The opinion
OPINION
Appellant asserts that he sustained personal injuries by reason of wrongful diagnosis and treatment by two employees of Mendocino State Hospital during the period February 2 through August 24, 1961. It was not until April 15, 1968 that he filed with the State Board of Control his application for leave to file a late claim, attaching to it a copy of the proposed claim. This application was denied by the board May 21, 1968. On June 18, appellant filed in the superior court his petition for leave to file late claim. The trial court denied his petition. He appeals.
(1) Appellant's claim is not against the state, but against two employees of Mendocino State Hospital. But the proper filing of a claim against the public entity is a condition precedent to action against the employees (Gov. Code, § 950.2, and Law Revision Commission comments thereon).
Under the claims statute, the claim must be filed within 100 days after accrual of the cause of action (Gov. Code, § 911.2). If it is not so filed, an application for leave to file the claim may be made, but must be filed "within a reasonable time not to exceed one year after the accrual of the cause of action" (Gov. Code, § 911.4). If the application for leave to file the late claim is denied, the claimant may petition the court for such relief (Gov. Code, § 946.6, subd. (a).) The court, however, may permit late filing only if the application to the public entity "was made within a reasonable time not to exceed one year after the accrual of the cause of action" (Gov. *Page 493
Code, § 946.6, subd. (c).) Here the application to the state board of control was made some six and one-half years after the latest date on which appellant claims to have sustained personal injuries. Appellant, however, asserts that he was "mentally incapacitated" until October 1, 1967, and that this suspends running of his time to file claim.
(2) The code section relied upon by appellant (Code Civ. Proc., § 352 ) tolls, during certain disabilities, only the running of the period for filing "an action." It does not apply to the filing of a claim against a public entity ( Artukovich v. Astendorf, 21 Cal.2d 329 [ 131 P.2d 831 ]). It is quite true that an "action against a public entity . . . for which a claim is required to be presented" (Code Civ. Proc., § 342 ) is "mentioned" in chapter three of that code, and thus is subject to section 352
( Williams v. Los Angeles Met. Transit Authority, 68 Cal.2d 599 , 602 [ 68 Cal.Rptr. 297 , 440 P.2d 497 ]). But Williams deals only with the "action" which must be commenced within a limited time after rejection of a claim which itself was timely (Gov. Code, § 945.6). The Williams claim was timely filed (p. 601). Williams does not extend the time for filing a claim, but only that for commencement of an action by the filing of the complaint. The decision does not disapprove Artukovich , but specifically recognizes its rule. The distinction between action and claim is emphasized by the statement (p. 608) that "[b]ecause plaintiff must timely comply with the claims procedures ( Artukovich v. Astendorf, supra, 21 Cal.2d 329 ), the public entity will be afforded the opportunity to investigate promptly the minor's claim. . . ." If there be anomaly in tolling of only the statute of limitations and not the running of the time to file claim, the concurring opinion in Williams makes clear that it was considered by the court in its holding. 1
As demonstrated above, the claim against the state was made long after expiration of the maximum time allowed by the claims statute.
Order affirmed.
Caldecott, J., concurred.
1 We note the recent decision ( Los Angeles City School Dist. v. Superior Court, 9 Cal.App.3d 459 [ 88 Cal.Rptr. 286 ] ) filed after oral argument herein. The true holding in that case, however, is upon facts readily distinguishable from those before us. There, the application to the public body for leave to file late claim was presented only 17 days beyond the 100-day period, and well within one year. Here, such application was made far more than one year after the injury.