Government Tort Liability: Claims and Pleading. Basic Concepts Prelitigation claim required to sue under state law for damages Prelitigation claim required

Government Tort Government Tort Liability:Liability:

Claims and PleadingClaims and Pleading

Basic ConceptsBasic Concepts

Prelitigation claim required to sue Prelitigation claim required to sue under state law for damagesunder state law for damages

Need both timely complaint and Need both timely complaint and timely claim (or excuse)timely claim (or excuse)

Government Code time limits trump Government Code time limits trump CCP SOLsCCP SOLs

Late Claim Relief Available for six-Late Claim Relief Available for six-month claimsmonth claims

No Claim = No Cause of ActionNo Claim = No Cause of Action

DeadlinesDeadlines

Accrual same as for COA Accrual same as for COA against private defendantagainst private defendant

Claim for death, injury, personal Claim for death, injury, personal property, crops: 6 months from property, crops: 6 months from accrualaccrual

Claim for anything else: 1 yearClaim for anything else: 1 year

Deadlines Cont’dDeadlines Cont’d

Entity response:Entity response: -- Notice of insufficiency: 20 days -- Notice of insufficiency: 20 days

from presentation; can’t act for 15 from presentation; can’t act for 15 daysdays

-- Act on claim: 45 days-- Act on claim: 45 days -- After 45 days, denied by operation -- After 45 days, denied by operation

of lawof law -- Can serve denial on merits at any -- Can serve denial on merits at any

timetime -- Notice of untimeliness (for claims -- Notice of untimeliness (for claims

w/o application): Within 45 daysw/o application): Within 45 days


Amendment: BeforeAmendment: Before -- Claim presentation deadline -- Claim presentation deadline

oror -- Final action on claim-- Final action on claim Whichever is laterWhichever is later


Late Claim Relief (6 month Late Claim Relief (6 month claims):claims):

-- Late-Claim Application to -- Late-Claim Application to Entity: Reasonable Time < year Entity: Reasonable Time < year (unless tolled)(unless tolled)

-- Petition to Court: 6 months -- Petition to Court: 6 months after application denialafter application denial


Statutes of Limitations (filing Statutes of Limitations (filing complaint):complaint):

-- Notice of denial w/ 6 month -- Notice of denial w/ 6 month warning: 6 months from mailing warning: 6 months from mailing or delivery of noticeor delivery of notice

-- No or defective 6 month -- No or defective 6 month warning: 2 years from accrualwarning: 2 years from accrual

Late-claim petition to court Late-claim petition to court granted: 30 days from order granted: 30 days from order


All deadlines stemming from All deadlines stemming from response to claim or notice extended response to claim or notice extended by mailing claim or noticeby mailing claim or notice

(Exception for 6-month SOL?)(Exception for 6-month SOL?) Claimants’ deadlines run from action Claimants’ deadlines run from action

or mailing – not receipt of noticeor mailing – not receipt of notice Claimant obliged to check status if Claimant obliged to check status if

no news no news

Claims – Who Can PresentClaims – Who Can Present

ClaimantClaimant Person presenting on claimant’s Person presenting on claimant’s

behalf:behalf: -- Attorney-- Attorney -- Guardian or conservator-- Guardian or conservator -- Anyone else-- Anyone else Unauthorized claim binding if ratifiedUnauthorized claim binding if ratified Later claimant can’t piggyback on Later claimant can’t piggyback on

timely claimtimely claim

Claims – Mandatory ContentsClaims – Mandatory Contents

(a) Name and post office (a) Name and post office address of claimantaddress of claimant

(b) Post office address for (b) Post office address for noticesnotices

If (a) and(b) omitted, no waiver If (a) and(b) omitted, no waiver by failure to respond to claimby failure to respond to claim

Claims – Mandatory Contents Claims – Mandatory Contents Cont’dCont’d (c) The date, place and other (c) The date, place and other

circumstances of the occurrence or circumstances of the occurrence or transaction which gave rise to the claim transaction which gave rise to the claim asserted.asserted.

(d) A general description of the (d) A general description of the indebtedness, obligation, injury, damage or indebtedness, obligation, injury, damage or loss incurred so far as it may be known at loss incurred so far as it may be known at the time of presentation of the claim. the time of presentation of the claim.

These two items shape rest of lawsuit. These two items shape rest of lawsuit. Crucial to theories that can be asserted in Crucial to theories that can be asserted in

subsequent lawsuit.subsequent lawsuit. Early opportunity to persuade defendant Early opportunity to persuade defendant

that case has meritthat case has merit

Claims – Mandatory Contents Claims – Mandatory Contents Cont’dCont’d (e) The name or names of the public (e) The name or names of the public

employee or employees causing the employee or employees causing the injury, damage, or loss, if known. injury, damage, or loss, if known.

Claim necessary to sue public Claim necessary to sue public employee for acts within scope of employee for acts within scope of dutyduty

Claim goes to public employer, not Claim goes to public employer, not employeeemployee

Failure to name affects ability to Failure to name affects ability to “Doe” in employee later“Doe” in employee later

Mandatory Claim Contents Mandatory Claim Contents Cont’dCont’d

(f) Prayer:(f) Prayer: -- If less than $10,000, amount-- If less than $10,000, amount -- If more than $10,000, whether -- If more than $10,000, whether

lawsuit would be limited civil lawsuit would be limited civil casecase

Proper RecipientProper Recipient

Local public entity: clerk, Local public entity: clerk, secretary, auditor, governing secretary, auditor, governing bodybody

State: Victim Compensation State: Victim Compensation and Government Claims Board and Government Claims Board

Judicial Entity: Different rules Judicial Entity: Different rules depending on entitydepending on entity

For all: Different rules for For all: Different rules for mailing vs. delivery in personmailing vs. delivery in person

Substantial Compliance vs. Substantial Compliance vs. “Claims as Presented”“Claims as Presented”

Substantial Compliance:Substantial Compliance: -- All mandatory elements -- All mandatory elements

presentpresent -- Minor error-- Minor error -- Improper recipient: Actual -- Improper recipient: Actual

receipt within claim periodreceipt within claim period

Substantial Compliance vs. Substantial Compliance vs. “Claims as Presented”“Claims as Presented” ““Claims as Presented”Claims as Presented” -- document that serves same purpose as -- document that serves same purpose as

claimclaim -- gives notice that demand exists that if -- gives notice that demand exists that if

not honored will result in lawsuitnot honored will result in lawsuit -- if no notice of insufficiency or notice of -- if no notice of insufficiency or notice of

untimeliness, those defenses waiveduntimeliness, those defenses waived Exception: Exception: omitted address of claimant or

notice recipient Exception: Incorrect recipient Exception: Incorrect recipient

Late Claim Relief -- Late Claim Relief -- ApplicationApplication To entity – same recipients as claimTo entity – same recipients as claim Timely application jurisdictional Timely application jurisdictional

prerequisite to relief from courtprerequisite to relief from court Must state reason for delay (should Must state reason for delay (should

also provide proof)also provide proof) If more than 1 year: show grounds If more than 1 year: show grounds

for tolling (statutory or estoppel)for tolling (statutory or estoppel) Attach proposed claimAttach proposed claim

Late Claim Relief -- Late Claim Relief -- ApplicationApplication

If granted: Attached claim If granted: Attached claim deemed presented on day of deemed presented on day of grantinggranting

If denied: Notice directing If denied: Notice directing claimant to petition courtclaimant to petition court

Late Claim Relief: Petition to Late Claim Relief: Petition to CourtCourt Not appeal; trial court makes Not appeal; trial court makes

independent determinationindependent determination Special ProceedingSpecial Proceeding File in court that would be proper for File in court that would be proper for

lawsuit if petition grantedlawsuit if petition granted Motion format and rules: Notice of Motion format and rules: Notice of

hearing; Memorandum of P’s & A’s; hearing; Memorandum of P’s & A’s; declarations and exhibits; servicedeclarations and exhibits; service

Late Claim Relief -- PetitionLate Claim Relief -- Petition

Show (don’t just allege – prove Show (don’t just allege – prove by preponderance of evidence):by preponderance of evidence):

-- Application timely made and -- Application timely made and denieddenied

-- Statutory ground for relief-- Statutory ground for relief Include mandatory contents of Include mandatory contents of

claimclaim


Opposition:Opposition: -- Same rules & format as motion -- Same rules & format as motion

oppositionopposition -- Include memorandum of P’s & A’s-- Include memorandum of P’s & A’s -- Include proof by declaration & -- Include proof by declaration &

exhibitsexhibits -- Show prejudice if appropriate-- Show prejudice if appropriate -- Discovery?-- Discovery?


Hearing:Hearing: -- No jury-- No jury -- Live testimony: Rare, but -- Live testimony: Rare, but

court can permitcourt can permit -- No jurisdiction to determine if -- No jurisdiction to determine if

claim actually timelyclaim actually timely


Order granting:Order granting: -- Not permission to file late claim; -- Not permission to file late claim;

relief from having to present claimrelief from having to present claim -- Complaint within 30 days -- Complaint within 30 days

(premature ok)(premature ok) -- Not appealable; writ challenge only-- Not appealable; writ challenge only -- Can challenge in main action on -- Can challenge in main action on

jurisdictional grounds (demurrer or jurisdictional grounds (demurrer or msj)msj)


Order denyingOrder denying -- Appealable-- Appealable -- If claim’s untimeliness -- If claim’s untimeliness

undisputed, action barredundisputed, action barred -- If untimeliness disputed -- If untimeliness disputed

(discovery standard of accrual), (discovery standard of accrual), can file suit; date of accrual can file suit; date of accrual becomes issue in suitbecomes issue in suit

Grounds for Late Claim Relief Grounds for Late Claim Relief – Mandatory– Mandatory

Relief only mandatory if Relief only mandatory if application timelyapplication timely

Claimant’s death during claim Claimant’s death during claim period (survival statute action)period (survival statute action)

Claimant’s minority throughout Claimant’s minority throughout claim peridclaim perid

Grounds for Late Claim Relief Grounds for Late Claim Relief -- Discretionary-- Discretionary Incapacity that prevents timely Incapacity that prevents timely

claimclaim -- Requires nonconclusory -- Requires nonconclusory

medical evidencemedical evidence -- Can’t pick up phone to contact -- Can’t pick up phone to contact

attorneyattorney -- Claimant’s incapacity can’t -- Claimant’s incapacity can’t

excuse attorney’s delay in excuse attorney’s delay in presenting claimpresenting claim

Grounds for Late Claim Relief Grounds for Late Claim Relief -- Discretionary-- Discretionary Mistake, inadvertence, surprise or Mistake, inadvertence, surprise or

excusable neglectexcusable neglect -- Must be no prejudice to public -- Must be no prejudice to public

entityentity -- Same standards as CCP 473 -- Same standards as CCP 473

(except no mandatory relief)(except no mandatory relief) --Must show reasonable diligence--Must show reasonable diligence --Must have attempted to obtain --Must have attempted to obtain

attorney within claim periodattorney within claim period -- Caselaw shows where excusable -- Caselaw shows where excusable

neglect found and not foundneglect found and not found

EstoppelEstoppel

Nonstatutory ground for reliefNonstatutory ground for relief Can assert in lawsuitCan assert in lawsuit Petition?Petition? Intimidating conduct (if prevented timely Intimidating conduct (if prevented timely

reporting)reporting) Misrepresentation of factMisrepresentation of fact Misrepresentation of law – only if:Misrepresentation of law – only if: -- Claimant unrepresented;-- Claimant unrepresented; -- Misrepresentation intentional; or-- Misrepresentation intentional; or -- Confidential relationship with claimant-- Confidential relationship with claimant

Complaint TimelinessComplaint Timeliness

No relief for late complaintNo relief for late complaint Entitlement to late claim relief Entitlement to late claim relief

won’t excuse untimely complaintwon’t excuse untimely complaint CCP tolling inappplicableCCP tolling inappplicable Limited tolling:Limited tolling: -- Exhaustion of other remedies-- Exhaustion of other remedies -- Appeal of denial of petition-- Appeal of denial of petition

Complaint PleadingComplaint Pleading

No “Doe-ing” in public entitiesNo “Doe-ing” in public entities Must specifically plead facts Must specifically plead facts

showing statutory grounds for showing statutory grounds for liabilityliability

Must plead compliance with or Must plead compliance with or excuse from claim requirementsexcuse from claim requirements

Theories of recovery must be Theories of recovery must be fairly reflected in claimfairly reflected in claim

Answer PleadingAnswer Pleading

Need not verify even if Need not verify even if complaint verifiedcomplaint verified

Plead immunities as affirmative Plead immunities as affirmative defenses; identify statutesdefenses; identify statutes

Plead SOL as affirmative Plead SOL as affirmative defense; identify statutesdefense; identify statutes

Plead lack of compliance with Plead lack of compliance with claim statute?claim statute?

Documents

Government Tort Liability: Claims and Pleading. Basic Concepts Prelitigation claim required to sue under state law for damages Prelitigation claim required