Hochfelder v. County of Los Angeles

Plaintiffs take this appeal from a judgment of dismissal entered upon demurrer sustained without leave to amend.

Defendant’s demurrer was based upon general and special grounds, as well as upon the more specific grounds that plaintiffs’ action was barred by certain designated statutes of limitation. It is conceded by both sides that the sole question to be decided is whether or not this action is barred by the provisions of section 342 of the Code of Civil Procedure and sections 29714 and 29715 of the Government Code.

Section 342 of the Code of Civil Procedure reads as follows: “Actions on claims against a county, which have been rejected by the board of supervisors, must be commenced within six months after the first rejection thereof by such board.” Section 29715 of the Government Code states: “A claimant dissatisfied with the rejection of his claim or with the amount allowed him may sue the county on the claim at any time within six months after the final action of the board.” The chronology of events as disclosed by the record is that the claim, which was filed on May 16, 1952, was rejected by the board on April 7, 1953; the present complaint was filed on May 5, 1953. There would thus appear to be compliance with the requirement of section 342, that an action against the county upon a claim rejected by the Board of Supervisors, “must be commenced within six months after the first rejection thereof by such board.” Similarly, it would seem that the provision of Government Code, section 29715, limiting the time for institution of a suit upon a rejected claim, to “within six months after the final action of the board” was likewise satisfied. (Italics added.)

In support of the trial court’s judgment of dismissal, the

Hence, it is argued by the county that the formal rejection of the claim by the board on April 7, 1953, was, in effect, a nugatory act, since the claim was already barred; and the present action, which was not commenced until May 5, 1953, falls under the ban of the same statutes of limitations. We are unable to agree with these contentions.

It may be of some benefit to scan briefly the legislative history of the provisions here under scrutiny. Sections 29714 and 29715 of the Government Code appear to have had their prototype in the County Government Act of 1897 (Stats. 1897, ch. 277, p. 471), at which time they were coalesced as an integrated entity in section 43 thereof. In 1907, the precise language of section 43 was reenacted as section 4078 of the Political Code (Stats. 1907, ch. 282, § 1, p. 381). So far as is here pertinent, section 4078 provided: “If the board refuse or neglect to allow or reject a claim or demand for 90 days after the same has been filed with the clerk, such refusal or neglect may, at the option of the claimant, he deemed equivalent to a final action and rejection on the ninetieth day, and a claimant dissatisfied with the rejection of his claim or demand, or with the amount allowed him on his account, may sue the county therefor at any time within six months after the final action of the board ...” (Italics added.)

By way of orientation, it is to be observed that sections 29714 and 29715 are contained in title 3, div. 3, ch. 4 of the Government Code, which relates to claims against a county. Article 1 of chapter 4, covering sections 29700 to 29721, embraces the filing and approval of claims and prescribes in detail the manner and procedure by which specified types of claims must be presented to the board before a suit may be initiated by a claimant. Section 29704 states in part: “Any claim against the county . . . shall be presented to the board before any suit may be brought thereon. No suit shall be brought on any claim until it has been rejected in whole or in part.” Section 29713, which immediately precedes the two sections here under review, provides in part: “If the board finds any claim is. not a proper county charge, it shall be rejected. The rejection shall be plainly endorsed on the claim.” While section 29704, supra, provides that no suit shall be brought on any claim against a county until such claim has been presented as therein provided and rejected in whole or in part and while section 29713, supra, enjoins the board to reject all improper claims and to place thereon a plain endorsement of such rejection, it is significant that nowhere is there placed upon the board any specific limitation of time within which it must act in either allowing or rejecting the claim.

It is a fundamental rule of statutory construction that a provision under consideration by the courts should, wherever possible, be given such construction as will reasonably achieve its object .and purpose within the context of the

Since one of the principal objectives of this species of legislation is to facilitate adjustment of claims without suit and assure adequate time for consideration and investigation of the particulars of the alleged claim by the public authority, the Legislature has seen fit to abstain from fixing any period of time within which such claims must be allowed or rejected. This was undoubtedly a recognition of the fact that while simple claims could be expeditiously processed, other claims involving complex questions of law or fact or entailing comprehensive investigation or extensive negotiation would require more prolonged attention. It is presumed, of course, that official duty will be diligently pursued and that claims would not be held up or postponed beyond the time reasonably necessary to pass upon them. But this may not in every instance be so. Thus, the object and purpose of section 29714 of the Government Code (and that of its precursor, section 4078 of the Political Code) was to obviate a situation in which the board, by its own nonaction, could defer indefinitely a claimant’s right to bring an action. The clearly intended import of that section is that a claimant may treat the failure of the board to act as tantamount to a final action

It is thus apparent from the choice of language used in section 29714, its legislative history, its place in the statutory framework and the purpose to be accomplished, that it does not operate as an automatic rejection after 90 days have passed without positive action on the claim by the board. Had the Legislature intended a rejection to result by operation of law on the ninetieth day, it could scarcely have used language more circuitous, equivocal and diffuse- to effectuate its purpose. But “the draftsmen of legislation as a rule employ language notable for its precise and definitive character . . . ” (Estate of Burnison, 33 Cal.2d 638 , 641 [ 204 P.2d 330 ].) Section 29714 does not state that the refusal or neglect of the board shall be treated as final action and rejection on the ninetieth day. What it does state, however, is that the claimant “may treat” the board’s refusal or neglect as final action. Section 14 of the Government Code expressly declares that the word “shall” is mandatory and that “may” is permissive. It is true, of course, that the word “may” in a statute may be interpreted in a mandatory sense when such construction is necessary to give effect to the legislative intent (Garrison v. Rourke, 32 Cal.2d 430 , 437 [ 196 P.2d 884 ]), or where the provision or the context so requires (Gov. Code, § 5). But the legislative purpose in the present case can best be realized by construing the words “the claimant may treat the refusal or neglect as final action on the ninetieth day” in its ordinary signification of conferring permission or discretion upon the claimant to deem the claim rejected if he so chooses. It cannot be served by giving these words an imperative construction, so that a claimant “must” treat the claim as rejected on the ninetieth day. Such a construction would engender some of the very evils this body of legislation was designed to suppress. It would not facilitate the adjustment of claims without suit, where a

But clearly no such results were inherent in, or contemplated by, the simple and direct language of section 29714, which under the special circumstances there prescribed, permits a claimant to avail himself of judicial remedies in advance of ultimate action by the board, but does not obligate him to do so. *

There is little merit in the suggestion that unless the claim is deemed rejected on the ninetieth day after filing by operation of law, a claimant would be in a position to delay indefinitely the running of the statute of limitations. All that is required to start the running of the statute is for the board to pass upon the claim, as it was intended by the Legislature that it should do. The board has full control and mastery over the course of events. On the other hand, it is conceivable that a claimant may be thwarted by the neglect or refusal of the board to take any action on the claim he has presented. The law has provided the claimant with a remedy against the possible hardship of such inaction. He may, if he so elects, exercise his right to proceed under section 29714 to prosecute his claim in the courts by treating the board’s inaction as a final rejection on the ninetieth day.

The county cites State Department of Public Health v. Imperial County, 67 Cal.App.2d 244 [ 153 P.2d 957 ]. That case is not germane. It is neither determinative of the issue here presented nor is it authority for the county’s bald

The judgment is reversed with directions to the trial court to overrule the demurrer and to allow the defendant a reasonable time within which to file its answer.

Moore, P. J., and McComb, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied August 26, 1954.