Government Tort Claims Primer PDF

Editor-in-Chief Natalie Weatherford TAYLOR & RING LLP November 2018 Issue Government tort claims A VERY SHORT PRIMER ON PRACTICE AND PROCEDURE When is a tort clai...

Editor-in-Chief Natalie Weatherford TAYLOR & RING LLP November 2018 Issue Government tort claims A VERY SHORT PRIMER ON PRACTICE AND PROCEDURE When is a tort claim required? with sufficient information to enable it to Government Claims Act is required. For A strict statutory requirement exists adequately investigate claims, to settle example, employment-discrimination in California requiring that a “govern- claims (if appropriate) without the claims against a public entity under the ment tort claim” be brought before suing expense of litigation, and to financially California Fair Employment and Housing a public entity for money or damages. plan for lawsuits. Act (FEHA claims) are not subject to Government tort claims are governed by claim-filing requirements because FEHA When is a tort claim not required? has its own procedures that ensure ade- Government Code section 810-996.6. The tort-claim requirement applies to all Government Code section 905 con- quate notice to the public entity. public entities – including, but not limit- tains a list of the “exemptions” from the What is a “public entity”? ed to, state, county, local government Tort Claims Act. However, the exclusions agencies or departments and govern- enumerated in section 905 are not exclu- Public entities include the state, ment employees. sive. Various other exemptions are also county, local government agencies or There are several exceptions and recognized by case law. For example, departments, and government employ- exemptions to the tort-claim require- claims by minors (under the age of 18) ees, including but not limited to public ment, but as a general rule you cannot related to sexual abuse they experience schools, public hospitals, public sue the government for money or dam- in their minority (Gov. Code, § 905, transportation, law enforcement, etc. ages unless you have first filed a claim subd. (m)) are exempted from the tort- (Gov. Code, § 900, et seq.) within the statutorily specified time claim requirement. Some public entities are obvious; if period. Additionally, if a statute exists con- it is unclear whether defendant is an The public policy behind the Tort taining a different procedure for filing exempt public entity, your “mistake” as to Claims Act is to provide the public entity claims, then no claim under the See Weatherford, Next Page Natalie Weatherford, continued November 2018 Issue its status will not exempt you from the fil- must use it. (Gov. Code, § 910.4) For entity.” (Gov. Code, § 53051.) A claimant ing deadlines. To determine if your example, LAUSD has a specific LAUSD may be excused from filing a claim if the defendant is a public entity, first check its tort-claim form that you can access by entity fails to do so. website (look generally for language calling their district office and request- Estoppel: If the entity (or its employees) stating its relation with the state, insignia, ing. do anything to mislead, prevent or dis- tort claims forms, etc.) and also check the If no form is available, you must sub- suade the claimant from filing her claim, “Roster of Public Agencies” by calling the mit a typed claim including: (1) the name the entity may be estopped from arguing Secretary of State’s Special Filings and address of the claimant, (2) the date that the claimant’s claim came in late. department at (916) 653-3984. and place of the incident out of which (See, e.g., John R. v. Oakland Unified You may also simply call/email the the claim arose, (3) a general description School Dist. (1989) 48 Cal.3d 438.) defendant to ask whether they are a pub- of the damage sustained, (4) the names Prior payments by the public entity (pay- lic entity requiring a tort claim and con- of any public employees involved, and ing for medical expenses after injury): If a firm their response in writing. If the (5) the dollar amount of the claim if it is public entity has previously made pay- defendant misleads you as to its name, its less than $10,000. Claims over $10,000 ments to the claimant without first notify- status as a public entity, or regarding the should state that they “exceed the juris- ing claimant of claims requirement, the need to file a claim, this may create an dictional limits of the Court.” You are not claimant may be excused from the tort- estoppel argument. required to include a dollar amount if claim requirement. This most often your claim is for more than $10,000. comes up in a situation where the entity Timing requirements has paid for medical care related to the Tort-claim pleading requirement Any claim against a public entity for injury sustained by the claimant and personal injury, death or for damage to Your complaint should contain a sec- caused by the entity or its employees. personal property must be presented to tion titled “Compliance with Government (See, e.g., Maisel v. San Francisco State the public entity within six months of the Tort Claims Act” stating the date your Univ. (1982) 134 Cal.App.3d 689.) “accrual of the cause of action.” (Gov. tort claim was filed and the date of the Request for relief from late filing: If your Code, § 911.2.) Your claim is deemed rejection. A demurrer will quickly follow claim is late, meaning it was filed more presented when it is mailed. (Gov. Code, if you fail to include facts in your com- than six months after accrual, but less § 915.2.) plaint showing compliance with the Tort than one year after accrual, you may still Accrual of cause of action refers to Claims Act. file your claim and seek relief from the the date on which the statute of limita- late filing. The claimant has up to one Late tort claims tions would begin to run if there were no year after accrual of the cause of action claim requirement. Generally, this date Generally, failure to comply with the to apply in writing to the public entity will be the date of the injury. (Gov. Code, Tort Claims Act completely bars the for permission to file a late claim. The § 901.) claim against the public entity or its application must state the reason for the After presentation of the claim, the employees. If you are required to file a delay and be accompanied by a copy of public entity has 45 days to either accept claim, and your claim is not exempted by the proposed claim. (Gov. Code, § 911.4.) or reject the claim. If it does not act with- statute or case law, you may still get in the 45 days, then the claim is deemed around the filing requirement in certain Natalie Weatherford is a trial attorney at rejected. After rejection of your claim, limited circumstances. A few examples Taylor & Ring LLP in Manhattan Beach, you have six months to file your com- are as follows: California. Natalie focuses her practice on plaint. The public entity fails to file with representing both children and adults in sexu- Secretary of State: Public entities are al harassment, assault, abuse and misconduct Completing the tort claim required to file information with the cases, as well as catastrophic injury and civil If the public entity has a specific Secretary of State and County Clerk rights litigation.  form they require for tort claims, you which identifies them as being a “public