Metropolitan News-Enterprise


Wednesday, October 10, 2012


Page 1


C.A. Takes Liberal View on Pleading Claims Act Compliance

Allegation That Plaintiff Supplied Omitted Information to Defendant’s Representative Held Enough to Survive Demurrer




A plaintiff’s allegation that she amended her tort claim by advising the defendant’s authorized representative of the occurrence date, after omitting it from her original claim, was sufficient to plead compliance with the government claims statute, the Fifth District Court of Appeal has ruled.

The justices Friday reinstated the action by Maria Dolores Jimenez Perez against the Golden Empire Transit District, which provides bus service in and around Bakersfield. The panel said Kern Superior Court Judge William D. Palmer erred in sustaining the district’s demurrer.

Perez claims that she was injured on July 15, 2009, while exiting a district bus, and that the injury was caused by the driver’s negligence. In her amended complaint, she alleged that she spoke to a district representative the day of the accident, and filed a timely claim on the following Jan. 15.

District Representative

On Jan. 19, she said, she received a phone call from a district representative, informing her that the date of the accident wasn’t on the claim form. Perez alleged that she “subsequently provided the date of the incident to said representative.”

The district, which rejected the claim, demurred to the complaint on the ground that failure to allege the occurrence date rendered the claim insufficient as a matter of law. The trial judge agreed.

But Justice Donald Franson Jr., writing for the court, said the demurrer should have been overruled.

“Under the rules governing appellate review of a general demurrer, we cannot interpret plaintiff’s allegations that she subsequently provided the date to mean that she failed to amend her claim,” the jurist wrote.  “Also, we conclude her allegations regarding compliance with the claim requirement are sufficient under Code of Civil Procedure section 459, which addresses pleading performance with statutory conditions.”

Under Sec. 459, Franson explained, the plaintiff’s general allegation that she complied with the presentation requirement was sufficient to survive demurrer, as long as it did not conflict with a more specific allegation of the complaint.

Right to Amend

Government Code Sec. 910.8, the justice noted, requires the entity to notify the claimant in writing of any deficiency in the claim within 20 days, and to allow the claimant at least 15 days to amend the claim following any such notice. Sec. 910.6 allows a claim to be amended “at any time before the expiration of” the six-month or one-year period in which a claim must be presented “or before final action thereon is taken by the board, whichever is later.”

Franson reasoned:

“We conclude that it is reasonable to interpret plaintiff’s allegations to mean that she provided the date of the incident to Transit District’s representative by amending the claim in accordance with the requirements for amendment set forth in section 910.6.  This interpretation renders the last sentence of paragraph 18 internally consistent because that sentence states that she provided the date, ‘thus complying with the government tort claim statute.’  The contrary interpretation—that plaintiff provided the date in a manner that did not amend her claim—contradicts her general allegation that she provided the date and thus complied with the Government Claims Act. We recognize that paragraph 18 is reasonably susceptible to either interpretation, but conclude that the pleading must be liberally construed with inferences drawn that are favorable to the plaintiff.”

Whether the plaintiff can prove that she amended the claim in a manner consistent with the statute, Franson said in a footnote, “will be an altogether different matter.” 

The case is Perez v. Golden Empire Transit District, 12 S.O.S. 5033.


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