Government Tort Liability: Claims and Pleading

Basic Concepts Prelitigation claim required to sue under state law for damages Prelitigation claim required to sue under state law for damages Need both timely complaint and timely claim (or excuse) Need both timely complaint and timely claim (or excuse) Government Code time limits trump CCP SOLs Government Code time limits trump CCP SOLs Late Claim Relief Available for six- month claims Late Claim Relief Available for six- month claims No Claim = No Cause of Action No Claim = No Cause of Action

Deadlines Accrual same as for COA against private defendant Accrual same as for COA against private defendant Claim for death, injury, personal property, crops: 6 months from accrual Claim for death, injury, personal property, crops: 6 months from accrual Claim for anything else: 1 year Claim for anything else: 1 year

Deadlines Cont’d Entity response: Entity response: -- Notice of insufficiency: 20 days from presentation; can’t act for 15 days -- Notice of insufficiency: 20 days from presentation; can’t act for 15 days -- Act on claim: 45 days -- Act on claim: 45 days -- After 45 days, denied by operation of law -- After 45 days, denied by operation of law -- Can serve denial on merits at any time -- Can serve denial on merits at any time -- Notice of untimeliness (for claims w/o application): Within 45 days -- Notice of untimeliness (for claims w/o application): Within 45 days

Deadlines Cont’d Amendment: Before Amendment: Before -- Claim presentation deadline or -- Claim presentation deadline or -- Final action on claim -- Final action on claim Whichever is later Whichever is later

Deadlines Cont’d Late Claim Relief (6 month claims): Late Claim Relief (6 month claims): -- Late-Claim Application to Entity: Reasonable Time < year (unless tolled) -- Late-Claim Application to Entity: Reasonable Time < year (unless tolled) -- Petition to Court: 6 months after application denial -- Petition to Court: 6 months after application denial

Deadlines Cont’d Statutes of Limitations (filing complaint): Statutes of Limitations (filing complaint): -- Notice of denial w/ 6 month warning: 6 months from mailing or delivery of notice -- 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 -- No or defective 6 month warning: 2 years from accrual Late-claim petition to court granted: 30 days from order Late-claim petition to court granted: 30 days from order

Deadlines Cont’d All deadlines stemming from response to claim or notice extended by mailing claim or notice All deadlines stemming from response to claim or notice extended by mailing claim or notice (Exception for 6-month SOL?) (Exception for 6-month SOL?) Claimants’ deadlines run from action or mailing – not receipt of notice Claimants’ deadlines run from action or mailing – not receipt of notice Claimant obliged to check status if no news Claimant obliged to check status if no news

Claims – Who Can Present Claimant Claimant Person presenting on claimant’s behalf: Person presenting on claimant’s behalf: -- Attorney -- Attorney -- Guardian or conservator -- Guardian or conservator -- Anyone else -- Anyone else Unauthorized claim binding if ratified Unauthorized claim binding if ratified Later claimant can’t piggyback on timely claim Later claimant can’t piggyback on timely claim

Claims – Mandatory Contents (a) Name and post office address of claimant (a) Name and post office address of claimant (b) Post office address for notices (b) Post office address for notices If (a) and(b) omitted, no waiver by failure to respond to claim If (a) and(b) omitted, no waiver by failure to respond to claim

Claims – Mandatory Contents Cont’d (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. (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. (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. These two items shape rest of lawsuit. Crucial to theories that can be asserted in subsequent lawsuit. Crucial to theories that can be asserted in subsequent lawsuit. Early opportunity to persuade defendant that case has merit Early opportunity to persuade defendant that case has merit

Claims – Mandatory Contents Cont’d (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. (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 necessary to sue public employee for acts within scope of duty Claim goes to public employer, not employee Claim goes to public employer, not employee Failure to name affects ability to “Doe” in employee later Failure to name affects ability to “Doe” in employee later

Mandatory Claim Contents Cont’d (f) Prayer: (f) Prayer: -- If less than $10,000, amount -- If less than $10,000, amount -- If more than $10,000, whether lawsuit would be limited civil case -- If more than $10,000, whether lawsuit would be limited civil case

Proper Recipient Local public entity: clerk, secretary, auditor, governing body Local public entity: clerk, secretary, auditor, governing body State: Victim Compensation and Government Claims Board State: Victim Compensation and Government Claims Board Judicial Entity: Different rules depending on entity Judicial Entity: Different rules depending on entity For all: Different rules for mailing vs. delivery in person For all: Different rules for mailing vs. delivery in person

Substantial Compliance vs. “Claims as Presented” Substantial Compliance: Substantial Compliance: -- All mandatory elements present -- All mandatory elements present -- Minor error -- Minor error -- Improper recipient: Actual receipt within claim period -- Improper recipient: Actual receipt within claim period

Substantial Compliance vs. “Claims as Presented” “Claims as Presented” “Claims as Presented” -- document that serves same purpose as claim -- document that serves same purpose as claim -- gives notice that demand exists that if not honored will result in lawsuit -- 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 -- if no notice of insufficiency or notice of untimeliness, those defenses waived Exception: Exception: omitted address of claimant or notice recipient Exception: Incorrect recipient Exception: Incorrect recipient

Late Claim Relief -- Application To entity – same recipients as claim To entity – same recipients as claim Timely application jurisdictional prerequisite to relief from court Timely application jurisdictional prerequisite to relief from court Must state reason for delay (should also provide proof) Must state reason for delay (should also provide proof) If more than 1 year: show grounds for tolling (statutory or estoppel) If more than 1 year: show grounds for tolling (statutory or estoppel) Attach proposed claim Attach proposed claim

Late Claim Relief -- Application If granted: Attached claim deemed presented on day of granting If granted: Attached claim deemed presented on day of granting If denied: Notice directing claimant to petition court If denied: Notice directing claimant to petition court

Late Claim Relief: Petition to Court Not appeal; trial court makes independent determination Not appeal; trial court makes independent determination Special Proceeding Special Proceeding File in court that would be proper for lawsuit if petition granted 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 Motion format and rules: Notice of hearing; Memorandum of P’s & A’s; declarations and exhibits; service

Late Claim Relief -- Petition Show (don’t just allege – prove by preponderance of evidence): Show (don’t just allege – prove by preponderance of evidence): -- Application timely made and denied -- Application timely made and denied -- Statutory ground for relief -- Statutory ground for relief Include mandatory contents of claim Include mandatory contents of claim

Late Claim Relief -- Petition Opposition: Opposition: -- Same rules & format as motion opposition -- Same rules & format as motion opposition -- Include memorandum of P’s & A’s -- Include memorandum of P’s & A’s -- Include proof by declaration & exhibits -- Include proof by declaration & exhibits -- Show prejudice if appropriate -- Show prejudice if appropriate -- Discovery? -- Discovery?

Late Claim Relief -- Petition Hearing: Hearing: -- No jury -- No jury -- Live testimony: Rare, but court can permit -- Live testimony: Rare, but court can permit -- No jurisdiction to determine if claim actually timely -- No jurisdiction to determine if claim actually timely

Late Claim Relief -- Petition Order granting: Order granting: -- Not permission to file late claim; relief from having to present claim -- Not permission to file late claim; relief from having to present claim -- Complaint within 30 days (premature ok) -- Complaint within 30 days (premature ok) -- Not appealable; writ challenge only -- Not appealable; writ challenge only -- Can challenge in main action on jurisdictional grounds (demurrer or msj) -- Can challenge in main action on jurisdictional grounds (demurrer or msj)

Late Claim Relief -- Petition Order denying Order denying -- Appealable -- Appealable -- If claim’s untimeliness undisputed, action barred -- If claim’s untimeliness undisputed, action barred -- If untimeliness disputed (discovery standard of accrual), can file suit; date of accrual becomes issue in suit -- If untimeliness disputed (discovery standard of accrual), can file suit; date of accrual becomes issue in suit

Grounds for Late Claim Relief – Mandatory Relief only mandatory if application timely Relief only mandatory if application timely Claimant’s death during claim period (survival statute action) Claimant’s death during claim period (survival statute action) Claimant’s minority throughout claim perid Claimant’s minority throughout claim perid

Grounds for Late Claim Relief -- Discretionary Incapacity that prevents timely claim Incapacity that prevents timely claim -- Requires nonconclusory medical evidence -- Requires nonconclusory medical evidence -- Can’t pick up phone to contact attorney -- Can’t pick up phone to contact attorney -- Claimant’s incapacity can’t excuse attorney’s delay in presenting claim -- Claimant’s incapacity can’t excuse attorney’s delay in presenting claim

Grounds for Late Claim Relief -- Discretionary Mistake, inadvertence, surprise or excusable neglect Mistake, inadvertence, surprise or excusable neglect -- Must be no prejudice to public entity -- Must be no prejudice to public entity -- Same standards as CCP 473 (except no mandatory relief) -- Same standards as CCP 473 (except no mandatory relief) --Must show reasonable diligence --Must show reasonable diligence --Must have attempted to obtain attorney within claim period --Must have attempted to obtain attorney within claim period -- Caselaw shows where excusable neglect found and not found -- Caselaw shows where excusable neglect found and not found

Estoppel Nonstatutory ground for relief Nonstatutory ground for relief Can assert in lawsuit Can assert in lawsuit Petition? Petition? Intimidating conduct (if prevented timely reporting) Intimidating conduct (if prevented timely reporting) Misrepresentation of fact Misrepresentation 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 Timeliness No relief for late complaint No relief for late complaint Entitlement to late claim relief won’t excuse untimely complaint Entitlement to late claim relief won’t excuse untimely complaint CCP tolling inappplicable CCP 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 Pleading No “Doe-ing” in public entities No “Doe-ing” in public entities Must specifically plead facts showing statutory grounds for liability Must specifically plead facts showing statutory grounds for liability Must plead compliance with or excuse from claim requirements Must plead compliance with or excuse from claim requirements Theories of recovery must be fairly reflected in claim Theories of recovery must be fairly reflected in claim

Answer Pleading Need not verify even if complaint verified Need not verify even if complaint verified Plead immunities as affirmative defenses; identify statutes Plead immunities as affirmative defenses; identify statutes Plead SOL as affirmative defense; identify statutes Plead SOL as affirmative defense; identify statutes Plead lack of compliance with claim statute? Plead lack of compliance with claim statute?