Opinion
For Opinion on Hearing see 68 Cal.Rptr. 297, 4407, 497.
Valian & Tardiff and Herbert E. Selwyn, Los Angeles, for plaintiff and appellant.
Harry M. Hunt and Glenn W. Hoiby, Los Angeles, for defendant and respondent.
Retired Presiding Justice, Court of Appeal, sitting under assignment by Chairman of the Judicial Council.
246 A.C.A. 78.
This is an appeal from a judgment dismissing plaintiff's action.
Plaintiff was involved in a traffic accident on July 16, 1962, while riding in an automobile that collided with a bus operated by defendant.
On October 18, 1962, plaintiff, a minor, filed his claim for damages, through his parents and attorney, on account of said accident. No action was taken on said claim by defendant. Subsequently, the California Tort Claims Act was passed, effective September 20, 1963. Plaintiff's claim, pursuant to this act and the statute of limitations contained therein, was deemed denied on November 4, 1963. Defendant demurred on the ground that plaintiff did not file his action within six months after his claim was denied as required by section 945.6 of the Government Code. The court sustained defendant's position, struck the amended complaint, and dismissed the action. Hence, this appeal. Plaintiff contends that the statute of limitations does not begin to run until his disability of minority terminated.
Historically, the state and its agencies have been immune from tort liability or claims for personal injury. This historical rule has been gradually modified, so that at the present time, claims and suits may be brought against state and public agencies. However, this is permitted by consent, express or implied, of the state. (See Gould v. Executive Power of the State, 112 Cal.App.2d 890, 247 P.2d 424.) And, whenever a right of action against the state or any of its political subdivisions is created by statute, such right may be circumscribed by any condition that the legislature may see fit to impose. (Artukovich v. Astendorf, 21 Cal.2d 329, 131 P.2d 831.)
The Motor Vehicle Code, section 17001, set aside the sovereign immunity of the state and established the statutory tort liability of public agencies, but established such liability only for death, personal injury, or property damage caused by negligent operation of a motor vehicle by an officer, agent, or employee of the public agency who was operating said vehicle in the course and scope of his employment. Thus, the statute is limited and restrictive rather than a general broad and all inclusive type of statute. It should be noted further that Vehicle Code section 17001 only permits claims or suit against public agencies; it does not in any was set forth the requirements to be fulfilled, the conditions precedent to the bringing of such claim or suit, nor any limitations thereon. Therefore, other statutes must be examined to ascertain the procedure to be followed in bringing suit against a public agency.
This statute is not a part of the California Tort Claims Act.
Government Code section 905 requires, in part, that there shall be presented in accordance with chapter 1 (commencing with section 900) and chapter 2 (commencing with section 910) of this part, all claims for money or damages against local public entities. There is no claim that plaintiff failed to comply with the requirement that a claim be filed pursuant to Government Code section 945.4.
We come now to section 945.6. Subdivision (a) of that section provided that any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with chapter 1 (commencing with section 900) and chapter 2 (commencing with section 910) of part 3 of this division must be commenced within six months after the date the claim is acted upon by the board, or is deemed to have been rejected by the board, in accordance with chapters 1 and 2 of part 3 of this division. Subdivision (b) of this section sets forth the only exception to this rule regarding the time within which such action must be brought, Subdivision (b) provides: 'When a person is unable to commence a suit on a cause of action described in subdivision (a) within the time prescribed in that subdivision because he has been sentenced to imprisonment in a state prison, the time limited for the commencement of such suit is extended to six months after the date that the civil right to commence such action is restored to such person, except that the time shall not be extended if the public entity establishes that the plaintiff failed to make a reasonable effort to commence the suit, or to obtain a restoration of his civil right to do so, before the expiration of time prescribed in subdivision (a).' The exception of subdivision (b) is clear and unambiguous, and there appears therein no other exception or clause by which other exceptions may be inferred. In such a case, these principles apply: 'That when the language of a statute is clear and unambiguous it does not permit judicial interpretation or construction; and that, when the statute itself specifies its exceptions, no other may be added under the guise of judicial construction.' (In re De Neef, 42 Cal.App.2d 691, 694, 109 P.2d 741, 742.) 'Under the familiar maxim of expressio unius est exclusio alterius it is well settled that, when a statute expresses certain exceptions to a general rule, other exceptions are necessarily excluded.' (Collins v. City & Co. of S. F., 112 Cal.App.2d 719, 731, 247 P.2d 362, 370.)
Thus, we have a situation where the statute (Govt. Code, § 945.6) has its own statute of limitations within which time suit must be filed, that is, six months and it contains only one exception that will extend this period, viz, imprisonment in a state prison. Here the plaintiff did not file suit within the six month period after his claim was deemed rejected, and he does not come within the exception for he has not lost his civil rights as a result of a felony conviction.
Professor Van Alstyne discusses this problem in his book 'California Government Tort Liability, ' chapter 9, Actions Against Public Entities, section 9.5, Statute of Limitations, pages 415-417:
Continuing Education of the Bar, California Practice Book No. 24 (1964).
'Following the required rejection of a claim, claimant is required, with one exception, to commence his action against the public entity within six months. Govt. C § 945.6(a). The exception relates to persons who have lost their civil right to sue, as a consequence of a felony conviction. Govt C § 945.6(b). * * *
'The six-month period is a special statute of limitations; if not complied with, it bars subsequent enforcement of the cause of action * * *.
'* * *
'The 1963 act makes one express exception to the limitations period. When the claimant 'is unable to commence a suit' on the rejected claim within the six-month period 'because he has been sentenced to imprisonment in a state prison,' action must be commenced within six months after his civil right to sue has been restored. Govt C § 945.6 (b). * * *
'In light of this one exception, it appears by implication that other bases for tolling the six-month limitations period * * * (minority; incompetency; defendant's absence from the state; death of defendant) were intended to be inapplicable. The legislative intent that the 'general statutes of limitations' would have no application was, in fact, explicit. * * * For some general tolling provisions, such as death or absence from the state, factual circumstances would never occur in actions against public entities; while for other grounds such as minority ore incompetency, a suit through a guardian ad litem is available. * * *'
In further amplification of its objective and purpose in drafting section 945.6(b), the Law Revision Commission said in Recommendation 1014:
'* * * In order to promote uniformity and avoid undue delay in a suit against a public entity, a relatively short period should be allowed for commencing suit regardless of the nature of the claim. The six-month period now provided in the State claims statute is recommended. The general statutes of limitation would thus have no application to actions against public entities upon causes of action for which claims are required to be filed.' (Van Alstyne, California Government Tort Liability, p. 778.)
Plaintiff is attempting to have the disabilities mentioned in Code of Civil Procedure, section 352, viz, minority, insanity, imprisonment and marriage, read into Government Code section 945.6 so that the time he is under disability by reason of Since Government Code section 945.6 contains only one exception, viz, imprisonment in a state prison, which tolls th six months requirement within which the action must he filed, it is clear from the foregoing analysis and authorities that the disability of minority contained in section 352, Code of Civil Procedure, is not available to plaintiff. (See PACIFIC INDEM. CO. V. SUPERIOR CT., 246 CAL.APP.2D-- , 54 CAL.RPTR. 470;* FROST V. STATE OF CALIF., 247 CAL.APP.2D-- , 55 CAL.RPTR. 652.)
247 A.C.A. 378.
In this connection it should be pointed out that title 2, chapter 1 of Code of Civil Procedure, section 312, provides: 'Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.' Section 352, Code of Civil Procedure, appears in chapter 4 of title 2 of said code, which chapter is captioned 'General Provisions as to the Time of Commencing Actions.' It is thus apparent that an action against a public entity is such a special case as referred to in section 312, Code of Civil Procedure, and wherein 'a different limitation is prescribed by statute.'
Plaintiff cites Hennessy v. County of San Bernardino, 47 Cal.App.2d 183, 117 P.2d 745, which relies in part on section 342, Code of Civil Procedure, as it than read (1941). That section has since been amended so that it too (like section 312, Code of Civil Procedure) refers to other statutes. Specifically, section 342 refers to section 945.6, Government Code, as stating the applicable rule and period of limitation within which an action against a public entity 'must be commenced.' It is thus apparent that by reason of the amendment of section 342, Code of Civil Procedure, and the fact that section 945.6, Government Code, contains only one ground (imprisonment) for tolling the statute, the Hennessy case is not here applicable.
The judgment is affirmed.
JEFFERSON, Acting P. J., and KINGSLEY, J., concur.