JERRY ARTUKOVICH, JR., a Minor, etc., Appellant, v. FRED O. ASTENDORF et al., Defendants; COUNTY OF LOS ANGELES, Respondent, 21 Cal. 2d 329

SPENCE, J. pro tern. — Plaintiff appeals from a judgment of dismissal entered after the trial court sustained defendants’ demurrers to the complaint as amended without further leave to amend.

The complaint, which was filed ón May 17, 1940, alleged that plaintiff, a minor of the age of 16 years and a ward of the juvenile court, was being transported on June 25, 1939, to a forest camp in a county truck driven by defendant Astendorf, a deputy probation officer and an employee of the defendant county of Los Angeles, and that while being so transported said Astendorf so negligently operated said truck as to cause the same to overturn and to injure plaintiff.

Said complaint was thereafter amended by stipulation on February 6, 1941, by adding the following allegation: “That no claim for the damages sought in this complaint has been presented or filed with the defendant County of Los Angeles, or any clerk or auditor thereof, under California Political Code, Sections 4074-79 inclusive, or otherwise.” No question is raised on this appeal concerning the propriety of the order and judgment of the trial court with respect to defendant Astendorf.

Plaintiff contends, however, that the trial court erred in sustaining the demurrer of the defendant county of Los Angeles and in entering the judgment of dismissal in favor of said defendant. More specifically, the contention is that the provisions of

section 4075 of the Political Code, which require the presentation to the board of supervisors of any claim against a county before any action may be brought thereon, do not apply to minors and that plaintiff was therefore not required to plead such presentation. While the precise question presented by plaintiff’s contention does not appear to have been previously raised and decided, there are several cases in this jurisdiction either holding or assuming that other statutory provisions, requiring the presentation of claims, do apply to minors. (Phillips v.

County of Los Angeles, 140 Cal.App. 78 [35 P.2d 187]; Myers v. Hopland U. E. School Dist., 6 Cal.App.2d 590 [44 P.2d 654]; Carpenter v. Eureka Casualty Co., 14 Cal.App.2d 533 [58 P.2d 682] ; Wicklund v. Plymouth Elem. School Dist., 37 Cal.App.2d 252 [99 P.2d 314]; Kline v. San Francisco U. School Dist., 40 Cal.App.2d 174 [104 P.2d 661, 105 P.2d 362].) In summarizing the rule announced in the above mentioned authorities and others, this court recently said in Redlands High School Dist. v.

Superior Court, 20 Cal.2d 348 [125 P.2d 490], at page 374, “Cases have established that the liability of municipalities, counties and school districts for the negligent acts of their officers and employees is derived solely from statutory provisions in this state.

Any plaintiff, therefore, must fulfill the mandatory requirement that a verified claim be filed as a prerequisite to maintaining a suit under the statute and failure to file such a claim is fatal to the cause of action.” The underlying principles upon which the authorities are based are (1) that neither the state nor any of its political subdivisions may be sued in the absence of specific statutory permission; (2) that where a right of action against the state or any of its political subdivisions is created by statute, such right may be circumscribed by any conditions that the Legislature may see fit to impose; and (3) that when the Legislature enacts a mandatory provision requiring in general terms that all claims must be presented before any action may be brought thereon, compliance with such condition is an indispensable prerequisite to the bringing of any such action by any person, regardless of his age or his physical or mental condition. (See Johnson v.

City of Glendale, 12 Cal.App.2d 389 [55 P.2d 580].) The conclusion reached in the above mentioned decisions is in line with the great weight of authority in other jurisdictions. (Baker v. Town of Manitou, 277 F. 232; City of Birmingham v. Weston, 233 Ala. 563 [172 So. 643, 109 A.L.R. 970] ; Peoples v. City of Valparaiso, 178 Ind. 673 [100 N.E. 70]; Palmer v. City of Cedar Rapids, 165 Iowa 599 [146 N.W. 827, Ann.Cas. 1916E, 558]; Dechant v. City of Hays, 112 Kan. 729 [212 P. 682] ; Thomas v. City of Coffeyville, 145 Kan. 588 [66 P.2d 600]; Madden v. City of Springfield, 131 Mass. 441; Davidson v.

City of Muskegon, 111 Mich. 454 [69 N.W. 670]; Szroka v. N. W. Bell Tel. Co., 171 Minn 57 [213 N.W. 557, 59 A.L.R. 404]; Schmidt v. City of Fremont, 70 Neb. 577 [97 N.W. 830]; Hurley v. Town of Bingham, 63 Utah 589 [228 P. 213]; Robinson v. City of Memphis, 171 Tenn. 471 [105 S.W.2d 101].) The principles set forth in these authorities are well established and clearly indicate that plaintiff’s contentions cannot be sustained.

The decision herein might therefore be rested upon the authorities cited without further comment were it not for the fact that plaintiff apparently argues (1) that the statutes under consideration here are different from the. statutes involved in the cited cases and (2) that, in any event, the above mentioned decisions of the District Courts of Appeal “establish a rule entirely inconsistent with the public policy of this state.” With respect to statutes under consideration here, plaintiff calls our attention to the fact that the right which he seeks to enforce was created by

section 400 of the Vehicle Code and that “no claim is required specifically by the statute establishing liability.” Said section, however, permits an action to be brought against a county only “in the manner directed by law.” The “manner directed by law” is found in

section 4075 of the Political Code which was enacted in 1907 and long prior to the enactment of

section 400 of the Vehicle Code, or the enactment of its forerunner,

section 171414 of the Civil Code. Plaintiff further argues that “the act requiring the filing of a claim does not specifically apply to minors, ’ ’ citing only

section 4075 as authority for such statement. It may be conceded that the word “minors” is not found in the

section but, on the other hand, there is nothing in the

section exempting minors from the requirements thereof. The first paragraph of

section 4075 contains a limitation on the power of the board of supervisors and provides in part, “The board of supervisors must not hear or consider any claim . . . nor shall the board credit or allow any claim . . . unless the same ... is presented and filed . . . within a year after . . . the claim accrued.” The second paragraph of said

section provides “All claims against any county . . . shall be presented to the board of supervisors as herein provided before any suit may be brought on any such claim, and no suit shall be brought on any such claim until said claim has been presented as herein provided ...” The

section expressly requires the presentation of “any” and “all” claims before “any suit” may be brought thereon. It contains no language which justifies a conclusion that these broad terms were intended to be subject to any limitation or exception and, under the authorities above cited, no exception in favor of minors or persons laboring under other disabilities may be written into said

section under the guise of judicial

interpretation. With respect to the “public policy of this state,” we find nothing in the above-mentioned decisions of the District Courts of Appeal which is inconsistent therewith. It is true that it has always been the policy of this state and of other states to place minors in a favored class for certain purposes. But as pointed out in Phillips v.

County of Los Angeles, 140 Cal.App. 78, 79 [35 P.2d 187], “The solicitude of the law in protecting a minor in his contractual and other relationships is limited and not general in its application.” For example, the law does not relieve a minor from liability for his civil wrongs (Civ. Code, §41) nor does it make him immune from punishment for his criminal acts (Pen. Code, § 26). The fixing of the age of majority is itself a subject which is covered by statute and practically every special consideration which has been extended to those who have not attained such statutory age is likewise covered by statute.

Thus there are statutory provisions extending special consideration to minors with respect to the time within which certain proceedings must be commenced (Code Civ. Proc., §§ 328, 352, 1272; Prob. Code, §§ 384, 931), but the special consideration extended is expressly limited to the proceedings therein mentioned. We find no similar provisions extending special consideration to minors in statutes prescribing the time within which claims must be filed or the time within which proceedings must be commenced upon rejected claims either in probate proceedings (Prob.

Code, §§ 700, 714, 716) or in liquidation proceedings (Leering’s Gen. Laws, Act 652, § 136; Leering’s Gen. Laws, Act 986, §§ 13.16; Ins. Code, §§ 1021-1032); and it was held in Carpenter v. Eureka Cas. Co., 14 Cal.App.2d 533 [58 P.2d 682], that where such statutes make no exception in favor of minors, none may be implied.

There are other statutes which might be mentioned but sufficient has been said to show that the Legislature has apparently balanced the questions of public policy involved in each instance and has determined whether the policy of extending special consideration to minors outweighed some other policy. If it did so believe, an exception was written into the statute in favor of minors, but if it did not so believe, no such exception was so written into the statute.

So far as our search has disclosed, the Legislature has made no exception in favor of minors in any claims statute enacted at any time during the entire history of our state. Furthermore, whenever the Legislature has defined the word “person” in any claims statute, it has made it entirely clear that it was the legislative policy to make such statutes apply to minors.

Thus in the statute requiring the presentation within 90 days of claims against school districts and other public bodies for injuries resulting from defective public property, the word “person” has been defined “to include any pupil attending the public schools.” (Stats. 1931, p, 2475; Leering’s Gen. Laws, Act 5149, § 5; see also Stats. 1931, p. 2476; Leering’s Gen. Laws, Act 5150, §4.) It is a matter of common knowledge that the vast majority of pupils attending the public schools are minors.

It therefore appears that the public policy of this state, as expressed by the Legislature in claims statutes, is contrary to that claimed by plaintiff and it further appears that the above mentioned decisions of the Listrict Courts of Appeal are in harmony with the public policy so expressed. It may be argued that there should be a change in policy but that argument should be addressed to the Legislature rather than to the courts. In this connection, we find that the Legislature has met in four regular sessions since the decisión in Phillips v.

County of Los Angeles, supra, and in three regular sessions since the decision in Johnson v. City of Glendale, supra, and that it has not amended any claims statute to make an exception in favor of minors or persons laboring under other disabilities.

It further appears that in 1933 (Stats. 1933, p. 2147) the Legislature amended Act 5150 of Deering’s General Laws (Stats. 1931, p. 2476) so as to define the word “officer” as including “employee,” thereby requiring school pupils to present their claims within 90 days in cases falling within the provisions of said act regardless of whether their injuries resulted from the negligence of a public officer or of a public employee. (Compare Myers v. Hopland U. E. School Dist., supra, and Bates v. Escondido School U. H.

Dist., 133 Cal.App. 725 [24 P.2d 884].) The conclusion is therefore inescapable that there is an established legislative policy to provide for no exceptions in favor of minors in claims statutes, and we are of the opinion that this court would commit an unwarranted trespass into the legislative field if it should write an exception into

section 4075 contrary to such established legislative policy. Plaintiff cites and relies upon a few cases from other jurisdictions which cases are not in harmony with the great weight of authority. These cases show a tendency upon the part of some courts to read into claims statutes, and particularly into those statutes prescribing very short periods of time, an exception in favor of an injured minor, incapable physically or mentally of doing the required act himself and incapable legally of appointing an agent to do the required act for him.

The basis of these minority rule decisions has usually been the asserted impossibility of compliance with the statute by the injured minor. But under the statute before us, the claim of the minor plaintiff could have been presented at any time within one year and could have been presented by a parent or guardian. (Kelso v. Board, of Education, 42 Cal.App.2d 415 [109 P.2d 29].) Furthermore, the minor plaintiff here was represented by a guardian, who in turn was represented by an attorney. in ample time for compliance as this action was brought within eleven months after the happening of the accident.

Therefore, the argument of impossibility of compliance could not have any force here. But the main ground for distinction of the minority rule cases is that we find none of those eases decided in any jurisdiction where the claims statutes of the jurisdiction affirmatively showed an established legislative policy to make claims statutes applicable to minors. Plaintiff has suggested a further point which should be mentioned. It is apparently contended that as

section 400 of the Vehicle Code authorizes the county to insure against the liability imposed by that section, the purpose of

section 4075 of the Political Code in requiring the filing of claims no longer exists. We find no merit in this contention. The record before us contains nothing to show that the defendant county had insured against such liability but, assuming that the record so showed, the provisions of

section 4075 would nevertheless be applicable. The liability imposed by

section 400 of the Vehicle Code rests upon the county, and

section 4075 of the Political Code provides that all claims against the county must be presented. Neither the provisions of

section 400 of the Vehicle Act authorizing the county to insure nor the fact that the county may have acted under such authorization can have any bearing upon the question before us. It follows from what has been said that plaintiff’s complaint failed to state a cause of action against the defendant county and that the trial court properly sustained the demurrer of the defendant county and entered the judgment of dismissal in its favor. The judgment is affirmed. Gibson, C. J., Shenk, J., and Curtis, J., concurred.