Harvey v. City of Holtville

[596]

COUGHLIN, J.

Plaintiff, Darlene Harvey, a Minor, appeals from an order denying her petition, filed pursuant to former Government Code, section 912, requesting permission to present a late claim against the defendant City of Holtville.

Plaintiff brought the instant action to recover damages for injuries allegedly caused by the dangerous and defective condition of property owned by defendant. A condition precedent to the maintenance of such an action, under the law applicable at the time, was the presentation of a claim by or on behalf of the injured person “not later than the 100th day after the accrual of the cause of action.” (Gov. Code, §§ 910, 911.2, 945.4.) Plaintiff’s injuries were sustained on March 29, 1964 when she was five years of age. No claim was presented within the 100-day period. On March 29, 1965 her father, acting on her behalf as her “natural guardian,” filed an application with the city council of the defendant city pursuant to former Government Code sections 911.4 and 911.6 for leave to present a late claim. Under these code sections application to present a late claim might be made “within a reasonable time not to exceed one year after the accrual of the cause of action”; and the city council was directed to grant the application where the person who sustained the alleged injury was a minor. As required by law the proposed claim was attached to the application. (Gov. Code, [1963] § 911.4.) Among other things, the claim recited: ‘ ‘ All notices or other communications with regard to this claim should be sent to claimant at c/o Don R. Work, Attorney at Law, 634 State Street, El Centro, California.” Thereafter Mr. Work, at the address aforesaid, received a letter from the city clerk dated April 13, 1965 which stated: “This acknowledges receipt of the claim of Carolyn Darlene Harvey against the City of Holt-ville in the amount of $10,744.00. At its meeting last evening, the Council by Resolution No. 950 denied the claim and referred it to the city’s insurance carrier.” The statute then existing required commencement of suit upon a claim against a city within six months after the claim was acted upon by the city council. (Gov. Code, [1963] § 945.6.) On June 25, 1965, plaintiff, through her father as guardian

ad litem,

filed the instant action. Subsequently demurrers by the defendant to the complaint and amended complaint were sustained. It appears the contention urged by defendant through its demurrers was the complaint did not allege the presentation of a claim within the time prescribed by the statute.