Sheeley v. City of Santa Clara

KAUFMAN, P. J.

The City of Santa Clara appeals from that portion of a judgment entered in favor of the respondent in a personal injury action holding that the respondent’s claim was legally sufficient pursuant to section 53052 of the Government Code. The contentions on appeal are that the trial court erred in ruling that the respondent’s claim was properly verified and that the city was estopped from denying the validity of the claim.

The facts are not in dispute. Respondent was injured by a fall in the city’s parking lot on February 2, 1958. She filed her duly notarized notice of claim on March 7, 1958, and her complaint on September 16, 1958. On October 3, 1958, the city demurred and moved to strike the complaint on the ground of failure to state a cause of action and to allege timely filing of a verified claim.

By stipulation, the issue of the sufficiency of the claim was tried first, without a jury, pursuant to section 597 of the Code of Civil Procedure. The evidence adduced at this time indicated that on March 4, 1958, before the filing of her claim, the respondent visited the office of her attorney who presented her with the claim which he had drafted. After the respondent had read the claim, the attorney asked her to raise her hand and swear the matters stated therein were true and

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to sign it. Her attorney, in his capacity as a notary, then signed the acknowledgment form, mistakenly believing it to be a verification form. The letter of transmittal sent with the notice of claim stated: “Enclosed please find the verified claim of Mrs. Margaret Sheeley.” In April 1958, the respondent’s attorney was contacted by telephone by Mr. Orr, a representative of the city’s insurer. After the filing of the complaint on September 16, 1958, Mr. Orr called the respondent’s attorney and expressed surprise that a complaint had been filed because a verified claim had not been filed.

After the trial court ruled that the notice of claim had been properly verified and the city notified thereof, trial by jury was had on the issues of liability and damages resulting in a judgment by stipulation for $30,000. The parties further stipulated that the trial court’s memorandum decision would constitute the findings of fact and conclusions of law, and that the city reserved the right to appeal the sufficiency of the notice of claim.