fatal variance between claim in California

1994(Id., at pp. 225-226.) The court stated that cases which found a fatal variance between the claim and the complaint involved a “complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim.” (Id., at p. 226.) In White v. Superior Court (1990) 225 Cal.App.3d 1505 [ 275 Cal.Rptr. 706 ], Division Three of this court surveyed several decisions which analyzed the need for a complaint’s allegations to be fairly reflected in the claim filed with a public entity.

1994(Id., at pp. 225-226.) The court stated that cases which found a fatal variance between the claim and the complaint involved a “complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim.” (Id., at p. 226.) In White v. Superior Court (1990) 225 Cal.App.3d 1505 [ 275 Cal.Rptr. 706 ], Division Three of this court surveyed several decisions which analyzed the need for a complaint’s allegations to be fairly reflected in the claim filed with a public entity.

1958(See Cathey v. City 4 County of San Francisco, 37 Cal.App.2d 575 [ 99 P.2d 1109 ]; Kornahrens v. City & County of San Francisco, 87 Cal.App.2d 196 [ 196 P.2d 140 ].) 2 In addition to the claim and the original complaint stating Steiner and Broadway as the place of the accident, plaintiff stated to a policeman when she was being removed from the coach at Fillmore and Sutter and also to an investigator some ten days later that the accident happened at Steiner and Broadway. 3 In Cohen v. City of New York (1946), 270 App.Div. 1017 [ 62 N.Y.S.2d 455 ], cited by defendant, the lower court held that

1958(See Cathey v. City 4 County of San Francisco, 37 Cal.App.2d 575 [ 99 P.2d 1109 ]; Kornahrens v. City & County of San Francisco, 87 Cal.App.2d 196 [ 196 P.2d 140 ].) 2 In addition to the claim and the original complaint stating Steiner and Broadway as the place of the accident, plaintiff stated to a policeman when she was being removed from the coach at Fillmore and Sutter and also to an investigator some ten days later that the accident happened at Steiner and Broadway. 3 In Cohen v. City of New York (1946), 270 App.Div. 1017 [ 62 N.Y.S.2d 455 ], cited by defendant, the lower court held that

1958(See Cathey v. City 4 County of San Francisco, 37 Cal.App.2d 575 [ 99 P.2d 1109 ]; Kornahrens v. City & County of San Francisco, 87 Cal.App.2d 196 [ 196 P.2d 140 ].) 2 In addition to the claim and the original complaint stating Steiner and Broadway as the place of the accident, plaintiff stated to a policeman when she was being removed from the coach at Fillmore and Sutter and also to an investigator some ten days later that the accident happened at Steiner and Broadway. 3 In Cohen v. City of New York (1946), 270 App.Div. 1017 [ 62 N.Y.S.2d 455 ], cited by defendant, the lower court held that

1958(See Cathey v. City 4 County of San Francisco, 37 Cal.App.2d 575 [ 99 P.2d 1109 ]; Kornahrens v. City & County of San Francisco, 87 Cal.App.2d 196 [ 196 P.2d 140 ].) 2 In addition to the claim and the original complaint stating Steiner and Broadway as the place of the accident, plaintiff stated to a policeman when she was being removed from the coach at Fillmore and Sutter and also to an investigator some ten days later that the accident happened at Steiner and Broadway. 3 In Cohen v. City of New York (1946), 270 App.Div. 1017 [ 62 N.Y.S.2d 455 ], cited by defendant, the lower court held that

1958(See Cathey v. City 4 County of San Francisco, 37 Cal.App.2d 575 [ 99 P.2d 1109 ]; Kornahrens v. City & County of San Francisco, 87 Cal.App.2d 196 [ 196 P.2d 140 ].) 2 In addition to the claim and the original complaint stating Steiner and Broadway as the place of the accident, plaintiff stated to a policeman when she was being removed from the coach at Fillmore and Sutter and also to an investigator some ten days later that the accident happened at Steiner and Broadway. 3 In Cohen v. City of New York (1946), 270 App.Div. 1017 [ 62 N.Y.S.2d 455 ], cited by defendant, the lower court held that

1958(See Cathey v. City 4 County of San Francisco, 37 Cal.App.2d 575 [ 99 P.2d 1109 ]; Kornahrens v. City & County of San Francisco, 87 Cal.App.2d 196 [ 196 P.2d 140 ].) 2 In addition to the claim and the original complaint stating Steiner and Broadway as the place of the accident, plaintiff stated to a policeman when she was being removed from the coach at Fillmore and Sutter and also to an investigator some ten days later that the accident happened at Steiner and Broadway. 3 In Cohen v. City of New York (1946), 270 App.Div. 1017 [ 62 N.Y.S.2d 455 ], cited by defendant, the lower court held that

1942The fact that a copy of the claim was attached to the complaint and admitted in appellants’ answerK as well as appellants’ failure to object to the introduction of evidence at the trial upon the stated ground of variance, point to the conclusion that appellants were not misled, and “a variance to be fatal must have misled or served to mislead the adverse party.” (Short v. Orland etc. Co., 29 Cal. App. (2d) 326, 329 [ 84 P. (2d) 324 ], citing Holden v. Mensinger, 175 Cal. 300 [ 165 Pac. 950 ].) Further, the fact that appellants introduced evidence controverting the claims of respondent, in part

1942The fact that a copy of the claim was attached to the complaint and admitted in appellants’ answerK as well as appellants’ failure to object to the introduction of evidence at the trial upon the stated ground of variance, point to the conclusion that appellants were not misled, and “a variance to be fatal must have misled or served to mislead the adverse party.” (Short v. Orland etc. Co., 29 Cal. App. (2d) 326, 329 [ 84 P. (2d) 324 ], citing Holden v. Mensinger, 175 Cal. 300 [ 165 Pac. 950 ].) Further, the fact that appellants introduced evidence controverting the claims of respondent, in part

1929The trial court held that inasmuch as the claim was for reasonable value of services and supplies rendered the deceased and the proof was that the services were performed in expectation of and in return for the promise of a legacy, this constituted a fatal variance between claim and proof under the authority of Etchas v. Orena, 127 Cal. 588 [ 60 Pac. 45 ].

1929The trial court held that inasmuch as the claim was for reasonable value of services and supplies rendered the deceased and the proof was that the services were performed in expectation of and in return for the promise of a legacy, this constituted a fatal variance between claim and proof under the authority of Etchas v. Orena, 127 Cal. 588 [ 60 Pac. 45 ].

1915That was the only action which he might maintain.- There was' here a fatal variance between the claim presented and the claim upon which suit was brought." (McGrath v. Carroll, 110 Cal. 84 , [ 42 Pac. 466 ].) It follows that the judgment and order from which plaintiff appeals should be and they hereby are affirmed.