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, to include 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 questions that were addressed in the presentation.
Why Present a Tort Claim?
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.
Types of Actions That Require a Claim to be Presented to Public Agencies?
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:
– Intentional torts (a wrongful act or infringement of a right-other than under a contract) leading to civil legal liability or both as to persons and property
– Damage to real and personal property
– Class Actions
– Subrogation Actions
– Indemnification Actions
However, there are exceptions under the law:
– Mechanics and other construction liens. Gov. Code §905(b).
– Claims for salary, expenses, pension benefits, workers’ compensation and employment compensation. Gov. Code §905©, (d), (f), (l).
– Welfare claims. Gov. Code §905(e).
– Claims on bonds, notes or other evidence of indebtedness and other public financing matters. Gov. Code §905(g).
– Claims by public entities. Gov. Code §905(l).
– Claims to penalties withheld on public works projects. Gov. Code§905(k).
– Inverse condemnation actions. Gov. Code §905.1.
– Actions for relief, other than for money or damages, do not require a claim.
– No claim required for action for declaratory relief. Minsky v. Los Angeles (1974)11 Cal.3d 113.
– No claim required for recovery of property seized by the public entity or damages in lieu thereof. Holt v. Kelly (1978) 20 Cal.3d 560.
– Not strictly an exception to the general rule, but outside the scope of the Act.
Claims Against Public Employers
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).
The Statute of Limitations Period
– Claims concerning personal injury, wrongful death, damage to personal property, or damage to crops must be presented within six (6) months of the “accrual of the claim.” Gov. Code 911.2.
– All other claims are subject to a one-year statute of limitations. Gov. Code 911.2. (Contracts/Real prop damage) See Vothv. Wasco Pub. Util. Dist., 56 Cal.App.3d 353 (1976)(contract); Mehlv. People ex relDept. of Public Works, 13 Cal.3d 710 (1975) (flooding of real property).
– Generally, a tort claim accrues and begins the running of the claims period at the same time that a cause of action would accrue, just as if the public entity were a private party. Gov. Code 901, 911.2.
– Without going into all of the various rules of accrual, the usual rules of tolling for minors, incompetents, and prisoners sometimes do not apply to tort claims. Cal. Civ. Proc. Code 352(b), 352.1(b). But this is a complicated area.
– Pursuant to Government Code section 901: “The date upon which a cause of action for equitable indemnity or partial equitable indemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant’s claim for equitable indemnity or partial equitable indemnity against the public entity.” A claim for money damages relating to a cause of action for injury to a person must be filed not later than six months after the date of accrual of the cause of action. (Gov.Code, §§905, 911.2, subd. (a).)
The Process for Presenting a Claim to the Public Agency
Any document received by a public agency indicating that monetary damages are sought and that litigation may ensue is a claim.
– An untimely, or incomplete document simply determines how the claim will be handled. A public agency may only take no action if the document fails to provide any return address.
– A failure to treat the document as a claim will result in a loss of claim defenses. (Cal. Gov. Code §910.8, 911.)
– Agency may provide forms specifying the information Cal. Gov. Code §910.4.
– The claim must be delivered or mailed to the clerk, secretary, auditor, or the governing body of the agency. (See Cal. Gov. Code §915.)
– If it is mailed, the claim is considered “presented” on the date it is deposited in the United States mail, not the date it is received by the agency, if ever. Cal. Gov. Code §915.2.
Information Required in the Claim
1 Name of Claimant
2 Mailing address to which notices should be sent
3 The date, place, and circumstances giving rise to the claim
4 A general description of the injury, damage, or loss for which the claimant seeks payment
5 The name of any public employee causing the loss, if known
6 The amount claimed and the basis of computation if the claim is under $10,000. If the amount is over $10K, no amount is to be included, but the claim must indicate whether the claim would be a limited civil case ($25K or less)(Cal. Gov. Code 910).
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.).
Public Agency’s Response to the Claim
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:
There are 5 options for the Agency to respond to a claim:
When a Claim is Rejected as Untimely
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.
What Must Be Shown to the Public Agency to Grant the Application for Leave to File a Late Claim?
The agency must grant the application where one or more of the following is applicable:
– The claimant was a minor, or was physically or mentally incapacitated, or died before the expiration of the claim period.
– The presumption should be that the application will be denied.
– If granted, the claim is deemed to be presented on the date it is granted (Cal. Gov. Code 912.2).
What Can a Claimant Do When the Public Agency has Denied Their Late Claim Application?
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.