City of Fresno v. Superior Court
Opinion
Lead Opinion
Condley, J.
Petitioner City of Fresno and Parking Authority of the City of Fresno seek a writ of mandate and/or prohibition commanding respondent court to vacate its order relieving Lylon H. Lindbeck, real party in interest, from relief from the claims requirement of Government Code section 945.4.
On January 21, 1979, real party in interest, Lylon H. Lindbeck, was on a visit to Fresno. He drove to the Fresno Hilton Hotel and registered. While waiting for a Hilton elevator in the underground garage in an area prominently marked as reserved for guests of the Fresno Hilton Hotel, he was beaten and robbed.
On or before May 21, 1979, Lindbeck employed Donald K. Marshall, attorney at law, to represent him. Mr. Marshall maintained his office at Madera, California. On May 21, 1979, Mr. Marshall filed a complaint for personal injury seeking damages as a result of the assault that took place in the underground garage. Named as defendants were the Stephens Investment Company, dba Fresno Hilton Hotel, does I through X, inclusive.
*29 On July 23, 1979, Lindbeck filed a late claim with the City of Fresno. The claim was denied on August 7, 1979.
On October 22, 1979, Lindbeck through his new…
Dissenting Opinion
Hopper, J.
I respectfully dissent.
The observations and advice of the court in Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116 [ 90 Cal.Rptr. 479 ] (where the appellate court upheld the denial of a claim), is singularly appropriate in this case. The court in Bennett at page 120 said: “In discussing this claim we must be constantly aware of the different functions performed by the superior court and ourselves. Unless, ultimately, each case of this nature is to be decided by the Court of Appeal as if no trial court had ever acted on the petition, we must be careful to preserve the area of the superior court’s discretion and we must do this in fact, as well as in words. It is easy enough to give the appearance that the respective func *36 tions of the two courts are being preserved: all we need do is label as an ‘abuse of discretion’ any ruling with which we happen to disagree .... we cannot arbitrarily substitute our judgment for that of the trial court.”
In my opinion the majority has in effect substituted its judgment for that of the trial court. The majority contends that Lindbeck did not meet his burden of proof (citing the clearly distinguishable case of El Dorado Irrigation…
Opinion
Gerard, Sepulveda, Meyer & Gilmore, Vergil L. Gerard and Michael H. Meyer for Real Party in Interest.
OPINION
CONDLEY, J. [*]
Petitioner City of Fresno and Parking Authority of the City of Fresno seek a writ of mandate and/or prohibition commanding respondent court to vacate its order relieving Lylon H. Lindbeck, real party in interest, from relief from the claims requirement of Government Code section 945.4.
On January 21, 1979, real party in interest, Lylon H. Lindbeck, was on a visit to Fresno. He drove to the Fresno Hilton Hotel and registered. While waiting for a Hilton elevator in the underground garage in an area prominently marked as reserved for guests of the Fresno Hilton Hotel, he was beaten and robbed.
On or before May 21, 1979, Lindbeck employed Donald K. Marshall, attorney at law, to represent him. Mr. Marshall maintained his office at Madera, California. On May 21, 1979, Mr. Marshall filed a complaint for personal injury seeking damages as a result of the assault that took place in the underground garage. Named as defendants were the Stephens Investment Company, dba Fresno Hilton Hotel, does I through X, inclusive.