Wilson v. People Ex Rel. Department of Public Works

California Court of Appeal Apr 11, 1969 No. Civ. 33043Published

Before: Fleming

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Holding. The court held that a plaintiff who obtains relief from the requirement to file a claim against the state must file suit within the 30-day statutory period, and an original complaint filed before the claim requirement was satisfied cannot relate back to toll this limitation period.

Issues

Whether a plaintiff's failure to file suit against the state within 30 days of an order relieving them of the claim-presentation requirement bars the action.
Whether an original complaint filed against a Doe defendant before a cause of action against the state accrued can relate back to satisfy the 30-day filing requirement.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A subsequent pleading which sets out the subsequent performance of a statutory condition precedent to suit cannot relate the time of performance of the condition back to the time of the filing of the original complaint”

FLEMING, J.

On 10 January 1967 plaintiff filed a complaint for damages against Southern California Rapid Transit District, the County of Los Angeles, and Does I through VI, alleging personal injuries incurred on 5 August 1966 in stepping from a bus to the sidewalk and pleading prior presentation to the transit district and the county of a written claim for damages in accordance with Government Code, section 945.4. Subsequently plaintiff applied to the state board of control for leave to present a late claim for damages against the State of California on the theory the state had some responsibility for the condition of the sidewalk. On the denial of her application by the state board she petitioned the superior court for relief under section 946.6 of the Government Code, and on 30 June 1967 she obtained an order relieving her of the requirement for the presentation of a written claim as a prerequisite to suit against the state.

Subsection (f) of the section under which plaintiff obtained relief provides: ‘ ‘ If the court makes an order relieving the petitioner from the provisions of Section 945.4,

suit on the cause of action

to which the claim relates

must he filed

in such court

within 30 days

thereafter.” (Italics added.) Plaintiff took no action within 30 days of the order of 30 June, but on 16 August 1967 she served a copy of her complaint on the state board as Doe I. The State of California demurred on the ground of lack of compliance with the 30-day period for filing suit, and its demurrer was sustained by the trial court without leave to amend. Plaintiff has appealed the subsequent order dismissing the State of California as a defendant.

Plaintiff could have complied with section 946.6, subdivision (f) by filing a separate action against the State of California during the 30-day period, or by amending her complaint to name the state as a party during the 30-day period, or hy serving the state with a copy of the complaint during the 30-day period. She took none of these steps, but she claims compliance with the section on the theory that her original complaint was filed against the State of California as a Doe and the subsequent service of the complaint on the state related back to the time of filing suit against the state to the time of the original complaint. She relies on

Day

Wilson v. People Ex Rel. Department of Public Works

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FLEMING, J.

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