Majority
Opinion
Petitioner State of California seeks a writ of mandate to compel respondent Superior Court of Sacramento County to vacate its
The minor, Leland Earl Waring (Waring), sustained substantial personal injuries, diagnosed as severe quadriplegia, incomplete below C-4, when he dived into the Sacramento River and broke his neck on July 25, 1976. At this time he was 16 years of age, his date of birth being September 22, 1959. Subsequent to the injury, he was taken by helicopter to the regional spinal injury unit of the Santa Clara Valley Medical Center, where he remained until December 23, 1976. During the first six weeks in the hospital, his treatment consisted of skull traction followed by a halo body jacket fixation. Access to him during his hospital stay by outsiders was extremely limited. Dr. Conal B. Wilmot, the treating physician, stated Waring was “very introspective, quiet and showed a failure of realization of the nature and extent and seriousness of his injuries and the degree of his paralysis. He showed a refusal to plan his future due to apprehension and fear that his paralysis . . . might remain permanent.” Earl Waring, the minor’s father, was of the opinion that his son was mentally and physically incapacitated during his stay in the hospital, that he was unaware of what was going on, not thinking very much, unable to give any assistance as to the cause of his injuries and did not fully understand the nature and extent of his injuries. Delsie Waring, the minor’s mother, related that during the hospitalization her son was very “down,” cried, was unable to cope with the situation, and lacked the capacity to understand what was going on around him. His attorney declared under oath that he was unable to see Waring until September 1, 1976, because no visitors were allowed. At that time Waring had no memory of his accident or any causation; that because of pain and shock, he appeared mentally incapacitated and was unable to assist counsel in any manner. After Waring’s discharge from the hospital, counsel requested a medical report in January 1977, which report was received in April
1 All statutory references herein unless otherwise designated are to the Government Code.
An application to present a late claim pursuant to section 911.4, was filed with the State Board of Control on Waring’s behalf on August 30, 1977. The board returned the claim as not timely filed because more than one year had elapsed from the date of the accident. This has apparently been construed as a denial of the claim by the board. We agree with this construction.
The trial court found that Waring was at all times from July 25, 1976, (date of injury) and still is a minor; that he was physically and mentally incapacitated from July 25, 1976, until December 23, 1976 (date of hospital discharge); that during such period he was without a guardian or conservator of his person within the meaning of sections 911.4 and 946.6 and therefore the one-year limitation period prescribed by section 911.4, subdivision (b) was tolled for the period of such incapacity. Waring was therefore relieved from the necessity of filing a claim and filed his complaint herein.
Petitioner now seeks a writ of mandate to compel the superior court to set aside its order. The documents before us consist only of the papers filed in the Superior Court of Sacramento County.
The following contentions are made in support of mandate:
(1) That Waring’s parents were his guardians at law and their failure to file a claim on his behalf precludes leave for relief to file a late claim;
(2) The evidence is insufficient to show that Waring was incapacitated during the period from July 25, 1976, to December 23, 1976, so as to toll the claim filing period; and
(3) The claim was not filed within a reasonable time.
Petitioner’s basic contention is that the Legislature in using the word “guardian” in section 911.4, subdivision (b) intended such word to include the natural parents of a minor without more. Thus, a failure by a parent to file a claim on behalf of a minor with a public agency within the statutory limitation period would bar the minor’s right to file a late claim. This contention is neither consistent with judicial authority nor supported by considerations of public policy or principles of statutory construction.
Petitioner argues that Waring’s parents, having custody of him, were the natural guardians of his person. Therefore the exemption provided in section 911.4 is inapplicable and the failure of the guardian to file a claim on his behalf precludes relief.
The issue before us has not heretofore been subject to judicial scrutiny. However, the right of parents as natural guardians to forfeit the rights of minors by inaction has been considered. In Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690 [ 36 Cal.Rptr. 321 , 388 P.2d 353 ], our Supreme Court overruled earlier cases (e.g., Haro v. Southern Pacific R.R. Co. (1936) 17 Cal.App.2d 594 , 596 [ 62 P.2d 441 ]; Sears v. Majors (1930) 104 Cal.App. 60 , 62 [ 285 P. 321 ]) to the extent those decisions held a minor’s wrongful death action barred by the parent’s failure to file an action within the statutory limitations period. (60 Cal.2d at pp. 693-694.)
The court stated in Cross: “The running of the statute of limitations against adult heirs does not affect the rights of minor plaintiffs in a wrongful death action.” (60 Cal.2d at p. 693; accord, Arizmendi v. System Leasing Corp. (1971) 15 Cal.App.3d 730 , 736 [ 93 Cal.Rptr. 411 ].) Clearly, the parent does not succeed to the minor’s action through possession of a proprietary right in that action, and the parent’s failure timely to file a claim on behalf of the minor does not preclude the minor’s maintenance of the action if otherwise permitted.
The rationale of Cross has not been limited to wrongful death actions. (See, e.g., Glavich v. Industrial Acc. Com. (1941) 44 Cal.App.2d 517 , 522 [ 112 P.2d 774 ] (overruled to the extent inconsistent on other grounds in Cross); accord, Fisher v. Workers’ Comp. Appeals Bd. (1976) 62 Cal.App.3d 924 , 928-929 [ 133 Cal.Rptr. 471 ]; Aronson v. Bank of America (1941) 42 Cal.App.2d 710 , 720 [ 109 P.2d 1001 ] (opn. incorporates by reference prior decision of court (Cal.App.) [ 65 P.2d 823 , 825-826]
The purpose of the claim filing statute is to give the public agency notice of the claim so that it may make an adequate investigation to determine whether to settle the claim without the expense of litigation. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447 [ 115 Cal.Rptr. 797 , 525 P.2d 701 , 76 A.L.R.3d 1223 ].) Moreover, the claim filing requirement was “not enacted to penalize minors or to deprive them of their rights where adults may have slept on their rights—quite to the contrary the statutes are to protect minors.” (Morrill v. City of Santa Monica (1963) 223 Cal.App.2d 703 , 708 [ 35 Cal.Rptr. 924 ].) “[Preservation of the rights of minors is the particular care of all courts and all tribunals.” (Royal Indem. Co. v. Industrial Acc. Com. (1948) 85 Cal.App.2d 373 , 380 [ 192 P.2d 811 ].) Statutes providing an exception to the claim filing statutes “are designed to prevent the claim filing statutes from serving as a trap for laymen, unlearned in the law, ignorant of the claim requirement . . . .” (Syzemore v. County of Sacramento (1976) 55 Cal.App.3d 517 , 524 [ 127 Cal.Rptr. 741 ].)
Finally, we consider whether the Legislature intended that a minor’s claim be barred by parental failure to file a timely claim. We conclude that the Legislature did not intend a minor’s claim to be barred in this manner. If petitioner’s contention were carried to its logical conclusion, the claim filing period would run from the date of a minor’s injury,
2 Both Glavich and Fisher involved claims for workers’ compensation death benefits and held that a minor who had not complied with the statutory limitation in Labor Code section 5407 for filing a claim, could still assert the claim on the ground the statute had been tolled pursuant to section 5408 providing, inter alia, that “no limitation of time provided by this division shall run against any person under 18 years of age or any incompetent unless and until a guardian or trustee is appointed.” Aronson was an action brought by a minor to recover for conversion of stock shares (applicable tolling statute was Code Civ. Proc., § 352); Gottesman involved an action to recover personal injuries sustained in an automobile collision; Van Buskirk was an action seeking to establish paternity.
The word “guardian” used alone without qualification, by statute contemplates a person other than a parent. “A guardian is a person appointed to take care of the person or property of another.” (Italics added; Prob. Code, § 1400.) In terms of the rights exercised by the guardian, as relevant herein, a guardian can be classified as a “natural guardian,” “a guardian of the person,” and/or “a guardian of property.”
A natural guardian describes the legally recognized duties and responsibilities of a parent for a child. “[T]he legal obligations of parenthood include the duties of support, of care and protection, and of education. As compensation therefor, the law recognizes certain rights in the parent. . . .” (Odell v. Lutz (1947) 78 Cal.App.2d 104 , 106 [ 177 P.2d 628 ].) A parent is by law the natural guardian and entitled to the custody of the person of a minor. (Estate of Yano (1922) 188 Cal. 645 , 648 [ 206 P. 995 ]; In re Hunt (1894) 103 Cal. 355 , 356 [ 37 P. 206 ]; Civ. Code, § 197.)
“The guardianship by nature extends only to the custody of the person of the ward, and not to his property. But to entitle the guardian to manage the property of his ward, he must be duly appointed by some competent public authority. [Citation.] So, guardianship by nature extends only to the person . . . .” (Kendall v. Miller (1858) 9 Cal. 591 , 592 ) “The authority of the parent ceases . . . [u]pon the appointment, by a Court, of a guardian of the person of a child . . . .” (Civ. Code, § 204.)
A minor may not prosecute a claim through the courts without the appointment of a guardian ad litem, the parents having preferential status in applying for such appointment. A parent cannot compromise or settle the claim of a minor without court approval. (Code Civ. Proc., § 372.)
We conclude that had the Legislature intended that a custodial parents’ failure to file a timely claim would bar the minor’s assertion of such claim, it would have used the word “natural” to qualify the word “guardian.”
Petitioner’s contention that the evidence cannot support the trial court’s finding that Waring was incapacitated during the period from July 25, 1976, to December 23, 1976, merits scant attention. It is sufficient to
Nor is petitioner’s contention that there was an unreasonable delay in presenting the claim sustainable. The five months of hospitalization, during which time Waring was mentally incapacitated and without a conservator or guardian of his person, must be deducted in computing the one-year period. Moreover, the claim was filed within a reasonable time after the nature of the injury and the interest of the public entity was discovered. Prejudice by delay has not been claimed by petitioner.
The petition for writ of mandate is denied.
Puglia, P. J. and Regan, J., concurred.
Petitioner’s application for a hearing by the Supreme Court was denied January 17, 1979.
Footnotes
- * Assigned by the Chairperson of the Judicial Council.
Cases cited
- Cross v. Pacific Gas & Electric Co. 60 Cal.2d 690 p. 480
- Haro v. Southern Pacific Railroad 17 Cal.App.2d 594 at 596 p. 480
- Sears v. Majors 104 Cal.App. 60 at 62 p. 480
- Arizmendi v. System Leasing Corp. 15 Cal.App.3d 730 at 736 p. 480
- Glavich v. Industrial Accident Commission 44 Cal.App.2d 517 at 522 p. 480
- Fisher v. Workers' Compensation Appeals Board 62 Cal.App.3d 924 at 928-929 p. 480
- Aronson v. Bank of America National Trust & Savings Ass'n 42 Cal.App.2d 710 at 720 p. 480
- Aronson v. Bank of America National Trust & Savings Ass'n 9 Cal.2d 640 p. 481
- Gottesman v. Simon 169 Cal.App.2d 494 at 509 p. 481
- Buskirk v. Todd 269 Cal.App.2d 680 at 689 p. 481
- Baldwin v. State 6 Cal.3d 424 at 435 p. 481
- Muskopf v. Corning Hospital District 55 Cal.2d 211 at 219 p. 481
- City of San Jose v. Superior Court 12 Cal.3d 447 p. 481
- Morrill v. City of Santa Monica 223 Cal.App.2d 703 at 708 p. 481
- Royal Indemnity Co. v. Industrial Accident Commission 85 Cal.App.2d 373 at 380 p. 481
- Syzemore v. County of Sacramento 55 Cal.App.3d 517 at 524 p. 481
- Odell v. Lutz 78 Cal.App.2d 104 at 106 p. 482
- In re Estate of Yano 188 Cal. 645 at 648 p. 482
- In re Hunt 103 Cal. 355 at 356 p. 482
- Kendall v. Miller 9 Cal. 591 at 592 p. 482