Plaintiff, through his guardian ad litem, brought this action against defendant Los Angeles Metropolitan Transit Authority for injuries caused by defendant's agents' negligent operation of a motor vehicle. (Veh. Code, § 17001.) Defendant demurred to the complaint on the ground that section 945.6 of the Government Code barred plaintiff's action; the trial court sustained the demurrer with leave to amend. Defendant moved to strike plaintiff's amended complaint *Page 601 as merely repetitive of the earlier complaint; the trial court granted this motion and dismissed plaintiff's action. (See Code Civ. Proc., § 581, subd. 3.)
On plaintiff's appeal we hold that the trial court improperly dismissed the action. As we shall point out in more detail, Code of Civil Procedure section 352 preserves the causes of actions of minors against the running of the statute of limitations, and nothing in Government Code section 945.6, enacted in 1963 as part of the California Tort Claims Act, abrogates that section or the public policy that underlies it.
According to the allegations of the complaint, plaintiff, a minor, sustained injury on July 16, 1961. He timely filed the required claim with defendant on October 18, 1962 (former Gov. Code, §§ 703, 710, 715); defendant rejected that claim on an unspecified date. Plaintiff filed this action against defendant on February 10, 1965, over six months after defendant must have rejected the claim.1 [1] Section 352 of the Code of Civil Procedure, which governs this case, preserves during minority the minor's right to bring any action mentioned in chapter three of part two, title two, of that code. Thus Code of Civil Procedure section 352 specifically provides: "If a person entitled to bring an action,mentioned in chapter three of this title, be, at the time the cause of action accrued, . . . 1. Under the age of majority . . . the time of such disability is not a part of the time limited for the commencement of the action." (Italics added.)2 Chapter three purports to prescribe "[t]he periods . . . for thecommencement of actions other than for the recovery of real property. . . ." (Italics added.) (Code Civ. Proc., § 335) Hence, as to any cause of action mentioned or covered, in that chapter, the minor's cause is protected until majority, no matter what statutory limitations apply to litigants other than minors.
The cause of action which confronts us here is one against a *Page 602 public entity; our sole query turns on whether such an action is "mentioned" in chapter three. Indubitably, chapter three does "mention" this kind of action; it specifically refers to an action against a public entity for which a claim must be presented; it specifically prescribes the limitation applicable to such an action. Thus section 342 in chapter three provides: "An action against a public entity upon a cause of action for which a claim is required to be presented . . . must be commenced within the time provided in Section 945.6 of the Government Code."3 The inclusion of the section in chapter three automatically, pursuant to the specific mandate of section 352, excepts and tolls actions of minors against a public entity.
The legislative protection of the rights of the minor in all chapter three causes cuts across the limitations applicable to other litigants; the Legislature has enacted an express and clear tolling of the statute for the minor. We need engage in no rhetoric to establish the minor's right; we need not rely upon precepts of statutory construction to support it.
The express words of the statutes effectuate a deep and long recognized principle of the common law and of this state: children are to be protected during their minority from the destruction of their rights by the running of the statute of limitations. This principle became a part of California statutory law as long ago as 1863 (Stats. 1863, ch. 250, pp. 325, *Page 603 326) and has since been applied in actions against governmental entities as well as those against private persons (see, for instance, Hennessy v. County of San Bernardino (1941) 47 Cal.App.2d 183 [117 P.2d 745]).
Despite the Legislature's express preservation in Code of Civil Procedure section 352 of the minor's right to sue, defendant would outlaw such action upon the ground of an alleged implied negation of it. Defendant argues that because the Legislature included in Government Code section 945.6, subdivision (b), a tolling provision for felons, it inferentially repealed the tolling provision for children. To sustain this position, defendant, erroneously in our opinion, relies upon three grounds: first, upon a maxim of statutory construction; second, upon some decisions, and third, upon a statement of Professor Van Alstyne.
[2] The defense first proposes to overcome the words of the code through a process of nullification by negative implication. For this purpose it invokes the maxim expressio unius estexclusio alterius; yet that rule of construction, whatever its force or value, does not apply here. It cannot perform its proper role of resolving an ambiguity in statutory language or uncertainty in legislative intent because here we encounter neither ambiguity nor uncertainty. The language of section 352 of the Code of Civil Procedure presents no question of meaning; when section 945.6 of the Government Code is read with it, no doubt or conflict arises as to minors. In these circumstances there is no room for the proposed rule of construction.
Indeed, an unquestioned line of decisions tells us that the maxim "will not be utilized to contradict or vary a clear expression of legislative intent. . . . [Citing cases.]" (Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 811 [151 P.2d 505, 157 A.L.R. 324]; In re Cathey (1961)55 Cal.2d 679, 689 [12 Cal.Rptr. 762, 361 P.2d 426]; McNee v.Harold Hensgen Associates (1960) 178 Cal.App.2d 881, 885 [3 Cal.Rptr. 377].) In the absence of express statutory provision, courts will not find an implied abrogation of long established principles. Thus in Garvey v. Byram (1941) 18 Cal.2d 279 [115 P.2d 501, 136 A.L.R. 1137], the question turned on whether the debtor could bid at the tax sale of his own property. The applicable statutory provision specifically prohibited bids for a sum less than the minimum price fixed in the resolution of the board of supervisors. It contained no exclusion *Page 604 of bids by the former owner of the property, an exclusion long established in case law. Rejecting the debtor's argument that the Legislature's prohibition of a subminimal bid impliedly excluded any other prohibition on bids, this court held: "When a rule is so long engrained in the public policy of the state it must be presumed that the legislature took it for granted rather than sought to alter it in omitting any specific provision for its application." (18 Cal.2d at p. 281.)
[3] In the instant case the exemption of minors from the bar of the statute of limitations during minority is "long engrained in the public policy of the state." To hold that the express tolling of prisoners' claims inferentially repeals the children's exemption is not only to reverse the policy, contrary toGarvey, but actually to ignore the express declaration of the Legislature.4 In fact the Legislature expressly enacted Code of Civil Procedure section 342 as an integral part of the 1963 general legislation on claims and actions against public entities (Stats. 1963, ch. 1715, pp. 3369, 3394), thereby concurrently and clearly "mentioning" actions against public entities and preserving the exemption of minors from the running of the statute of limitations. Although subdivision (b) of section 945.6 may have qualified the disability provision of section 352 as to prisoners5 (Code Civ. Proc., § 1859), section945.6 does not purport to qualify in any manner the tolling provisions of section 352 as to children.
Although defendant relies on Artukovich v. Astendorf (1942)21 Cal.2d 329 [131 P.2d 831], that case does not apply to the situation before us. There the plaintiff contended that his minority excused him from the requirement of former Political Code section 4075, which provided that an injured party file a claim before bringing suit against a public entity. *Page 605 Noting that the statute did not explicitly excuse minors from compliance with the claims procedures, we held: "Thus there are statutory provisions extending special consideration to minors with respect to the time within which certain proceedings must be commenced ([e.g.,] Code Civ. Proc., § . . . 352 . . .), 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. . . ." (21 Cal.2d at pp. 333-334.) In the instant case, as we have pointed out, Code of Civil Procedure section 352 does extend special consideration to minors, and an action against a public entity is a proceeding therein "mentioned." (Code Civ. Proc., § 342)
Pacific Indem. Co. v. Superior Court (1966) 246 Cal.App.2d 63 [54 Cal.Rptr. 470], and State Farm etc. Ins. Co. v.Superior Court (1965) 232 Cal.App.2d 808 [43 Cal.Rptr. 209], also cited by defendant, held that a minor injured in an automobile accident must comply with the provisions of Insurance Code section 11580.2, in an action against his insurer under the uninsured motorist provisions of the policy. That section provides in subdivision (h): "No cause of action shall accrue to the insured under any policy or endorsement provision issued pursuant to this section unless within one year from the date of the accident: (1) Suit for bodily injury has been filed against the uninsured motorist, in a court of competent jurisdiction, or (2) Agreement as to the amount due under the policy has been concluded, or (3) The insured has formally instituted arbitration proceedings." (Italics added.) The courts in the above cases, relying on Artukovich, held that the provisions of section 352 did not apply to the limitations period set forth in Insurance Code section 11580.2 (Pacific Indem. Co. v. Superior Court,supra, 246 Cal.App.2d 63, 71-72; State Farm etc. Ins. Co. v.Superior Court, supra, 232 Cal.App.2d 808, 810.) Insurance Code section 11580.2 subdivision (h), however, creates a condition for the preservation of a potential cause of action under an insurance policy and does not fix the time for instituting a civil suit against the insurer after a cause of action has accrued. (See Firemen's Ins. Co. of Newark, N.J. v.Diskin (1967) 255 Cal.App.2d 502, 510 [63 Cal.Rptr. 177].)
Frost v. State of California (1966) 247 Cal.App.2d 378 [55 Cal.Rptr. 652], involved an action brought by minors against *Page 606 the state, not a local public entity, and held that former Government Code section 644 barred such an action. The section specified that an action on a claim against the state must be brought within six months after the state's rejection of the claim but the section provided no extension for minors. The court held that Code of Civil Procedure section 352 did not extend the six-month period because an action against the state was not one mentioned6 in chapter three prior to the 1963 legislation.7
Defendant finally relies heavily on the analysis of Professor Van Alstyne in California Government Tort Liability (Cont. Ed. Bar), section 9.5, pages 416-417: "The 1963 act makes one express exception [sentence to imprisonment in a state prison] to the limitations period. . . . In light of this one exception, it appears by implication that other bases for tolling the six-month limitations period (see e.g., CCP § 352(1) — minority; § 352(2) — incompetency; § 351 — defendant's absence from the state; § 353 — death of defendant) were *Page 607 intended to be inapplicable. The legislative intent that the `general statutes of limitations' would have no application was, in fact, explicit. See Part V, Note 2, § 945.6.[8] For some general tolling provisions, such as death or absence from the state, factual circumstances would never occur in actions against public entities; while for other grounds, such as minority or incompetency, a suit through a guardian ad litem is available. Accordingly, strict adherence to the six-month period will probably be required by the courts, except as specifically provided for persons who have lost their civil rights."
[4] The legislative history of section 945.6, however, furnishes no support for these comments. That history affords no clue or indication of an intent to preclude application of the minority disability provision of section 3529 In proposing *Page 608 section 945.6 the Law Revision Commission did not suggest any exception whatever to the operation of Code of Civil Procedure section 352 or the protection of minors against the statute of limitations during minority; the commission offers no comment on whether such disability provisions in the Code of Civil Procedure toll the statute. (Cal. Law Revision Com., Recommendation,supra, pp. 1043-1044.) Indeed, it was the Senate that amended the proposed section 945.6 to provide for extension because of imprisonment (Senate Jour., April 8, 1963, pp. 1421-1422); and no available legislative or other material indicates in any way that this section was intended to affect the rights of minors.
Professor Van Alstyne suggests that a ruling that section 352 was inapplicable to actions against a public entity would not work a hardship to an injured party. Although, as he points out, a court could appoint a guardian ad litem for minors or insane persons, such a protective procedure could be followed in every case. The Legislature, however, has not seen fit for that reason to abolish the general exceptions contained in Code of Civil Procedure section 352, subdivisions 1 and 2. We see no reason to believe the Legislature relied upon the asserted protection to the minor of the guardianship only in the case of an action against a public entity.
Defendant offers no satisfactory reason why the statute of limitations in section 945.6 should not be tolled by plaintiff's minority. Because plaintiff must timely comply with the claims procedures (Artukovich v. Astendorf, supra, 21 Cal.2d 329), the public entity will be afforded the opportunity to investigate promptly the minor's claim and will be alerted to any possible future financial obligations. In preserving the child's cause of action during minority, we adhere to the strong and long established policy of protecting minors against the loss of their rights. As we have pointed out above, the applicable statutes compel this result.
Defendant's assertion that the California Tort Claims Act be viewed as a complete and separate enactment for limitations of actions against government agencies would make the province of the act a separate and sovereign empire immune from all other provisions of California statute. Yet the act must be subject in this instance to California law; section 352 expressly subjugates it to the general provisions of the exemption for minors; the contrary result would call for the erasure of specific sections of the Code of Civil Procedure. *Page 609
In conclusion, we find no basis for nullifying the legislative direction. The tolling provision of section 352 applies to any action "mentioned" in chapter three; section 342 does specifically mention the type of action against a public entity which we probe here. We should not, and cannot, invoke a rule of statutory interpretation to overcome the clear words of the Legislature that need no interpretation. But to accept defendant's contention here would be to do more than misapply canons of construction; it would strike down the express provision of the Legislature in order to defeat an underlying policy of this state dedicated to the protection of children.
We reverse the judgment of dismissal and remand the cause with directions to the trial court to overrule the demurrer and to grant a reasonable time within which defendant may answer if so advised.
Traynor, C.J., Peters, J., Mosk, J., and Sullivan, J., concurred.
"We are not, however, concerned with the meaning and effect of section 945.6 because of our holding that plaintiffs' cause of action, if barred at all, was barred before the 1963 legislation became effective." (247 Cal.App.2d at p. 386.)
The court considered most significant those provisions in the 1963 legislation extending special consideration to minors as to the time within which a claim must be filed. (Gov. Code, §§ 911.4, 911.6, 946.6.) The court erroneously concludes that these provisions indicate a legislative intent not to extend such consideration to minors with regard to the time within which anaction must be brought. In the absence of any specific provision, minors would be held to the requirements of the claims statutes (Artukovich v. Astendorf, supra, 21 Cal.2d 329), but the general disability provisions of section 352 had been held applicable to actions against a public entity. (Hennessy v.County of San Bernardino, supra, 47 Cal.App.2d 183.) InHennessy a minor brought an action against the county more than six months after his claim had been rejected. Although the applicable six month statute of limitations (former Code Civ. Proc., § 342, and former Pol. Code, § 4078) gave no specific extensions because of minority, the court held that the disability provisions of section 352 applied.
As another illustration, Government Code section 950.6 setting forth a six-month limitation period for actions against public employees, includes a provision tolling the statute for felons identical with that in section 945.6. If the defendant died shortly before the expiration of the period, or if he did not remain in California during the period, plaintiff's action would be unjustifiably barred unless a court applied the general provisions of Code of Civil Procedure sections 353 and 351. As to this possibility Professor Van Alstyne states: "In the absence of legislative correction, the problem could readily be cured by liberal judicial interpretation because nothing in the act expressly forecloses application of the Code of Civil Procedure tolling provisions." (Van Alstyne op. cit., supra, § 10.9, p. 441.) Professor Van Alstyne's suggested liberal interpretation here cannot be reconciled with his contradictory statement that the tolling provisions do not apply to the rights of minors.