Call v. Los Angeles County General Hospital

In the instant case plaintiff now seeks to have this court reconsider the merits of the ruling on the demurrer as though the appeal were stated to be from the order of dismissal. In so doing he has not misled defendant whose brief, although contending the appeal should be dismissed, strongly argues in support of the ruling on the demurrer. (Cf. Holden v. California Emp. etc. Com., 101 Cal.App.2d 427 , 431 [ 225 P.2d 634 ].) Rule 1 (a), California Rules of Court, provides that the “notice of appeal shall be liberally construed in favor of its sufficiency,” and “courts have often upheld mistakenly stated appeals.” (Channell v. Anthony, 58 Cal.App.3d 290 , 302 [ 129 Cal.Rptr. 704 ].) Being mindful of the policy of the law that cases be tried on their merits (Manning v. Wymer, 273 Cal.App.2d 519 , 528 [ 78 Cal.Rptr. 600 ]), we shall deem the appeal in the instant case to be from the order of dismissal filed August 11, 1976.

Defendant contends that plaintiff could not have appealed from the order of dismissal since his notice of appeal was not filed until 63 days after defendant notified plaintiff of the court’s ruling citing rule 2(a), California Rules of Court. Defendant misreads the rule. Rule 2(a) provides in pertinent part: “Except as otherwise specifically provided by law, notice of appeal shall be filed within 60 days after the date of mailing notice of entry of judgment by the clerk of the court pursuant to section 664.5 of the Code of Civil Procedure, or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, . . .” Defendant’s notice of ruling merely advised plaintiff that the demurrer had been sustained without leave to amend and was not a “written notice of entry of judgment” that would start the 60-day period running contemplated by rule 2(a). Such period did not begin until August 18, 1976, the date of mailing by the clerk of the notice of filing of order of dismissal. Waddingham v. Tubbs, 95 Cal. 249 [ 30 P. 527 ], and Bank of America etc. Assn. v. Superior Court, 115 Cal.App. 454 [ 1 P.2d 1081 ], relied upon by defendant in support of the sufficiency of its notice are not controlling since both were decided prior to the September 16, 1965, amendment of rule 2(a) adding the requirement of giving notice of entry ofjudgment.

Turning to the merits of the case the minute order of August 11, 1976, reflects the reason for sustaining the demurrer to be “[pjlaintiff

Government Code section 911.2 provides as follows: “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than the 100th day after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than one year after the accrual of the cause of action.”

Section 915.2 provides: “If a claim, amendment to a claim or application to a public entity for leave to present.a late claim is presented or sent by mail under this chapter, or if any notice under this chapter is given by mail, the claim, amendment, application or notice shall be mailed in the manner prescribed in this section. The claim, amendment, application or notice must be deposited in the United States post office, or a mailbox, sub-post office, substation, or mail chute, or other like facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid. The claim, amendment, application or notice shall be deemed to have been presented and received at the time of the deposit. Proof of mailing may be made in the manner prescribed by Section 1013a of the Code of Civil Procedure.”

Paraphrased in the simplest of terms the two sections provide a claim must be presented or mailed within 100 days after accrual and if mailed is deemed to have been received at the date of mailing, which date may be proven as provided in Code of Civil Procedure section 1013a. Turning to plaintiff’s third amended complaint, it is noted that plaintiff alleges he first discovered on March 2, 1974, that he sustained injuries resulting from negligent medical treatment by defendants and that a claim was duly mailed by certified mail, return receipt requested, to the County of Los Angeles on June 10, 1974, and received on June 11, 1974, by the executive officer of the board of supervisors, by T. Potter. The receipt for