Government Tort
Liability:
Claims and Pleading
Basic Concepts
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Prelitigation claim required to sue
under state law for damages
Need both timely complaint and
timely claim (or excuse)
Government Code time limits trump
CCP SOLs
Late Claim Relief Available for sixmonth claims
No Claim = No Cause of Action
Deadlines
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Accrual same as for COA
against private defendant
Claim for death, injury, personal
property, crops: 6 months from
accrual
Claim for anything else: 1 year
Deadlines Cont’d
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Entity response:
-- Notice of insufficiency: 20 days
from presentation; can’t act for 15
days
-- Act on claim: 45 days
-- After 45 days, denied by operation
of law
-- Can serve denial on merits at any
time
-- Notice of untimeliness (for claims
w/o application): Within 45 days
Deadlines Cont’d
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Amendment: Before
-- Claim presentation deadline
or
-- Final action on claim
Whichever is later
Deadlines Cont’d
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Late Claim Relief (6 month
claims):
-- Late-Claim Application to
Entity: Reasonable Time < year
(unless tolled)
-- Petition to Court: 6 months
after application denial
Deadlines Cont’d
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Statutes of Limitations (filing
complaint):
-- Notice of denial w/ 6 month
warning: 6 months from mailing
or delivery of notice
-- No or defective 6 month
warning: 2 years from accrual
Late-claim petition to court
granted: 30 days from order
Deadlines Cont’d
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All deadlines stemming from
response to claim or notice extended
by mailing claim or notice
(Exception for 6-month SOL?)
Claimants’ deadlines run from action
or mailing – not receipt of notice
Claimant obliged to check status if
no news
Claims – Who Can Present
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Claimant
Person presenting on claimant’s
behalf:
-- Attorney
-- Guardian or conservator
-- Anyone else
Unauthorized claim binding if ratified
Later claimant can’t piggyback on
timely claim
Claims – Mandatory Contents
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(a) Name and post office
address of claimant
(b) Post office address for
notices
If (a) and(b) omitted, no waiver
by failure to respond to claim
Claims – Mandatory Contents
Cont’d
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(c) The date, place and other
circumstances of the occurrence or
transaction which gave rise to the claim
asserted.
(d) 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.
These two items shape rest of lawsuit.
Crucial to theories that can be asserted in
subsequent lawsuit.
Early opportunity to persuade defendant
that case has merit
Claims – Mandatory Contents
Cont’d
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(e) The name or names of the public
employee or employees causing the
injury, damage, or loss, if known.
Claim necessary to sue public
employee for acts within scope of
duty
Claim goes to public employer, not
employee
Failure to name affects ability to
“Doe” in employee later
Mandatory Claim Contents
Cont’d
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(f) Prayer:
-- If less than $10,000, amount
-- If more than $10,000, whether
lawsuit would be limited civil
case
Proper Recipient
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Local public entity: clerk,
secretary, auditor, governing
body
State: Victim Compensation
and Government Claims Board
Judicial Entity: Different rules
depending on entity
For all: Different rules for
mailing vs. delivery in person
Substantial Compliance vs.
“Claims as Presented”
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Substantial Compliance:
-- All mandatory elements
present
-- Minor error
-- Improper recipient: Actual
receipt within claim period
Substantial Compliance vs.
“Claims as Presented”
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“Claims as Presented”
-- document that serves same purpose as
claim
-- gives notice that demand exists that if
not honored will result in lawsuit
-- if no notice of insufficiency or notice of
untimeliness, those defenses waived
Exception: omitted address of claimant or
notice recipient
Exception: Incorrect recipient
Late Claim Relief -Application
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To entity – same recipients as claim
Timely application jurisdictional
prerequisite to relief from court
Must state reason for delay (should
also provide proof)
If more than 1 year: show grounds
for tolling (statutory or estoppel)
Attach proposed claim
Late Claim Relief -Application
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If granted: Attached claim
deemed presented on day of
granting
If denied: Notice directing
claimant to petition court
Late Claim Relief: Petition to
Court
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Not appeal; trial court makes
independent determination
Special Proceeding
File in court that would be proper for
lawsuit if petition granted
Motion format and rules: Notice of
hearing; Memorandum of P’s & A’s;
declarations and exhibits; service
Late Claim Relief -- Petition
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Show (don’t just allege – prove
by preponderance of evidence):
-- Application timely made and
denied
-- Statutory ground for relief
Include mandatory contents of
claim
Late Claim Relief -- Petition
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Opposition:
-- Same rules & format as motion
opposition
-- Include memorandum of P’s & A’s
-- Include proof by declaration &
exhibits
-- Show prejudice if appropriate
-- Discovery?
Late Claim Relief -- Petition
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Hearing:
-- No jury
-- Live testimony: Rare, but
court can permit
-- No jurisdiction to determine if
claim actually timely
Late Claim Relief -- Petition
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Order granting:
-- Not permission to file late claim;
relief from having to present claim
-- Complaint within 30 days
(premature ok)
-- Not appealable; writ challenge only
-- Can challenge in main action on
jurisdictional grounds (demurrer or
msj)
Late Claim Relief -- Petition
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Order denying
-- Appealable
-- If claim’s untimeliness
undisputed, action barred
-- If untimeliness disputed
(discovery standard of accrual),
can file suit; date of accrual
becomes issue in suit
Grounds for Late Claim Relief
– Mandatory
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Relief only mandatory if
application timely
Claimant’s death during claim
period (survival statute action)
Claimant’s minority throughout
claim perid
Grounds for Late Claim Relief
-- Discretionary
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Incapacity that prevents timely
claim
-- Requires nonconclusory
medical evidence
-- Can’t pick up phone to contact
attorney
-- Claimant’s incapacity can’t
excuse attorney’s delay in
presenting claim
Grounds for Late Claim Relief
-- Discretionary
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Mistake, inadvertence, surprise or
excusable neglect
-- Must be no prejudice to public
entity
-- Same standards as CCP 473
(except no mandatory relief)
--Must show reasonable diligence
--Must have attempted to obtain
attorney within claim period
-- Caselaw shows where excusable
neglect found and not found
Estoppel
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Nonstatutory ground for relief
Can assert in lawsuit
Petition?
Intimidating conduct (if prevented timely
reporting)
Misrepresentation of fact
Misrepresentation of law – only if:
-- Claimant unrepresented;
-- Misrepresentation intentional; or
-- Confidential relationship with claimant
Complaint Timeliness
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No relief for late complaint
Entitlement to late claim relief
won’t excuse untimely complaint
CCP tolling inappplicable
Limited tolling:
-- Exhaustion of other remedies
-- Appeal of denial of petition
Complaint Pleading
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No “Doe-ing” in public entities
Must specifically plead facts
showing statutory grounds for
liability
Must plead compliance with or
excuse from claim requirements
Theories of recovery must be
fairly reflected in claim
Answer Pleading
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Need not verify even if
complaint verified
Plead immunities as affirmative
defenses; identify statutes
Plead SOL as affirmative
defense; identify statutes
Plead lack of compliance with
claim statute?