Rand v. Andreatta

McCOMB, J. Plaintiff appeals from a judgment entered in favor of defendants after a ruling by the trial court, under section 597 of the Code of Civil Procedure, on a special defense constituting a bar to the prosecution of the action, in a suit for personal injuries alleged to have been caused by negligence of defendant Andreatta while in the course and scope of her employment by defendant county.

The issue presented to the trial court was whether plaintiff’s action was barred by reason of her failure to file claims pursuant to former sections 710 et seq. of the Government Code* prior to commencement of the action. The trial court’s determination of this issue in defendants’ favor necessarily included a determination that defendants were not estopped as a matter of law to set up such a defense.

Facts: At the time set for trial, the parties stipulated that (a) the accident occurred on April 5, I960; (b) plaintiff first saw an attorney no later than October 17, 1960; (c) no [849]claim as required by law was filed with either defendant prior to the filing of the action November 13, 1960; (d) a claim was filed with each defendant on or shortly following February 6, 1961, long after the time fixed by law for the filing thereof; (e) the police report covering the accident showed on its face that the vehicle driven by defendant Andreatta was owned by defendant county; (f) defendant Andreatta was acting in the course and scope of her employment by defendant county at the time of the accident; (g) findings of fact and conclusions of law were waived; and (h) the trial court might, pursuant to the provisions of section 597 of the Code of Civil Procedure, separately try the issue of whether plaintiff’s action was barred by reason of her failure to file a claim prior to commencement of the action, and if such issue was decided in plaintiff’s favor, the issue of whether the facts supported an estoppel.

In an amended complaint, plaintiff alleged facts which, if proved, would be sufficient to estop defendants from asserting the defense of failure to file the claims within the time required by law.

Questions: First. Does plaintiff’s failure to file claims, pursuant to the requirements of the Government Code, prior to commencement of the action prevent consideration of any facts which might estop defendants from asserting the defense of failure to file a claim on time ?

No. Since plaintiff commenced her action before filing the claims required by the Government Code, she is in the same position as if she had never filed a claim. Accordingly, we must determine whether estoppel may be used to excuse a failure to file any claim at all.