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Bentley, Cal. To the same effect see A. Morrill Co. State of California 65 Cal. Harney, Inc. The extent to which Walton should be applied is open to question. Brennan Cal. City of Los Angeles Cal. Rio [ Cal. School Dist. See Law Revision Com. Tort Liability Cont.

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In Taylor v. Rio Vista etc. Gonzales v.

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In Walton v. Code Civ. Whatever may have been said of the California law prior to the decision in Cross v. The action arises out of an automobile collision which occurred on March 19, In addition to the City and the State, the driver of another vehicle, the County of Solano, and named and fictitious defendants who allegedly worked on the street were ed as defendants.

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State of California, supra, Cal. See Gov. It is not alleged or claimed that the daughter was named as a claimant, or that any sum was claimed on her behalf. County of Kern 39 Cal. See former Pol. A timely claim was filed February 1, for a death which occurred December 24, No action was ever taken with respect to rejecting or allowing the claim, but the complaint was filed on March 7, The county filed an answer in April A [ Cal.

The reviewing court observed, "The general rule is that where an action is prematurely brought, and the original complaint must fall, a supplemental complaint has no place as a pleading. It held that the general state law giving a right of action for injuries resulting from the dangerous or defective condition of public property Gov. The widow urges that, in similar vein, Walton should be limited to situations where the period in which the public entity may consider the claim is prescribed, and the failure to act within that period therefore may be considered a rejection.

County of San Diego, supra, 66 Cal. See also Gonzales v. Susan P. Santini is named individually, and as administratrix of Alma A. Petersen in the caption of the first amended complaint for damages, filed January 26,and made a part of the record on this appeal.

It is suggested that the failure of the City to raise the absence of a claim by the daughter when originally served with the summons and complaint in Septemberand until July 25,when it made its motion for summary judgment, furnishes a basis for waiver or estoppel. It is alleged that she is an adult married person, and that she and her mother are the sole surviving heirs at law of her deceased father. Otherwise, its provisions could not be waived.

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In the latter situation, there is no need to await rejection before bringing an action Cal. The court noted that there were factors limiting the effectiveness of Walton as a precedent id. The text of the claim of the widow has not been made a part of the record of the case on appeal, but it appears to be assumed that it included not only damages for her own personal injuries, but also her damages for the loss of her husband. Brennan, supra, Cal. No cause has been shown for relieving the daughter from her failure to file a claim, and the court properly granted the State's and the City's motions for summary judgment.

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The City by failure to deny these allegations in its answer filed April 25,admitted the filing of the claim and its disallowance. Although the original complaint is not a part of the record, it was apparently filed on September 11,and served on the State on March 25, Appellants assert the complaint was served on the City in Septemberthe month it was filed. The State, in its answer filed March 6,admitted that a claim was filed May 18, and denied on September 19, It also expressly alleged that all plaintiffs' actions were barred by reason of failure to comply with the provisions of Government Code, section ; fn.

The tenth cause of action contains similar allegations against the State of California. Spence v. State of California Cal. Claude Fisher Co. City of Los Angeles 19 Cal. See Cal. Law Rev. Tort Liability Cal. See McGranahan v.

Petersen v. city of vallejo

The widow's claim against the State admittedly was filed on May 18, The action was commenced September 11,eight days prior to the rejection of the claim. Petersen, on behalf of all the plaintiffs, widow, daughter and administratrix.

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Under these circumstances, her action against the City is barred by the provisions of former sections and fn. If she is properly before the court as administratrix, despite the lack of such allegations, the considerations which apply to her individually govern her rights as administratrix. The pertinent facts are set forth in the discussion which follows. It is asserted with respect to the City and the State that the street at the scene of the accident was maintained in a dangerous condition.

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This appeal involves a review of the contention of both the City and the State that the daughter failed to file a timely claim either individually or as administratrix, the City's further contention that there is no triable issue as to any of plaintiffs because it did not have possession or control of the street at the scene of the accident at the time it occurred, the State's contention that the action was properly dismissed as to the surviving widow because it was filed prior to the formal rejection of her claim, and the State's further claim that the trial court properly dismissed the complaint because the plaintiffs failed to comply with discovery orders.

Werchick, Arne Werchick and David P. Weaver, Jr. Richard Lucas, Harry S. Fenton, Robert F. Carlson and Marc Sandstrom for Defendants and Respondents.

Insofar as is pertinent here, Government Code, section fn. In neither of these causes of action is it alleged directly or by reference that a claim was filed with the respective public entity for the damages sought.

In Tammen v. Plaintiffs, the surviving widow of Alma A. Petersen, who seeks to recover damages for her own injuries, for the wrongful death of her husband and for loss of her car, and the surviving adult daughter, who, individually and as administratrix, seeks to recover damages for the wrongful death of her father, have appealed from judgments entered in favor of the defendants City of Vallejo and State of California, following an order of the court which granted the City's motion for summary judgment and the State's motions for summary judgment, and for dismissal and to preclude evidence.

It is concluded that the daughter's action, individually or as administratrix is barred by her failure to file a timely claim with either the City or the State; that the court properly granted the City summary judgment because it did not have possession or control of the street at the scene of the accident; that it was error to dismiss the widow's suit because it was prematurely filed; but that the action was properly dismissed as to the State because of the plaintiffs' failure to [ Cal.

The judgments must be affirmed.

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It has been generally considered that the foregoing provision prevented a claimant from bringing an action against the State until the claim was rejected or disallowed. A search of the allegations of the amended complaint reveals no reference to her appointment, qualifications or capacity to act. Code; [see also Gov. However, in the second and fourth causes of action, in which the widow seeks damages for her own personal injuries against the City and the State, it is alleged that a claim was filed with each.

An action on such claim shall be brought within six months after the claim is rejected or disallowed in part.

County of San Diego 66 Cal. Marvel Cal. City of San Bernardino 49 Cal. She relies upon Rand v. Nevertheless, as has been noted Gonzales v. In this case the days specified in section of the Government Code expired long before the date the action was filed. Andreatta 60 Cal. The matrix furnishes a form which is pertinent, but there is no substance with which to mold a figure which will throw a shadow on the clear base upon which the City predicates its case for nonliability.

See also Tammen v.