Lewis v. City and County of San Francisco

Opinion

DRAPER, P. J.

Plaintiffs, the surviving husband and daughter of Ethelena Lewis, seek damages for her wrongful death. Mrs. Lewis was injured in a municipal bus accident July 29, 1965. The complaint alleges that “within the time . . . prescribed by law,” i.e., within 100 days of the injury (Gov. Code, § § 905, 911.2), Mrs. Lewis filed with defendant city and county her claim for damages for her injuries. She died, allegedly as the result of those injuries, on May 9, 1968, some 33 months after her injury. No claim for damages for wrongful death was filed with the city and county, and it demurred to the complaint, which was filed May 8, 1969, upon this ground. The demurrer was sustained with leave to amend. No amendment was filed, and the action was dismissed as to the city. Plaintiffs appeal.

Appellants’ principal argument is that the claims statute unconstitutionally denies equal protection of the law in that it requires a claim

[341]

against a public body, but not against a private corporation or an individual. The contention is without merit

(Dias

v.

Eden Township Hospital Dist.,

57 Cal.2d 502, 504 [20 Cal.Rptr. 630, 370 P.2d 334]).

Appellants also argue that Mrs. Lewis’ filing of her claim for damages for personal injuries put the city fully upon notice, and permitted prompt investigation. Thus, it is argued, the claims requirement was substantially met. But the rule of substantial compliance has béen applied only when some claim, even though technically defective, is filed

(McGranahan

v.

Rio Vista etc. Sch. Dist.,

224 Cal.App.2d 624, 629 [36 Cal.Rptr. 798]).

The filing of a wrongful death claim by one heir for herself alone, even though it similarly gives the public body full opportunity to investigate, does not excuse absence of a claim by another heir