Government Tort Liability:

1. Government Tort Liability: Claims and Pleading

2. 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

3. 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

4. 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

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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

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

16. 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

17. 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

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

19. 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

20. 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

21. 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?

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

23. 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)

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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?