Opinion
D.C. No. CV-95-20545-WAI
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted April 13, 2000.
Appeal from the United States District Court for the Northern District of California, William A. Ingram, District Judge, Presiding.
Before BOOCHEVER, BRUNETTI, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
The City of San Jose ("City") appeals from a jury verdict against it. Because the parties are familiar with the factual and procedural history of the case, we will not recount it here.
I
The plaintiffs' claim tendered to the City pursuant to California Government Code § 945.4 contained sufficient notice of the claim to comply with California Government Code § 910. "If the claim satisfies the purpose of the act without prejudice to the government, substantial compliance will be found." Elias v. San Bernardino Co. Flood Control Dist., 68 Cal.App.3d 70, 74 (1977). Here, unlike Williams v. Braslow, 179 Cal.App.3d 762, 770 (1986), the claim provided sufficient information to allow the City to make an investigation of the merits of the claim and to settle it without the expense of a lawsuit. At oral argument, the City claimed surprise at the scope of jury instructions. However, this issue was not independently preserved for appeal and is not relevant to the sufficiency of the initial administrative claim. As the California Supreme Court wrote in City of San Jose v. Superior Court, 12 Cal.3d 447 (1974) (In Bank), a case involving the very municipal entity involved in this appeal:
It is not the purpose of the claims statutes to prevent unfair surprise. Rather the purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.
Id. at 455 (citations omitted).
The claim tendered in this case sufficiently accomplished this statutory purpose.
II
The evidence tendered at trial was sufficient to establish negligent infliction of emotional distress as enunciated in Thing v. Chusa, 48 Cal.3d 644, 667-68 (1989). The City argues that Mrs. Moss did not actually witness the shooting. However, under California law, "it is not necessary that a plaintiff bystander actually have witnessed the infliction of injury to her child, provided that the plaintiff was at the scene of the accident and was sensorially aware, in some important way, of the accident and the necessarily inflicted injury." Wilks v. Hom, 2 Cal.App. 4th 1264, 1271 (1992). Mrs. Moss was in the hallway of the house which was the scene of the shooting and was contemporaneously aware of the event, thus establishing negligent infliction of emotional distress as construed by Wilks.
The judgment of the district court is affirmed. All other outstanding motions are denied as moot.
AFFIRMED