Cory

Plaintiff filed this personal injury action against defendant City of Huntington Beach (hereinafter “city”) and others. The city moved for summary judgment on the basis that plaintiff had not complied with section 945.4 of the Government Code. Plaintiff takes this appeal from the action of the trial court in granting the motion for summary judgment.

. The parties have filed an agreed statement setting out the facts of the case as follows. On July 22, 1970, plaintiff was injured in an automobile accident. On August 18, 1970, he filed a claim for damages with the city in accordance with Government Code section 911.2 and two days later (August 20, 1970) filed this personal injury action. The city was not served with the complaint and summons until April 8, 1971. On or about July 21, 1973, the city moved for summary judgment. The sole basis on which the motion was made and granted was that the instant action was prematurely filed.

Under Government Code section 945.4 actions of the kind involved here against a local governmental unit may not be brought unless a claim has been filed with the entity and has been acted upon or deemed rejected by failure to act upon the claim…