characterizing the rule of Whitfield as a rule of accrual
How later courts described this case
- characterizing the rule of Whitfield as a rule of accrual
- a case that did not mention section 340.5
Written by the judges who cited it.
Distinguished
Distinguished by County of Los Angeles v. Superior Court, 111 Cal. Rptr. 2d 471 (2001)
The facts in both the Hernandez and the Reyes case are readily distinguishable from the facts here, because Minors here had no parent, or legal parent equivalent such as a guardian, legally capable to act on their behalf.
The opinion
MOSK, J.
I concur in the majority’s holding that the tolling provision of section 911.4 of the Government Code does not apply to minors. 1 But I dissent from its further conclusion that a minor’s late claim application is timely if filed within one year of the accrual of his cause of action, and that the lack of diligence of a parent may not be imputed to the minor for the purpose of deciding whether a late claim application was filed within a reasonable time.
As to the first point, the majority holding is contrary to the provisions of sections 911.4 and 946.6 that a late claim application on behalf of a minor must be filed within a reasonable time. The majority acknowledge that the cases they cite in support of their holding recognize this requirement, but they simply read it out of the statute by holding that a late claim application on behalf of a minor is timely if it is filed within one year of the accrual of the cause of action. On the second issue, the existence of the “reasonable-time” requirement is itself an indication that a minor is bound by his parent’s failure to comply with the statute. It is inconceivable that the Legislature imposed on a minor—including an infant—the duty to act within a reasonable time or risk forfeiting his claim. Only an adult can be expected to meet such a standard. If a parent’s negligence in this regard could not be attributed to a minor, the “reasonable-time” requirement would have no meaning or effect as to him.
Furthermore, it is anomalous to conclude, as do the majority, that, while a minor is barred by his parent’s negligence in failing to file a late claim application within one year of the accrual of the cause of action, he is not barred if his parent fails to file such an application within a reasonable time.
The provisions of section 911.6 do not justify the majority’s conclusion. Although the section does not provide that the late claim application must *1032 be filed within a reasonable time, section 911.4, and section 946.6, which directly applies to the present proceeding, do impose such a requirement, as do the cases cited by the majority. To the extent section 911.6 may be inconsistent with sections 911.4 and 946.6 in this regard, it is the latter and later provision which must prevail. 2
Another indication that the majority errs in its construction of the claims statute is the provision of section 946.6, applicable to both minors and adults, that a petition for relief from the claim filing requirement must contain a statement of the reason for the minor’s failure to present a claim within 100 days. 3 While I do not pretend to find perfect harmony in the statutory scheme, there would be no reason to include these directions to the court if, as the majority hold, the minor automatically has a one-year period to file his claim application without regard to the reason for the delay.
Of the cases purportedly supporting the majority, only Williams v. Mariposa County Unified School District (1978) 82 Cal.App.3d 843 [ 147 Cal.Rptr. 452 ], clearly holds that the lack of diligence of a parent may not be imputed to a minor in the filing of a late claim application, and only it was decided after section 911.4 was amended in 1970 to make clear that the Legislature intended to apply the same diligence standards to minors as to adults. (Stats. 1970, ch. 411, § 1, p. 822.) None of the other cases cited discusses the issue raised here. There was no petition for hearing in Williams , and this court has not decided the issue raised therein. Thus I believe it should be disapproved.
The trial court was clearly justified in concluding that plaintiff did not file his late claim application within a reasonable time. I would affirm the judgment of the Court of Appeal.
Lucas, J., and Panelli, J., concurred.
Respondent’s petition for a rehearing was denied March 11, 1987.
All further statutory references are to the Government Code unless otherwise indicated.
Section 911.6 is part of the 1963 Tort Claims Act (Stats. 1963, ch. 1715, § 1, pp. 3372, 3376), while section 946.6 was enacted in 1965 (Stats. 1965, ch. 653, § 22, p. 2016).
Section 946.6 provides in subdivision (b)(2) that a petition to the court to be relieved of the claim filing requirement must show “the reason for failure to present the claim within the time limit specified in section 911.2.”