California Courts of Appeal, 1971

Lewis v. City and County of San Francisco

California Courts of Appeal · Decided November 18, 1971 · Draper

21 Cal. App. 3d 339; 98 Cal. Rptr. 407; 1971 Cal. App. LEXIS 1076

Cases that cite this one

25 later published cases cite this decision.

Shelton v. Superior Court (Cal. Ct. App. 1976)
Gold v. California Highway Patrol (United States District Court for the Northern District of California 2025)
Dominguez v. City of Alhambra (Cal. Ct. App. 1981)
Janecek v. Dept. of Transportation CA3 (Cal. Ct. App. 2026)
Benson v. Southern California Auto Sales, Inc. (Cal. Ct. App. 2015)
Castaneda v. Department of Corrections & Rehabilation (Cal. Ct. App. 2013)
California Restaurant Management Systems v. City of San Diego (Cal. Ct. App. 2011)
Nelson v. County of Los Angeles (Cal. Ct. App. 2003)
Becerra v. Gonzales (Cal. Ct. App. 1995)
Powell v. NM STATE HWY. & TRANSP. DEPT. (N.M. Ct. App. 1994)
Powell v. New Mexico State Highway & Transportation Department (N.M. Ct. App. 1994)
Sumner Peck Ranch, Inc. v. Bureau of Reclamation (United States District Court for the Eastern District of California 1993)
Hareld v. Napolitano (R.I. 1992)
Mai Chi Nguyen v. Los Angeles County Harbor/UCLA Medical Center (Cal. Ct. App. 1992)
Madej v. Doe (N.J. Super. Ct. App. Div. 1984)
Grimshaw v. Ford Motor Co. (Cal. Ct. App. 1981)
Smith v. City and County of San Francisco (Cal. Ct. App. 1977)
Tessier v. Ann & Hope Factory Outlet, Inc. (R.I. 1975)
Chrysler Credit Corp. v. Ostly (Cal. Ct. App. 1974)
Lacy v. City of Monrovia (Cal. Ct. App. 1974)
Cupido v. City of Los Angeles CA2/1 (Cal. Ct. App. 2024)
Lea v. City of San Diego (United States District Court for the Southern District of California 2024)
Ramirez v. City of San Jose CA6 (Cal. Ct. App. 2023)
Berg & Berg Enterprises v. City of San Jose CA6 (Cal. Ct. App. 2015)
Smith v. Parks Manor (Cal. Ct. App. 1987)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

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 (Petersen v. City of Vallejo, 259 Cal.App.2d 757, 766-767 [66 Cal.Rptr. 776]). Mere knowledge by the public body of the accident and of the proposed claim is not sufficient (Redwood v. State of California, 177 Cal.App.2d 501, 504 [2 Cal.Rptr. 174] and cases there cited).

An action for wrongful death is wholly distinct from an action by the decedent, in his lifetime, for the injuries which ultimately cause his death (Marks v. Reissinger, 35 Cal.App. 44, 50-55 [169 P. 243]). An important right of one class of plaintiffs has been built upon this distinction in the area of governmental immunity (Garcia v. State of California, 247 Cal.App.2d 814 [56 Cal.Rptr. 80], hg. den.).

Although the above rebuttal arguments were advanced in respondents’ brief, no reply to them is attempted in appellants’ closing brief. We do not base our decision upon abandonment of the issue. Rather, we conclude that, under the authorities, Mrs. Lewis’ claim for damages for personal injuries cannot be deemed substantial compliance by her heirs with the claims statute, so as to support this wrongful death action by them.

Judgment affirmed.

Brown (H. C.), J., and Caldecott, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied January 13, 1972. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.