Opinion
Rehearing Denied June 26, 1967.
Hearing Granted July 26, 1967.
Aaron P. Moss, Van Nuys, and Edward L. Lascher, Ventura, for appellant.
Harry M. Hunt and Victor Rosenblatt, Los Angeles, for respondent.
LILLIE, Associate Justice.
A demurrer to her second amended complaint having been sustained upon the grounds that the purported causes of action were barred by sections 945.4 and 945.6, Government Code, plaintiff appeals from a judgment of dismissal following her failure to file and amended complaint within the prescribed time.
Both statutes relating to actions against public entities, section 945.4 requires the presentation of a claim as a prerequisite to suit and section 945.6 provides that suit must be commenced within six months after the date the claim is acted upon or deemed to have been rejected.
From the complaint as last amended, it appears that plaintiff was injured on May 27, 1963, while riding as a passenger on one of defendant's buses which collided with another bus operated by defendant. The pleading, which is in three counts, contains the necessary allegations of negligence, proximate cause, agency and damages. The first count, however, makes no mention of the presentation of any claim, alleging that defendant failed to file a statement of the facts required by section 53051(a), Government Code, with the Secretary of State (to whom is entrusted the maintenance of a Roster of Public Agencies) and the appropriate county clerk, it is further alleged that by reason of such failure, defendant pursuant to section 945.5, Government Code, was subject to suit "without any necessity of presentation of claim" in the same manner as any private individual or company. Since plaintiff's action was commenced (May 25, 1964) within the one-year period governing such latter litigation and since the asserted non-necessity of filing a claim would therefore be dispositive of the appeal, we first consider the contention that the provisions of sections 53051 and 945.5, Government Code, are here applicable.
By such legislation means were afforded "for identifying the addresses of public entities other than the state, cities, and counties, and the names and addresses of designated officers, for presenting claims and serving process." (Van Alstyne, Cal.Gov.Tort Liability [Cont.Ed.Bar], p. 858.)
Section 945.5 declares that the presentation of a claim shall not be required if no statement is filed with the Secretary of State and appropriate county clerk pursuant to section 53051, supra.
Initially, the allegation that defendant's noncompliance with section 53051 makes operative the provisions of section 945.5 is a pure conclusion of law; true, it must be presumed in a proceeding of this kind that all allegations of the complaint are true, but "it is well settled that a demurrer does not give statements of contentions and conclusions alleged in a complaint the status of admitted facts [citation], nor does it admit the deductions the pleader draws from the facts alleged, nor does it admit allegations of conclusions of law." (Hancock v. Burns, 158 Cal.App.2d 785, 790, 323 P.2d 456, 459.) Section 53051 was not enacted until 1963 (Stats.1963, ch. 1805), becoming effective in September of that year some four months subsequent to the accrual of plaintiff's cause of action. The same is true of section 945.5 which is likewise found in chapter 1805. Neither is made retroactive,
Thus, chapter 1715 contains the additional provision that the subject enactment "applies to all causes of action heretofore or hereafter accruing." (§ 152(a).) It is further therein provided as follows: "(b) Nothing in this act revives or reinstates any cause of action that, on the effective date of this act, is barred either by failure to comply with any applicable statute, charter or ordinance requiring the presentation of a claim or by failure to commence an action thereon within the period prescribed by an applicable statute of limitations.
"(c) Subject to subdivision (b), where a cause of action accrued prior to the effective date of this act and a claim thereon has not been presented prior to the effective date of this act, a claim shall be presented in compliance with this act, and for the purposes of this act such cause of action shall be deemed to have accrued on the effective date of this act.
"(d) Subject to subdivision (b), where a cause of action accrued prior to the effective date of this act and a claim thereon was presented prior to the effective date of this act, the provisions of this act so far as applicable shall apply to such claim; and, if such claim has not been acted upon by the board prior to the effective date of this act, such claim shall be deemed to have been presented on the effective date of this act." (See Note to § 900, Gov.Code.)
It is defendant's position that the present proceeding is governed by subdivision (d) above which became effective September 20, 1963. Specifically, reference being inferentially made to a previous pleading superseded by that last considered below, defendant states that a claim was previously made on July 5, 1963; not having been acted upon by defendant, it was deemed to have been presented on September 20, 1963. Continuing, defendant was then given forty-five days to act on said claim (Gov.Code, § 912.4); no action having been taken, the claim was deemed denied on November 4, 1963, and the six months' statute of limitations (Gov.Code, § 945.6) then commenced to run, expiring on May 4, 1964. The present action was therefore belatedly instituted on May 25, 1964. The above reasoning is erroneous. It is settled that an amended pleading supersedes those before it; hence, reference cannot be made to superseded complaints either to explain, vary, contradict or weaken the allegations in the last complaint. (39 Cal.Jur.2d "Plead "Pleading" § 262, pp. 384-385.) Too, in light of a plaintiff's acknowledged right to plead inconsistent counts, which inconsistencies cannot be reached by demurrer, each count stands on its own allegations unaffected by those contained in other counts. (Penziner v. West American Finance Co., 133 Cal.App. 578, 582, 24 P.2d 501.) This first count, therefore, must stand or fall on the conclusional averment that defendant was suable under the same procedural conditions governing persons other than public entities.
As a matter of fact, there is no reference in the two remaining counts of the pleading as last amended to the July 5, 1963, date. Count Two alleges the presentation of a claim "within the time provided by law" and subsequently makes mention of an "amended claim" filed on March 4, 1964, with an agent of defendant for a portion of her damages. Count Three incorporates the first of the above allegations by reference.
Filed on December 21, 1965, the first count of the last amended complaint alleged that for a period in excess of 90 days following the effective date of section 53051(a), said period also being in excess of 90 days after the commencement of its legal existence, defendant failed to file with the county clerk of Los Angeles County a statement of facts as For reasons already noted, we are not concerned with the asserted filing by plaintiff of any claim within the time permitted by law. The particular count in question being silent with respect thereto, the proceeding is governed by subdivision (c) of section 152, chapter 1715 of Statutes of 1963, and not, as defendant contends, by subdivision (d) thereof which pertains to situations where a claim has in fact been presented. Pursuant thereto, plaintiff's cause of action was deemed to have accrued on September 20, 1963; a claim thereon not having been presented prior to the effective date of such legislation, it is provided by subdivision (c) that "a claim shall be presented in compliance with this act * * *." This latter subdivision has already been interpreted in Manquero v. Turlock etc. School Dist., 227 Cal.App.2d 131, 38 Cal.Rptr. 470, and, quite recently, by the Supreme Court in Tammen v. County of San Diego (April 26, 1967), 66 Cal.2d 468, ---, 58 Cal.Rptr. 249, 426 P.2d 753. In the latter case the accident occurred in February of 1963 and no claim was filed until January 8, 1964. After quoting the pertinent parts of section 152, the court stated: "The present proceeding is thus governed by the 1963 act, whereby plaintiffs' causes of action are deemed to have accrued on September 20, 1963 (subd. (c) above). The claim was not barred because at the time of Dr. Tammen's death on February 18, 1963, the late claims procedure of former section 716 was open to plaintiffs. They had not presented their claim within 100 days, but they had a right to petition the superior court for leave to file a late claim within a reasonable time not to exceed one year after the expiration of 100 days from February 18, 1963. It might have been determined by the court that the petition should have been denied, whether for failure to show physical or mental incapacity or because the county would be prejudiced, but the right to present the claim had not been barred, nor had the statute of limitations run." In the present Lee v. Hensley,
Schaefer v. Berinstein,Under the circumstances, therefore, it is useless for defendant to argue that we should ascertain the legislative intent inherent in the instant legislation which was enacted, says defendant, to provide a means for identifying the addresses of public entities other than states, counties and cities, and the names and addresses of persons designated by them for presentation of claims and service of process. In this latter connection, it is similarly unavailing for defendant to discuss the legislative intent which resulted in the 1965 enactment of section 946.4 repealing section 945.5. Defendant concedes that section 945.5 was not made retroactive; no retroactivity can therefore be imputed to section 946.4, as a repealing statute, and which took effect more than two years after plaintiff sustained her injuries.
Limiting our disposition of the present appeal to the contentions above discussed, pro and con, and as it relates to the first count only of the complaint as last amended, we come to the conclusion that under the pleaded facts it was erroneous to sustain the general demurrer to the complaint in its entirety. "The general well settled rule is that if any count of a multi-count complaint states a cause of action, it is error to sustain a demurrer to the complaint as a whole. Each count stands or falls upon its own allegations." (Western Title Ins. etc. Co. v. Bartolacelli, 124 Cal.App.2d 690, 694, 269 P.2d 165, 168.) In view of the above determination, we do not reach the trial court's ruling respecting the other two counts which allege the filing of an amended claim and an estoppel on defendant's part to challenge the presentation of such amended demand.
The judgment is reversed.
WOOD, P.J., and FOURT, J., concur.