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Government Tort Liability:. Claims and Pleading. Basic Concepts. Prelitigation claim required to sue under state law for damages Need both timely complaint and timely claim (or excuse) Government Code time limits trump CCP SOLs Late Claim Relief Available for six-month claims
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Government Tort Liability: Claims and Pleading
Basic Concepts • Prelitigation claim required to sue under state law for damages • Need both timely complaint and timely claim (or excuse) • Government Code time limits trump CCP SOLs • Late Claim Relief Available for six-month claims • No Claim = No Cause of Action
Deadlines • Accrual same as for COA against private defendant • Claim for death, injury, personal property, crops: 6 months from accrual • Claim for anything else: 1 year
Deadlines Cont’d • Entity response: • -- Notice of insufficiency: 20 days from presentation; can’t act for 15 days • -- Act on claim: 45 days • -- After 45 days, denied by operation of law • -- Can serve denial on merits at any time • -- Notice of untimeliness (for claims w/o application): Within 45 days
Deadlines Cont’d • Amendment: Before • -- Claim presentation deadline or • -- Final action on claim • Whichever is later
Deadlines Cont’d • Late Claim Relief (6 month claims): • -- Late-Claim Application to Entity: Reasonable Time < year (unless tolled) • -- Petition to Court: 6 months after application denial
Deadlines Cont’d • Statutes of Limitations (filing complaint): • -- 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 • 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 • (Exception for 6-month SOL?) • Claimants’ deadlines run from action or mailing – not receipt of notice • Claimant obliged to check status if no news
Claims – Who Can Present • Claimant • Person presenting on claimant’s behalf: • -- Attorney • -- Guardian or conservator • -- Anyone else • Unauthorized claim binding if ratified • Later claimant can’t piggyback on timely claim
Claims – Mandatory Contents • (a) Name and post office address of claimant • (b) Post office address for notices • 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. • (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. • Crucial to theories that can be asserted in subsequent lawsuit. • 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. • Claim necessary to sue public employee for acts within scope of duty • Claim goes to public employer, not employee • Failure to name affects ability to “Doe” in employee later
Mandatory Claim Contents Cont’d • (f) Prayer: • -- If less than $10,000, amount • -- If more than $10,000, whether lawsuit would be limited civil case
Proper Recipient • Local public entity: clerk, secretary, auditor, governing body • State: Victim Compensation and Government Claims Board • Judicial Entity: Different rules depending on entity • For all: Different rules for mailing vs. delivery in person
Substantial Compliance vs. “Claims as Presented” • Substantial Compliance: • -- All mandatory elements present • -- Minor error • -- Improper recipient: Actual receipt within claim period
Substantial Compliance vs. “Claims as Presented” • “Claims as Presented” • -- document that serves same purpose as claim • -- 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 • Exception: omitted address of claimant or notice recipient • Exception: Incorrect recipient
Late Claim Relief -- Application • To entity – same recipients as claim • Timely application jurisdictional prerequisite to relief from court • Must state reason for delay (should also provide proof) • If more than 1 year: show grounds for tolling (statutory or estoppel) • Attach proposed claim
Late Claim Relief -- Application • If granted: Attached claim deemed presented on day of granting • If denied: Notice directing claimant to petition court
Late Claim Relief: Petition to Court • Not appeal; trial court makes independent determination • Special Proceeding • 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
Late Claim Relief -- Petition • Show (don’t just allege – prove by preponderance of evidence): • -- Application timely made and denied • -- Statutory ground for relief • Include mandatory contents of claim
Late Claim Relief -- Petition • Opposition: • -- Same rules & format as motion opposition • -- Include memorandum of P’s & A’s • -- Include proof by declaration & exhibits • -- Show prejudice if appropriate • -- Discovery?
Late Claim Relief -- Petition • Hearing: • -- No jury • -- Live testimony: Rare, but court can permit • -- No jurisdiction to determine if claim actually timely
Late Claim Relief -- Petition • Order granting: • -- Not permission to file late claim; relief from having to present claim • -- Complaint within 30 days (premature ok) • -- Not appealable; writ challenge only • -- Can challenge in main action on jurisdictional grounds (demurrer or msj)
Late Claim Relief -- Petition • Order denying • -- Appealable • -- If claim’s untimeliness undisputed, action barred • -- 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 • Claimant’s death during claim period (survival statute action) • Claimant’s minority throughout claim perid
Grounds for Late Claim Relief -- Discretionary • Incapacity that prevents timely claim • -- Requires nonconclusory medical evidence • -- Can’t pick up phone to contact attorney • -- Claimant’s incapacity can’t excuse attorney’s delay in presenting claim
Grounds for Late Claim Relief -- Discretionary • Mistake, inadvertence, surprise or excusable neglect • -- Must be no prejudice to public entity • -- Same standards as CCP 473 (except no mandatory relief) • --Must show reasonable diligence • --Must have attempted to obtain attorney within claim period • -- Caselaw shows where excusable neglect found and not found
Estoppel • Nonstatutory ground for relief • Can assert in lawsuit • Petition? • Intimidating conduct (if prevented timely reporting) • Misrepresentation of fact • Misrepresentation of law – only if: • -- Claimant unrepresented; • -- Misrepresentation intentional; or • -- Confidential relationship with claimant
Complaint Timeliness • No relief for late complaint • Entitlement to late claim relief won’t excuse untimely complaint • CCP tolling inappplicable • Limited tolling: • -- Exhaustion of other remedies • -- Appeal of denial of petition
Complaint Pleading • No “Doe-ing” in public entities • Must specifically plead facts showing statutory grounds for liability • Must plead compliance with or excuse from claim requirements • Theories of recovery must be fairly reflected in claim
Answer Pleading • Need not verify even if complaint verified • Plead immunities as affirmative defenses; identify statutes • Plead SOL as affirmative defense; identify statutes • Plead lack of compliance with claim statute?