This action might not be possible to undo. Are you sure you want to continue?
By Barbara Haubrich, ACP/CAS
Introduction: State, county, or local government liability in California is governed by a maze of unique rules to follow prior to filing a lawsuit. In most circumstances, a government entity can be sued for the acts of its employees as if the misconduct had been committed by a private individual. With very limited exceptions, no lawsuit for money damages may be brought against a public entity unless a written Claim has been properly served on the entity, and the Claim is either formally rejected or deemed rejected by the passage of time. The procedure and time limits for filing a Claim begins at Gov. Code § 900, and is referred to as the California Tort Claims Act. It is important to know that a public entity will only be liable when the State 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 from filing a late Claim, and proper service of the Claim. This article does not discuss Claims against the Federal government, which is governed by the Federal Tort Claims Act. Purpose: The purpose of the California Tort Claims Act 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.” [City of San Jose v. Sup.Ct. (1974) 12 Cal 3d 447, 455] It also enables the public entity to engage in fiscal planning for potential liabilities, and to avoid similar liabilities in the future. [Lozada v. 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 or to personal property shall be presented no later than six months after the “accrual” of the cause of action. All Claims must be presented within one year. [Gov. Code § 911.2] Please keep in mind that a plaintiff who is a minor does not extend the time limit for presentation of a Claim against a public entity. B. Accrual Date: For the purpose of computing the time limits, the date of the accrual of a cause of action is the date that the cause of action would be deemed to have accrued if there were no requirement that a Claim be presented. [Gov. Code § 901] For the most part, actions “accrue” on the date of injury, such as in a personal injury action. [CCP § 335.1] Other actions “accrue” when the injury is discovered, like in a medical malpractice action. [CCP § 340.5] In some situations, the accrual date is delayed based on late discovery of the cause of action, such as in a road design or defective roadway cause of action. Although the plaintiff was aware of the injury date, the cause of action accrues when the plaintiff first became aware, or through reasonable diligence could have become 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]
C. Time to Act on Claim: Once the Claim is presented, the public entity must act on the Claim within 45 days, and provide written notice of the action taken. [Gov. Code § 912.4] Upon presentation of 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 has additional 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 rejected by 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 its inaction, which is deemed a rejection. [Gov. Code § 913] Failure to give written notice within 45 days from the date the Claim is presented waives the public entity's defense that the Claim was untimely. [Gov. Code § 911.3(b)] F. Form of Notice: The notice must warn the claimant of the 6–month statute of limitations to file a lawsuit after rejection. [Gov. Code § 913(b)] The failure to include this warning extends time for filing a lawsuit to 2 years from time of accrual. [Gov Code § 945.6; County of Alameda v. Superior Court, (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 sixmonth limit for filing a lawsuit. [Childs v State, (1983) 144 Cal.App.3d 155, 160; Edgington v County of 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 the passage of time, you have only six months to file a lawsuit. [Gov. Code § 913]
When calculating a statute of limitations, always favor the most conservative calculation. Once the 45 days has lapsed for a public entity to act on the Claim, treat the Claim as deemed rejected by operation of law 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 the Claim, 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): Last day to serve Claim on public entity. 45 days from service of Claim or date of actual formal notice: First day to file Complaint with the court against the public entity. 180 days from service of Claim or date of actual formal notice (if 180 days falls on a weekend or holiday, calculate the date backward to Friday rather than forward to Monday): Last day to file Complaint with the court against the public entity.
Is the Defendant a Public Entity? There are few exceptions, but the claims filing statute applies to claims against every public entity in California. These include, but are not limited to, the State and every political subdivision; every agency and department; and every special purpose district, such as public schools, public hospitals, and public transportation. [Gov. Code § 900 et seq.]
Sometimes it is difficult to determine if a defendant is a public entity. If you are unsure whether the defendant is a public entity, you can: Check the agency’s website; Check the “Roster of Public Agencies” in the county clerk’s office or the Secretary of State’s 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 the actual Complaint that will be filed with the court. Failure to allege facts in the Complaint showing compliance with the Claim’s statute is grounds for a Demurrer. [State of Calif. V. Sup. Ct. (2004) 32 Cal.4th 1234, 1239] Additionally, causes of action not included in the Claim that are then later included in the Complaint can be challenged in a Demurrer. [Fall River Joint Unified Sch. Dist. v Superior 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 all of 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 be known at the time of the presentation of the Claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds $10,000, no dollar amount shall be included in the Claim. However, it shall indicate whether the Claim would be a limited civil case.” [Gov. Code § 910]
Many governmental agencies provide their own forms specifying the required information. Be sure to utilize the provided forms because some agencies will return a Claim for insufficiency if the appropriate 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 by mail. [Gov. Code § 915] If the Claim is mailed, the Claim is deemed presented and received when mailed. [Gov Code § 915.2]
Attach a proof of service to the Claim with the manner of service under declaration of penalty of perjury. It is also a good idea to mail the Claim by certified mail, return receipt requested. Fees: Don’t forget your fees! Some public entitles require a fee to file the Claim. Be sure to confirm whether a fee is required with the filing of the Claim. If the Claim is against the State, or a State agency, it must be accompanied by a $25 fee unless the claimant qualifies for filing in forma pauperis. [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 public employee. [Gov Code § 950.2] Conclusion: At the time that an attorney is hired by a client, it is very important to determine if any potential defendant is a public entity, and then track the date for the filing of the Claim. In addition, there are some circumstances where the filing requirements of a Claim are excused or estopped. All statutes of limitation are subject to change, and should be carefully evaluated when calculating these very important 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 of The 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 of Deadline 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 email.
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 Litigator is 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.