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.

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:

• Physical Injuries and any other type of personal injury
• 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
• Contracts
• Damage to real and personal property
• Statutory Actions (i.e. employee’s wrongful injury action against a third party in employer’s subrogation action)
• Class Actions
• Subrogation Actions
• Indemnification Actions

However, there are exceptions under the law:

• Claims related to tax matters and assessments. Gov. Code §905(a), (h).
• 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).
• Claims concerning the creation of pedestrian malls. Gov. Code §905(l).
• 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.

• Must be presented within six months of the cause of action accrues.
• 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.[/one_half]
• The claimant may use the Agency’s form or their own that meets Cal. Gov. Code §§910 and 910.2.
• 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:

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).

There are 5 options for the Agency to respond to a claim:

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.

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:

• If the claimant’s failure to timely present a claim was caused by a mistake, inadvertence, surprise, or excusable neglect.  However, if the Agency was not prejudiced in its defense by the failure to present a timely claim, it is not required to grant the application (Cal. Gov. Code 911.6(b)(1)).
• 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.
• The agency is allowed 45 days after presentation of the application within which to grant or deny it, and the period may be extended by a written agreement made before the period expires (Cal. Gov. Code 911.6(a)).
• 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.