California Public Entity Claims

8/6/2019 California Public Entity Claims

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California Public Entity Claims 08/05/2010

By Barbara Haubrich, ACP/CAS

Introduction:

State, county, or local government liability in California is governed by a maze of unique rules to followprior to filing a lawsuit. In most circumstances, a government entity can be sued for the acts of itsemployees as if the misconduct had been committed by a private individual. With very limitedexceptions, no lawsuit for money damages may be brought against a public entity unless a writtenClaim has been properly served on the entity, and the Claim is either formally rejected or deemedrejected by the passage of time.

The procedure and time limits for filing a Claim begins at Gov. Code 900, and is referred to as theCalifornia Tort Claims Act. It is important to know that a public entity will only be liable when theState legislature has passed a statute allowing liability for the act of harm. Additionally, there are

many variables to these rules, including exceptions to the six-month Claim requirement, relief fromfiling a late Claim, and proper service of the Claim.

This article does not discuss Claims against the Federal government, which is governed by the FederalTort Claims Act.

Purpose:

The purpose of the California Tort Claims Act is to provide the public entity sufficient information toenable it to adequately investigate claims and to settle them, if appropriate, without the expense oflitigation. [City of San Jose v. Sup.Ct. (1974) 12 Cal 3d 447, 455] It also enables the public entity toengage in fiscal planning for potential liabilities, and to avoid similar liabilities in the future. [Lozadav. City & County of San Francisco (2006) 145 Cal App 4th 1139, 1151]

Time Limits:

A. Time to Present Claim: A Claim relating to a cause of action for death or for injury to person orto personal property shall be presented no later than six months after the accrual of the cause ofaction. All Claims must be presented within one year. [Gov. Code 911.2] Please keep in mind thata plaintiff who is a minor does not extend the time limit for presentation of a Claim against a publicentity.

B. Accrual Date: For the purpose of computing the time limits, the date of the accrual of a cause ofaction is the date that the cause of action would be deemed to have accrued if there were norequirement that a Claim be presented. [Gov. Code 901] For the most part, actions accrue on thedate of injury, such as in a personal injury action. [CCP 335.1] Other actions accrue when theinjury is discovered, like in a medical malpractice action. [CCP 340.5] In some situations, theaccrual date is delayed based on late discovery of the cause of action, such as in a road design ordefective roadway cause of action. Although the plaintiff was aware of the injury date, the cause ofaction accrues when the plaintiff first became aware, or through reasonable diligence could havebecome aware, that the defendant's negligence was a cause of the injury. [Leaf v. City of San Mateo(1980) 104 Cal. App. 3d 398, 408; Scott v. County of Los Angeles (1977) 73 Cal. App. 3d 476, 482-484]


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C. Time to Act on Claim: Once the Claim is presented, the public entity must act on the Claimwithin 45 days, and provide written notice of the action taken. [Gov. Code 912.4] Upon presentationof the Claim, the entity has four choices: 1. Reject the Claim; 2. Give notice the Claim is insufficient;3. Do nothing; or 4. Approve the Claim. If the Claim was presented by mail, the public entity hasadditional time to respond as described in CCP 1013. [Gov. Code 915.2]

D. Deemed Rejected: If the public entity fails to act within 45 days, the Claim is deemed rejectedby operation of law. [Gov. Code 912.4]

E. Rejection of Claim: The public entity is required to give written notice of its rejection or of itsinaction, which is deemed a rejection. [Gov. Code 913] Failure to give written notice within 45 daysfrom the date the Claim is presented waives the public entity's defense that the Claim wasuntimely. [Gov. Code 911.3(b)]

F. Form of Notice: The notice must warn the claimant of the 6month statute of limitations to file alawsuit after rejection. [Gov. Code 913(b)] The failure to include this warning extends time forfiling a lawsuit to 2 years from time of accrual. [Gov Code 945.6; County of Alameda v. SuperiorCourt, (1987) 195 Cal.App.3d 1283, 1286]

G. Mailing of the Claim: The proof of mailing of the written notice is sufficient to trigger the six-month limit for filing a lawsuit. [Childs v State, (1983) 144 Cal.App.3d 155, 160; Edgington v Countyof San Diego, (1981) 118 Cal.App.3d 39, 46]

H. Time to File Complaint: Once the Claim is either formally rejected or deemed rejected by thepassage of time, you have only six months to file a lawsuit. [Gov. Code 913]

Tips

When calculating a statute of limitations, always favor the most conservative calculation. Once the 45days has lapsed for a public entity to act on the Claim, treat the Claim as deemed rejected by operation oflaw and then calculate the date to file the Complaint with the court.

Here is a simple, yet conservative, manner to calculate these cut-offs, assuming there are no errors in theClaim, the Claim is filed timely, and the Claim is for money damages:

______ Date of accrual______ 180 days from date of accrual (if 180 days falls on a weekend or holiday,

calculate the date backward to Friday rather than forward to Monday): Lastday to serve Claim on public entity.

______ 45 days from service of Claim or date of actual formal notice: First day to fileComplaint with the court against the public entity.

______ 180 days from service of Claim or date of actual formal notice (if 180 days fallson a weekend or holiday, calculate the date backward to Friday rather thanforward to Monday): Last day to file Complaint with the court against thepublic entity.

Is the Defendant a Public Entity?

There are few exceptions, but the claims filing statute applies to claims against every public entity inCalifornia. These include, but are not limited to, the State and every political subdivision; every agencyand department; and every special purpose district, such as public schools, public hospitals, and publictransportation. [Gov. Code 900 et seq.]


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Tips

Sometimes it is difficult to determine if a defendant is a public entity. If you are unsure whether thedefendant is a public entity, you can:

Check the agencys website; Check the Roster of Public Agencies in the county clerks office or the Secretary of States

office. [Gov. Code 53051] Call the agency. I have found that most agencies are very helpful.

Preparing the Claim:

When preparing a Claim, look beyond the Claim to the causes of action that will be included in theactual Complaint that will be filed with the court. Failure to allege facts in the Complaint showingcompliance with the Claims statute is grounds for a Demurrer. [State of Calif. V. Sup. Ct. (2004) 32Cal.4th 1234, 1239] Additionally, causes of action not included in the Claim that are then laterincluded in the Complaint can be challenged in a Demurrer. [Fall River Joint Unified Sch. Dist. vSuperior Court, (1988) 206 Cal.App.3d 431, 434; Connelly v State, (1970) 3 Cal.App.3d 744]

A Claim shall be presented by the claimant or by a person acting on his or her behalf and shall show allof the following:

The name and post office address of the claimant. The post office address to which the person presenting the Claim desires notices to be sent. The date, place and other circumstances of the occurrence or transaction which gave rise to

the Claim asserted. A general description of the indebtedness, obligation, injury, damage or loss incurred so far as

it may be known at the time of presentation of the Claim. The name or names of the public employee or employees causing the injury, damage, or loss, if

known. The amount claimed if it totals less than $10,000 as of the date of presentation of the claim,

including the estimated amount of any prospective injury, damage, or loss, insofar as it may beknown at the time of the presentation of the Claim, together with the basis of computation ofthe amount claimed. If the amount claimed exceeds $10,000, no dollar amount shall beincluded in the Claim. However, it shall indicate whether the Claim would be a limited civilcase. [Gov. Code 910]

Tip

Many governmental agencies provide their own forms specifying the required information. Be sure toutilize the provided forms because some agencies will return a Claim for insufficiency if theappropriate form is not used.

How to Serve the Claim:

A Claim, or any amendment, must be presented to the public entity either by hand delivery or bymail. [Gov. Code 915] If the Claim is mailed, the Claim is deemed presented and received whenmailed. [Gov Code 915.2]


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Tip

Attach a proof of service to the Claim with the manner of service under declaration of penalty ofperjury. It is also a good idea to mail the Claim by certified mail, return receipt requested.

Fees:

Dont forget your fees! Some public entitles require a fee to file the Claim. Be sure to confirmwhether a fee is required with the filing of the Claim. If the Claim is against the State, or a Stateagency, it must be accompanied by a $25 fee unless the claimant qualifies for filing in formapauperis. [Gov Code 905.2(c)]

Effect of Failure to Comply:

The failure to comply with the Claims statute bars the Claim against the public entity and publicemployee. [Gov Code 950.2]

Conclusion:

At the time that an attorney is hired by a client, it is very important to determine if any potentialdefendant is a public entity, and then track the date for the filing of the Claim. In addition, there aresome circumstances where the filing requirements of a Claim are excused or estopped. All statutes oflimitation are subject to change, and should be carefully evaluated when calculating these veryimportant deadlines.

Barbara Haubrich is an Advanced Certified Paralegal in Trial Practices and Wrongful Death. She is also a California Advanced

Specialist in Civil Litigation. Barbara is the creator and author ofThe California Litigator, a website that is designed to provide

resources and facilitate discussions relating to California state civil litigation. The California Litigator includes an e-zine on all

topics relating to civil litigation. Additionally, Barbara is the owner and creator ofDeadline Direct, a downloadable deadline

calculating gadget for your Microsoft 7 or Vista computers. Deadline Direct is a handy tool that gives you all the options you

need in calculating deadlines and syncs a note field with the calculation to Microsoft Outlook as a task, calendar event, or e-

mail.

DISCLAIMER: Barbara Haubrich, ACP/CAS, is not an attorney. Any information derived from The California Litigator,

and any other statements contained herein, are for information purposes only, and should not be construed as legal

advice or a recommendation on a legal matter. The information from The California Litigatoris not guaranteed to be

correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the

information provided within this newsletter, or to any other website to which this newsletter may be linked.

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California Public Entity Claims