139 Cal. App. 595 | Cal. Ct. App. | 1934
Plaintiff recovered judgment against the City of Los Angeles for damages to his property resulting from a street improvement. The trial court found that the work was fully and finally completed on or about September 21, 1927; that plaintiff made demand upon defendant on October 10, 1927, for payment of damages thereby sustained “in the form and manner provided by the city charter” and that the claim was rejected March 6, 192'9, whereupon plaintiff brought suit. The sole question to be determined on this appeal is whether plaintiff made his demand in the manner and within the time as required by the charter of the City of Los Angeles so as to entitle him to institute this action.
Appellant relies upon Spencer v. City of Los Angeles, 180 Cal. 103 [179 Pac. 163], which was an action brought by the city upon certain invalid assessments for a street opening. The assessments in that case had been paid by plaintiff to the board of public works as “collection agent” for the city and, as a matter incidental to the determination of other issues in that case, the court held that the demand required by the charter before plaintiff could bring suit was properly presented to the same board which had collected the money. By liaving such claims presented first to the board of public works the correctness of the amount which plaintiff claimed he paid could in this manner be checked by the same “collection agent” who had received the money in the first instance. The view expressed in the cited case was not inconsistent with the charter provisions
Certain other cases in which similar questions have been considered on appeal have been brought to our attention, but the principles upon which they were decided are readily distinguishable from the instant case. Continental Ins. Co. v. City of Los Angeles, 92 Cal. App. 585 [268 Pac. 920], cited by appellant, was an action to recover the amount of insurance paid by plaintiff for loss by fire alleged to have been caused by negligent construction and maintenance of electric wires in the City of Los Angeles, and the presentation of a demand to the board of public service commissioners was held to be a necessary prerequisite to a suit against either the city or the board. Any liability in that case was incurred by the act or omission of the board of public service commissioners or its servants and not by the city council, and that board was obviously the proper body to which such a claim should have been submitted for consideration before suit was instituted. In Beeson v. City of Los Angeles, 115 Cal. App. 122 [300 Pac. 993], a ten year old boy was drowned in a water hole while playing in a storm drain, and his mother brought action for damages for his death. It was held that the claim should have been presented to the board of public works and not to the city council. Any liability in that case was incurred by reason of the negligent act or omission of the board in the performance of its duty of maintaining its own sewers and drains, and it could not have beep incurred by any act of the city
Appellant further contends that the demand of plaintiff was not filed within six months following the occurrence from which the damages arose because respondent’s property abutted on a portion of the improvement which was completed and accepted in October, 192'6, a year before his claim was filed. As above stated, the trial court found that the street improvement work provided for by the ordinance in this case was fully and finally completed on or about the twenty-first day of September, 1927, when it was fully and finally accepted by the board of public works of the City of Los Angeles, and the demand was filed October 10, 1927. No authority is cited by appellant for its suggestion that when part of the improvement had been completed and approved the “occurrence from which the damages arose ’ ’ will be sufficiently complete to permit a claimant to file his demand. The contrary would seem to be true. The city council in this case treated the improvement as an entirety and included’it in a single proceeding, as it had a right to do (Remillard v. Blake etc. Co., 169 Cal. 277 [146 Pac. 634, Ann. Cas. 1916D, 451]), and a citizen affected thereby would reasonably be expected, if not required, to adopt the same course. The board of public works, acting for the city, did not consider the work complete until it had so determined for itself and had accepted it, and plaintiff, as a citizen whose right to submit a claim for damages did not arise until the work resulting in the damage had been done, would properly be expected, if not required, to await
Plaintiff’s claim was presented within the time required by the charter and to the proper body.
The judgment is affirmed.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 30, 1934.