May 4, 2018. Carl Warren Claim Supervisor, Reta Lewis, co-presented with Doug Smith, Smith Law Office, LLP, and Kari Mendoza, City of Beaumont, at the Combined Claims Conference in March. During this Question and Answer Forum presentation, they discussed how virtually all litigants suing a public agency in California must comply with the California Tort Claims Act. They provided a comprehensive overview of the Act, including what the Act means, how it is utilized in litigation involving a public entity, and the impact of non-compliance on a lawsuit. Attendees were given a better understanding of and how to utilize the California Tort Claims Act to better analyze the viability of and the obstacles to claims against a public entity. Below are the questions that were addressed in the presentation.
General Rule: A claim is required to be presented in all actions against a public entity seeking “money or damages”, except when the action is expressly excluded. (See Cal. Gov. Code §905).
It gives the public entity prompt notice of a claim so it can investigate the strengths and weaknesses of the claim while the evidence is still fresh and the witnesses are available;
It affords an opportunity for amicable adjustment, thereby avoiding the expenditure of public funds in needless litigation; and
It informs the public entity of potential liability so it can better prepare for the upcoming fiscal year.
A claim is required to precede all actions against a public entity seeking money or damages, except when the action is expressly excluded (see Cal. Gov. Code 905) such as:
An action against a public employee acting within the scope of employment is barred if the plaintiff has not complied with the claim filing requirements (Cal. Gov. Code 950.2).
The exception is if the plaintiff pleads and proves that he or she neither knew nor should have known, either
(1) the public employee’s involvement; or
(2) the public employee was, in fact, a public employee during the time in which a timely claim could have been filed (Cal. Gov. Code 905.4).
Any document received by a public agency indicating that monetary damages are sought and that litigation may ensue is a claim.
If not all information is provided…
A claimant will not be permitted to proceed on a theory of liability in the lawsuit which is not fairly reflected in the claim.
A claimant must make an effort to supply each of the essential elements of a claim. Substantial compliance is met when the claim contains sufficient information to reasonably enable the Agency to make an adequate investigation of the merits of the claim. (Loehr v. Ventura Community College District (1983) 147 Cal.App.3d 1071.).
A public agency is generally allowed 45 days after the claim or amended claim is presented, to take action. If the claim is mailed to the public agency, the agency’s response time is extended as follows:
If the claimant’s address is within California[/tab]1If claimant’s address is outside of California, but within the United States. If the claimant’s address is outside of the United States (Cal. Gov. Code 915.2).
The Do-Nothing Option = Deemed Rejected
If the entity fails to take action on a claim within the period allowed by statute (45 days) or as extended by agreement, the claim is deemed automatically rejected by law on the 45th day or last day of the extended period. If no action is taken, or no notice of action is sent to the claimant, then the time allotted to file a lawsuit is extended two-years from when C/A accrued.
The Approve All or Part of the Claim Option
An agency can either reject or allow a claim, in whole or in part. (Cal. Gov.Code§912.6(a)(3)). If the claim is allowed in whole or in part, or if the agency offers to compromise the claim, it may require that acceptance by the claimant results in full settlement of the claim. (Cal. Gov. Code §912.6(b).)
The Reject the Claim Option
See Gov. Code §913(a) for what goes in Notice. If the claim is rejected in whole or in part, the notice must warn the claimant of the 66-month statute of limitations to sue (Cal. Gov. Code §913(b).). If the claim is rejected, but no notice sent, the statute of limitations to sue is extended to two-years.
The Provide Notice of Insufficiency Option
If the claim does not provide the required information, the entity should give notice of the insufficiency, stating which details are missing. Cal. Gov.Code§910.8. The agency must provide written notice of the missing details within 20 days after the claim is presented. The entity may not take action on a claim for 15 days after sending a notice of insufficiency. (Cal. Gov. Code §910.8.). A claim may be amended at any time before the claim period expires or the entity takes final action on the claim. (Cal. Gov. Code §910.6(a).)
The Provide Notice of Untimely Claim Option
If a claim is not presented within the time allowed, the agency may return the claim without any further action being taken. Notice is to be provided to the claimant using the specified language per Cal. Gov. Code §911.3(a). A notice must be given within 45 days after the claim is presented. Cal. Gov. Code §911.3. Even if the notice of insufficiency has been given, a notice of untimeliness must also be given.
If the claim is not presented in a timely manner or has been rejected as untimely, the claimant must present an application to the agency for leave to present a late claim before commencing a lawsuit (Cal.Gov. Code 945.4 and 946.6). The application must be presented within a reasonable time period not to exceed one year. In calculating the one-year time period, the time during which the claimant is a minor, or is counted, but the time during which the claimant is mentally incapacitated and does not have a guardian or a conservator is not.
The agency must grant the application where one or more of the following is applicable:
Once the public agency has denied the late claim application, the claimant may file a petition with the court to be relieved from the claims requirement (Cal. Gov. Code 946.6(e)). Although the grounds for relief are the same as on an application, the claimant may present entirely different grounds in the petition, although such grounds might be subject to a defense of waiver. The petition must be filed within six (6) months after the time of application is denied (Cal Gov. Code 946.6(b)). The petitioner bears the burden of proof for granting the petition. If the petition is granted, the claimant must file suit within 30 days (Cal Gov. Code 946.6(f)). An order granting a petition is not appealable but may be reviewed by a petition for writ of mandate. An order denying a petition is an appealable order.