Litigating Against a Public Entity
Avoid the most common errors that plaintiff practitioners make when suing public entities
By JEFFREY T. MELCHING
A potential client calls asking for representation in a lawsuit against a city because
she recently tripped on a four-inch crack in a public sidewalk and dislocated her
hip.
Or perhaps she was injured when a stoplight malfunctioned, or when the city failed
to honor a contract with her.
After completing the initial client interview and checking your conflicts of interest
database, you review Code of Civil Procedure §335, et seq., to make sure the
statute of limitations has not expired, then draft, file and serve a complaint on the city, and wait
for an answer to arrive.
Right?
Wrong.
The first thing you need to know about suing public entities and their employees is that many of
the usual rules for general civil lawsuits do not apply: A whole host of immunities, restrictions
on legal theories, claim presentation requirements, statutes of limitations and unique procedural
and pleading rules must be considered and addressed. For the most part, these additional rules
appear in what is commonly referred to as the “Tort Claims Act,” Government Code §§810, et
seq. (the “Act”).
As you prepare your lawsuit and meander your way through the Act, you will be confronted with
five basic questions:
Are you seeking relief against a person or entity covered by the Act?
Are you pursuing the kind of relief and/or cause of action covered by the Act?
Can you identify a statutory basis for liability?
Are there any applicable public entity or public employee immunities? and
n How do you go about timely and correctly presenting an administrative claim, and then filing a
complaint against, a public entity? In the typical case, if you consider and address each of these
questions, you will avoid many of the most common pitfalls of those who pursue claims against
public entities.
Entities and persons covered
The Act covers claims against “local public entities,” the “state,” and “public employees.” Public
entities include all counties, cities, districts, public authorities, public agencies and all political
subdivisions or public corporations of the state. The state is defined as any office, officer,
department or division of the state. Public employees include officers, judicial officers,
employees and servants, whether or not compensated.
Because these definitions are so broad, it is best to assume that unless, and until, you find
specific authority to the contrary, all government entities, their officers and their employees are
protected by the claims requirements and limitations on actions provided under the Act.
Claims covered
Although it is generally referred to as the “Tort Claims Act,” the Act covers more than just torts.
It covers all claims for money or damages, regardless of whether they are based upon tort,
contract, or any other legal right or theory. From this broad rule, however, there are several
significant exceptions.
Most notably, the Act does not apply to actions for federal civil rights violations under 42 U.S.C.
§1983. For example, federal constitutional claims for allegedly illegal restrictions on adult
bookstores (free speech violations) or racial discrimination (denial of equal protection) are
exempt from the Act. The Act also includes specific statutory exclusions for workers’
compensation and inverse condemnation actions, among others.
Also outside the scope of the Act are lawsuits where the relief sought is not money or damages.
Thus, when the plaintiff primarily seeks injunctive, declaratory or mandamus relief, it is usually
not necessary to satisfy the claim presentation requirement or otherwise comply with the Act.
Statutory basis for liability
The starting point for establishing liability under the Act is §815(a) which mandates that, except
as otherwise provided by statute, a public entity is not liable for an injury, whether such injury
arises out of an act or omission of the public entity of a public employee, or any other person. In
other words, the Act abolished common law liability, and, in its place, provided numerous
statutory bases for pursuing claims against public entities.
The most common of these bases is found in §815.2, which allows suits based on injuries caused
by the acts or omissions of public employees. To establish this “vicarious liability,” a plaintiff
must demonstrate each of the following three conditions: (a) the individual causing the injury is
an employee; (b) the employee’s conduct is within the scope of his or her employment; and (c)
the employee’s act or omission gives rise to a cause of action against that employee. If the
elements of vicarious liability can be established, the public entity may still avail itself of any
defense that would be available to a private person. For example, a public entity can utilize the
doctrine of comparative negligence in defending an action based on an injury caused by its
employee.
In addition to defenses, the general rule is that a public employee’s immunity is imputed to his or
her public entity employer. Those employee immunities supplement the independent immunities
that are, in all cases under the Act, always available to public entities. It is critical to recognize
that the immunities provided to public entities are in some instances more expansive than the
immunities afforded to employees. As an example, the fraud immunity for public employees —
which does not apply to claims of actual fraud, corruption, and actual malice — is narrower than
the fraud immunity for public entities, which covers all injuries caused by the negligent or
intentional misrepresentations of an employee.
In addition to vicarious liability, the public entity may be directly liable for its own tortious acts.
For example, a public entity may be directly liable for its failure to discharge a “mandatory duty”
— which is an enactment designed to prevent a particular kind of injury. Typical examples of a
failure to discharge a mandatory duty include neglecting to confirm that a building permit
applicant carries workers’ compensation insurance and is a properly licensed contractor, or
failing to discharge a prisoner after dismissal of all pending charges. In cases of mandatory duty
liability, public entities may rely on any defense that would be available to a private person or
entity but may not utilize any of the public employee immunities.
Public entities may also be liable for dangerous conditions of public property. Under §835,
dangerous condition liability exists if the plaintiff establishes that the property was in a
dangerous condition at the time of the injury, that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred, and that either (a) the dangerous
condition was caused by a negligent or wrongful act or omission of a public employee, or (b) the
public entity had actual or constructive notice of the dangerous condition a sufficient time prior
to the injury to have taken measures to protect against the dangerous condition. If these elements
are satisfied, a public entity may still utilize any of several immunities specific to dangerous
condition cases, such as the design immunity and the weather immunity, to avoid liability.
Other statutes, both inside and outside the Act, also impose liability on public entities. When the
statute is outside the Act, it must, as a general rule, specifically apply to public entities, not
merely provide a general statement of law. For example, Civil Code §1714’s general provision
relating to liability for negligence does not serve as a basis for public entity liability. One should
note that the rule against using statutes of general application has a significant exception: The
courts have found that nuisance claims under Civil Code §3479 can be stated against a public
entity under the Act, even though that statute does not specifically apply to public entities.
Immunities
The Act provides public officials and employees with a broad range of immunities. Some of the
immunities — such as the immunity from injuries resulting from the exercise of discretion vested
in a public official — apply generally to all types of claims. Others, however, are geared to
specific circumstances, such as police or fire protection activities, administration of tax laws and
activities to abate an impending peril, among others.
There are additional statutory immunities that are found outside the Act, including the
emergency services immunity (Gov. Code, §§8655, et seq.), the vehicle pursuit immunity
(Vehicle Code, §17004.7), and the immunity provided by Civil Code §47 from defamation
actions arising from a “publication or broadcast” made during the proper discharge of an official
duty during a legislative proceeding.
Before presenting a claim and filing a complaint, it is essential that you research all of the
potentially applicable immunities and fashion your pleadings appropriately. Public entity
attorneys tend to be very familiar with the immunity provisions and rarely skip an opportunity to
file a case-dispositive demurrer or motion for summary judgment that could have been avoided if
the pleadings were more carefully drafted.
Preparation of a claim
If you have determined that your client may have a cause of action that is subject to the Act, you
will need to prepare and submit a claim to the public entity before you file a lawsuit. The time
frame for presentation of a claim to the public entity is governed by §911.2, which requires that
claims for personal injury, death, injury to personal property and to growing crops must be
submitted within six months of their accrual. All other claims must be submitted within a year.
The required content of the claim is governed by §§910 and 910.2. A cautious attorney should
carefully review these sections to ensure that all of the required information is included. As a
practical matter, it may also be wise to use the public entity’s preprinted claim form so that you
can avoid later challenges to the adequacy of the content of the claim.
Once the claim is completed, it should be presented to the local agency by delivering or mailing
it to the clerk, secretary or auditor of the local agency at its principal place of business. If mailed,
the claim is treated as presented on the date of mailing. If presented to the state, the claim must
be delivered or mailed to the State Board of Control at its principal office.
Action on the claim
If a claim is timely and properly filed, the agency has 45 days to allow or reject the claim. If it
takes no action within that time period, the claim is deemed denied.
Typically, claims are denied. When it is denied, either by action or inaction, the public entity
should send the claimant a notice of denial as required by §913. This will start a six-month
statute of limitations under §945.6, which begins to run when the notice is personally delivered
to the claimant, or the date the notice is deposited in the mail. If no notice is sent, the complaint
must be filed within two years of accrual of the cause of action.
Filing a complaint
The Act does not contain any specific pleading requirements. However, case law has established
that plaintiffs in actions against public entities must plead with particularity, showing every fact
essential to establish statutory liability and to avoid any applicable immunities. Cases further
hold the complaint must include a statement of compliance with the Act’s claims procedure, or a
statement that the claims procedure is inapplicable. Finally, the factual theories alleged in the
complaint must correspond to those set forth in the claim.
Of course, many additional practical and legal issues must be addressed in lawsuits against
public entities, such as dealing with Joint Powers Insurance Authorities, understanding the
defense and indemnification protocols that cities utilize on behalf of their employees, and
avoiding the pitfalls of the various discovery privileges that are unique to public entities. But if
you have followed the steps and considered the issues outlined above, you are well on your way
to avoiding many of the most common errors that plaintiffs’ practitioners make when suing
public entities.
Jeffrey T. Melching is an attorney with Rutan & Tucker, LLP, the largest law firm in Orange
County, with one of the largest public law practice groups in the state. His practice focuses on
municipal, land use and environmental law, and he regularly represents public and private
clients in lawsuits under the Tort Claims