# Ebersol v. Cowan

> California Supreme Court · December 30, 1983 · 35 Cal. 3d 427

URL: https://www.frixlaw.com/law-library/cases/9588015

## Case

- **Full name:** MARIAN LEE EBERSOL, Plaintiff and Appellant, v. JAMES F. COWAN, as Superintendent, Etc., Defendant and Respondent
- **Court:** California Supreme Court
- **Decided:** December 30, 1983
- **Citations:** 35 Cal. 3d 427; 197 Cal. Rptr. 601; 673 P.2d 271; 1983 Cal. LEXIS 276
- **Precedential status:** Published
- **Opinion:** Concurrence by Bird
- **Judges:** Reynoso, Bird
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9588015

## Opinion text

BIRD, C. J.
—I concur in Justice Reynoso’s opinion for the court. However, I would rest the holding on the equal protection guarantee of the California Constitution. 1
It is the general policy of the State of California to provide protection from negligence to everyone. (Civ. Code, § 1714; Brown v. Merlo (1973) 8 Cal.3d 855, 870 [ 106 Cal.Rptr. 388 , 506 P.2d 212 , 66 A.L.R.3d 505 ]; Rowland v. Christian (1968) 69 Cal.2d 108, 118-119 [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.3d 496 ].) The California courts have not hesitated to overturn arbitrary classifications affecting tort recoveries, applying both common law (see, e.g., Rowland , ibid.; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 213-217 [ 11 Cal.Rptr. 89 , 359 P.2d 457 ]; Malloy v. Fong (1951) 37 Cal.2d 356, 364-367 [ 232 P.2d 241 ]) and constitutional doctrines (see, e.g., Brown v. Merlo, supra, 8 Cal.3d at pp. 864-883; Cooper v. Bray (1978) 21 Cal.3d 841, 848-855 [ 148 Cal.Rptr. 148 , 582 P.2d 604 ]; Monroe v. Monroe (1979) 90 Cal.App.3d 388, 391-392 [ 153 Cal.Rptr. 384 ]; Ayer v. Boyle (1974) 37 Cal.App.3d 822, 826-828 [ 112 Cal.Rptr. 636 ]).
*441 The legislation at issue here creates two classes of tort victims: (1) those injured by private parties, and (2) those injured by governmental entities. The first class may file a claim any time within the full period permitted by the general limitations statutes—i.e., from one to four years from the accrual of the cause of action, depending upon the type of action brought. (See, e.g., Code Civ. Proc., §§ 338, 339, subd. 1, 340, subd. (3), 343.) The second class must present a claim to the governmental tortfeasor not later than the 100th day after the accrual of the cause of action (Gov. Code, § 911.2), or face forfeiture of relief at the discretion of the tortfeasor (Gov. Code, §§ 945.4, 911.4). 2
This court has recognized that “[t]he rule of governmental immunity for tort is an anachronism, without rational basis (Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d at p. 216 ; but see Flournoy v. State of California (1964) 230 Cal.App.2d 520, 524-525 [ 41 Cal.Rptr. 190 ].) A sweeping distinction between victims of governmental and private torts makes no more sense with regard to onerous procedural requireménts than with regard to governmental immunity. “A [person’s] life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law” (Rowland v. Christian, supra, 69 Cal.2d at p. 118 ) merely because his or her injury was caused by governmental as opposed to private negligence.
In Tammen v. County of San Diego (1967) 66 Cal.2d 468, 481 [ 58 Cal.Rptr. 249 , 426 P.2d 753 ], this court upheld the claims presentation requirements without discussion. Recent appellate decisions upholding the requirements have added little or no analysis. 3 I would overrule Tammen and invalidate the claims presentation requirements as violative of the equal protection guarantee.
This guarantee is contained in three provisions. Article I, section 7, subdivision (a) provides in part: “A person may not be . . . denied equal protection of the laws Article I, section 7, subdivision (b) states in part: “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.” Article IV, section 16, subdivision (a) provides: “All laws of a general nature have uniform operation.”
The injured person may obtain judicial relief from this requirement, but only if: (1) his or her failure to meet the 100-day limit was due to mistake, inadvertence, surprise, or excusable neglect, (2) the injured person was a minor or was physically or mentally incapacitated throughout the 100-day period, or (3) the injured person died before the expiration of the 100-day period. (Gov. Code, § 946.6.)
See, e.g., Maisel v. San Francisco State University (1982) 134 Cal.App.3d 689, 695 [ 184 Cal.Rptr. 694 ]; Tsingaris v. State of California (1979) 91 Cal.App.3d 312, 315 [ 154 Cal.Rptr. 135 ]; Smith v. City and County of San Francisco (1977) 68 Cal.App.3d 227, 230 [ 137 Cal.Rptr. 146 ]; Carr v. State of California (1976) 58 Cal.App.3d 139, 142-143 [ 129 Cal.Rptr. 730 ],

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9588015. Public record. Not legal advice.