The opinion
I agree with the majority opinion that the Legislature's enactments compel both infants and insane persons to comply with *Page 494
the Government Code sections relative to the filing of claims against public entities. (Gov. Code, § 900 et seq.)
It is interesting to note that the Legislature in 1970 reaffirmed this policy by amending Code of Civil Procedure section 352 , which section tolled the statute of limitations as to incompetents and minors, and added subdivision (b) which provides: "This section does not apply to an action against a public entity or public employee upon a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) or Chapter 2 (commencing with Section 910) of Part 3, or Chapter 3 (commencing with Section 950) of Part 4, of Division 3.6 of Title 1 of the Government Code. This subdivision shall not apply to any claim presented to a public entity prior to January 1, 1971." (Stats. 1970, ch. 104; see also 1969 amendments to Gov. Code, § 910.8 et seq.)
This amendment (Code Civ. Proc., § 352 , subd. (b)) thus renders nugatory the Supreme Court's decision in Williams v. Los Angeles Met. Transit Authority, 68 Cal.2d 599 [ 68 Cal.Rptr. 297 , 440 P.2d 497 ], in future cases.
It would seem that to require an infant or a hopelessly insane person to meet the requirements of the Government Code claims section is, in fact, demanding the performance of an impossible act and would be contrary to the long established policies of both the Legislature and the courts to protect minors and incompetents. It is also possible that such legislation is in violation of due process requirements under our Constitution. This seems especially true where the public entity (as the court found here) is not prejudiced by the delay. (See Gonzales v. County of Merced, 214 Cal.App.2d 761 , 766 [ 29 Cal.Rptr. 675 ]; Viles v. State of California, 66 Cal.2d 24 , 32 [ 56 Cal.Rptr. 666 , 423 P.2d 818 ].)
Many cases have recognized the manifest injustices of denying an injured person relief for his injury inflicted by a public entity where the gravity of that injury itself so disabled him that he was unable to present the claim within the required statutory period. Such cases have held that where the very injury for which he seeks recovery has prevented him from making a timely filing, or a filing within a reasonable time after he is able to do so is a sufficient compliance within the statute. The theory of these cases is that the public entity is estopped to assert the defense when its negligent act proximately caused the conditions preventing the filing. (See Schulstad v. City County of San Francisco, 74 Cal.App.2d 105 , 107 [ 168 P.2d 68 ], citing cases; also Rand v. Andreatta, 60 Cal.2d 846
[ 36 Cal.Rptr. 846 , 389 P.2d 382 ]; McGranahan v. Rio Vista etc. School Dist., 224 Cal.App.2d 624 , 631 [ 36 Cal.Rptr. 798 ], hear. den.) *Page 495
The record here, however, discloses that appellant recognized that he had a claim and that he wrote numerous letters pertaining to it. The trial court was not impressed with his allegations that the negligence of the hospital employee rendered him incompetent to make the claim. It is concluded that the record does not support the theory of estoppel as in Schulstad v. City County of San Francisco, supra.
Subject to the comments herein, I concur with the majority of the court that the order be affirmed. *Page 496