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 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 six-
month 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]

Tips
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.]
 Tips
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]

Tip
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]
 Tip
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 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 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.