paragraph dismissing Helzer’s and

[710]

Price’s actions and treat the appeal as one from the judgment of dismissal

(McGee

v.

Weinberg

(1979) 97 Cal.App.3d 798, 800 [159 Cal.Rptr. 86]).

Oriel Price and Marvin Price were killed on June 16, 1977, when their car collided with a bus owned and operated by the board. Merle Price, Hayworth, and Helzer, their heirs, filed wrongful death claims with the board on September 13, 1977, and were notified on September 16, 1977, the board denied their claims. On June 14, 1978, the heirs filed their complaint for wrongful death against the board. The board’s demurrer was sustained for the. heirs’ failure to file their complaint within six months after notice of denial of their claims (Gov. Code,

1

§ 945.6, subd. (a)(1)). The heirs appeal the judgment dismissing their complaint.

Section 945.6, subdivision (a)(1) requires a suit against a public agency on a cause of action for which a claim is required to be presented under section 911.2 be filed within six months after notice of denial of the claim. Section 945.6 is limited by its own terms by section 946.4, which provides failure to present a claim does not bar a suit against an agency not complying with section 53051. Section 53051 requires a public agency file with the California Secretary of State and the county clerk a statement of facts about the agency. An “agency’s failure to comply with section 53051 entitles the claimant to ignore the claim-filing requirement entirely.”

(Wilson