Government Tort Liability: Claims and Pleading. Basic Concepts Prelitigation claim required to sue...
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Transcript of Government Tort Liability: Claims and Pleading. Basic Concepts Prelitigation claim required to sue...
Basic ConceptsBasic Concepts
Prelitigation claim required to sue Prelitigation claim required to sue under state law for damagesunder state law for damages
Need both timely complaint and Need both timely complaint and timely claim (or excuse)timely claim (or excuse)
Government Code time limits trump Government Code time limits trump CCP SOLsCCP SOLs
Late Claim Relief Available for six-Late Claim Relief Available for six-month claimsmonth claims
No Claim = No Cause of ActionNo Claim = No Cause of Action
DeadlinesDeadlines
Accrual same as for COA Accrual same as for COA against private defendantagainst private defendant
Claim for death, injury, personal Claim for death, injury, personal property, crops: 6 months from property, crops: 6 months from accrualaccrual
Claim for anything else: 1 yearClaim for anything else: 1 year
Deadlines Cont’dDeadlines Cont’d
Entity response:Entity response: -- Notice of insufficiency: 20 days -- Notice of insufficiency: 20 days
from presentation; can’t act for 15 from presentation; can’t act for 15 daysdays
-- Act on claim: 45 days-- Act on claim: 45 days -- After 45 days, denied by operation -- After 45 days, denied by operation
of lawof law -- Can serve denial on merits at any -- Can serve denial on merits at any
timetime -- Notice of untimeliness (for claims -- Notice of untimeliness (for claims
w/o application): Within 45 daysw/o application): Within 45 days
Deadlines Cont’dDeadlines Cont’d
Amendment: BeforeAmendment: Before -- Claim presentation deadline -- Claim presentation deadline
oror -- Final action on claim-- Final action on claim Whichever is laterWhichever is later
Deadlines Cont’dDeadlines Cont’d
Late Claim Relief (6 month Late Claim Relief (6 month claims):claims):
-- Late-Claim Application to -- Late-Claim Application to Entity: Reasonable Time < year Entity: Reasonable Time < year (unless tolled)(unless tolled)
-- Petition to Court: 6 months -- Petition to Court: 6 months after application denialafter application denial
Deadlines Cont’dDeadlines Cont’d
Statutes of Limitations (filing Statutes of Limitations (filing complaint):complaint):
-- Notice of denial w/ 6 month -- Notice of denial w/ 6 month warning: 6 months from mailing warning: 6 months from mailing or delivery of noticeor delivery of notice
-- No or defective 6 month -- No or defective 6 month warning: 2 years from accrualwarning: 2 years from accrual
Late-claim petition to court Late-claim petition to court granted: 30 days from order granted: 30 days from order
Deadlines Cont’dDeadlines Cont’d
All deadlines stemming from All deadlines stemming from response to claim or notice extended response to claim or notice extended by mailing claim or noticeby mailing claim or notice
(Exception for 6-month SOL?)(Exception for 6-month SOL?) Claimants’ deadlines run from action Claimants’ deadlines run from action
or mailing – not receipt of noticeor mailing – not receipt of notice Claimant obliged to check status if Claimant obliged to check status if
no news no news
Claims – Who Can PresentClaims – Who Can Present
ClaimantClaimant Person presenting on claimant’s Person presenting on claimant’s
behalf:behalf: -- Attorney-- Attorney -- Guardian or conservator-- Guardian or conservator -- Anyone else-- Anyone else Unauthorized claim binding if ratifiedUnauthorized claim binding if ratified Later claimant can’t piggyback on Later claimant can’t piggyback on
timely claimtimely claim
Claims – Mandatory ContentsClaims – Mandatory Contents
(a) Name and post office (a) Name and post office address of claimantaddress of claimant
(b) Post office address for (b) Post office address for noticesnotices
If (a) and(b) omitted, no waiver If (a) and(b) omitted, no waiver by failure to respond to claimby failure to respond to claim
Claims – Mandatory Contents Claims – Mandatory Contents Cont’dCont’d (c) The date, place and other (c) The date, place and other
circumstances of the occurrence or circumstances of the occurrence or transaction which gave rise to the claim transaction which gave rise to the claim asserted.asserted.
(d) A general description of the (d) A general description of the indebtedness, obligation, injury, damage or indebtedness, obligation, injury, damage or loss incurred so far as it may be known at loss incurred so far as it may be known at the time of presentation of the claim. the time of presentation of the claim.
These two items shape rest of lawsuit. These two items shape rest of lawsuit. Crucial to theories that can be asserted in Crucial to theories that can be asserted in
subsequent lawsuit.subsequent lawsuit. Early opportunity to persuade defendant Early opportunity to persuade defendant
that case has meritthat case has merit
Claims – Mandatory Contents Claims – Mandatory Contents Cont’dCont’d (e) The name or names of the public (e) The name or names of the public
employee or employees causing the employee or employees causing the injury, damage, or loss, if known. injury, damage, or loss, if known.
Claim necessary to sue public Claim necessary to sue public employee for acts within scope of employee for acts within scope of dutyduty
Claim goes to public employer, not Claim goes to public employer, not employeeemployee
Failure to name affects ability to Failure to name affects ability to “Doe” in employee later“Doe” in employee later
Mandatory Claim Contents Mandatory Claim Contents Cont’dCont’d
(f) Prayer:(f) Prayer: -- If less than $10,000, amount-- If less than $10,000, amount -- If more than $10,000, whether -- If more than $10,000, whether
lawsuit would be limited civil lawsuit would be limited civil casecase
Proper RecipientProper Recipient
Local public entity: clerk, Local public entity: clerk, secretary, auditor, governing secretary, auditor, governing bodybody
State: Victim Compensation State: Victim Compensation and Government Claims Board and Government Claims Board
Judicial Entity: Different rules Judicial Entity: Different rules depending on entitydepending on entity
For all: Different rules for For all: Different rules for mailing vs. delivery in personmailing vs. delivery in person
Substantial Compliance vs. Substantial Compliance vs. “Claims as Presented”“Claims as Presented”
Substantial Compliance:Substantial Compliance: -- All mandatory elements -- All mandatory elements
presentpresent -- Minor error-- Minor error -- Improper recipient: Actual -- Improper recipient: Actual
receipt within claim periodreceipt within claim period
Substantial Compliance vs. Substantial Compliance vs. “Claims as Presented”“Claims as Presented” ““Claims as Presented”Claims as Presented” -- document that serves same purpose as -- document that serves same purpose as
claimclaim -- gives notice that demand exists that if -- gives notice that demand exists that if
not honored will result in lawsuitnot honored will result in lawsuit -- if no notice of insufficiency or notice of -- if no notice of insufficiency or notice of
untimeliness, those defenses waiveduntimeliness, those defenses waived Exception: Exception: omitted address of claimant or
notice recipient Exception: Incorrect recipient Exception: Incorrect recipient
Late Claim Relief -- Late Claim Relief -- ApplicationApplication To entity – same recipients as claimTo entity – same recipients as claim Timely application jurisdictional Timely application jurisdictional
prerequisite to relief from courtprerequisite to relief from court Must state reason for delay (should Must state reason for delay (should
also provide proof)also provide proof) If more than 1 year: show grounds If more than 1 year: show grounds
for tolling (statutory or estoppel)for tolling (statutory or estoppel) Attach proposed claimAttach proposed claim
Late Claim Relief -- Late Claim Relief -- ApplicationApplication
If granted: Attached claim If granted: Attached claim deemed presented on day of deemed presented on day of grantinggranting
If denied: Notice directing If denied: Notice directing claimant to petition courtclaimant to petition court
Late Claim Relief: Petition to Late Claim Relief: Petition to CourtCourt Not appeal; trial court makes Not appeal; trial court makes
independent determinationindependent determination Special ProceedingSpecial Proceeding File in court that would be proper for File in court that would be proper for
lawsuit if petition grantedlawsuit if petition granted Motion format and rules: Notice of Motion format and rules: Notice of
hearing; Memorandum of P’s & A’s; hearing; Memorandum of P’s & A’s; declarations and exhibits; servicedeclarations and exhibits; service
Late Claim Relief -- PetitionLate Claim Relief -- Petition
Show (don’t just allege – prove Show (don’t just allege – prove by preponderance of evidence):by preponderance of evidence):
-- Application timely made and -- Application timely made and denieddenied
-- Statutory ground for relief-- Statutory ground for relief Include mandatory contents of Include mandatory contents of
claimclaim
Late Claim Relief -- PetitionLate Claim Relief -- Petition
Opposition:Opposition: -- Same rules & format as motion -- Same rules & format as motion
oppositionopposition -- Include memorandum of P’s & A’s-- Include memorandum of P’s & A’s -- Include proof by declaration & -- Include proof by declaration &
exhibitsexhibits -- Show prejudice if appropriate-- Show prejudice if appropriate -- Discovery?-- Discovery?
Late Claim Relief -- PetitionLate Claim Relief -- Petition
Hearing:Hearing: -- No jury-- No jury -- Live testimony: Rare, but -- Live testimony: Rare, but
court can permitcourt can permit -- No jurisdiction to determine if -- No jurisdiction to determine if
claim actually timelyclaim actually timely
Late Claim Relief -- PetitionLate Claim Relief -- Petition
Order granting:Order granting: -- Not permission to file late claim; -- Not permission to file late claim;
relief from having to present claimrelief from having to present claim -- Complaint within 30 days -- Complaint within 30 days
(premature ok)(premature ok) -- Not appealable; writ challenge only-- Not appealable; writ challenge only -- Can challenge in main action on -- Can challenge in main action on
jurisdictional grounds (demurrer or jurisdictional grounds (demurrer or msj)msj)
Late Claim Relief -- PetitionLate Claim Relief -- Petition
Order denyingOrder denying -- Appealable-- Appealable -- If claim’s untimeliness -- If claim’s untimeliness
undisputed, action barredundisputed, action barred -- If untimeliness disputed -- If untimeliness disputed
(discovery standard of accrual), (discovery standard of accrual), can file suit; date of accrual can file suit; date of accrual becomes issue in suitbecomes issue in suit
Grounds for Late Claim Relief Grounds for Late Claim Relief – Mandatory– Mandatory
Relief only mandatory if Relief only mandatory if application timelyapplication timely
Claimant’s death during claim Claimant’s death during claim period (survival statute action)period (survival statute action)
Claimant’s minority throughout Claimant’s minority throughout claim peridclaim perid
Grounds for Late Claim Relief Grounds for Late Claim Relief -- Discretionary-- Discretionary Incapacity that prevents timely Incapacity that prevents timely
claimclaim -- Requires nonconclusory -- Requires nonconclusory
medical evidencemedical evidence -- Can’t pick up phone to contact -- Can’t pick up phone to contact
attorneyattorney -- Claimant’s incapacity can’t -- Claimant’s incapacity can’t
excuse attorney’s delay in excuse attorney’s delay in presenting claimpresenting claim
Grounds for Late Claim Relief Grounds for Late Claim Relief -- Discretionary-- Discretionary Mistake, inadvertence, surprise or Mistake, inadvertence, surprise or
excusable neglectexcusable neglect -- Must be no prejudice to public -- Must be no prejudice to public
entityentity -- Same standards as CCP 473 -- Same standards as CCP 473
(except no mandatory relief)(except no mandatory relief) --Must show reasonable diligence--Must show reasonable diligence --Must have attempted to obtain --Must have attempted to obtain
attorney within claim periodattorney within claim period -- Caselaw shows where excusable -- Caselaw shows where excusable
neglect found and not foundneglect found and not found
EstoppelEstoppel
Nonstatutory ground for reliefNonstatutory ground for relief Can assert in lawsuitCan assert in lawsuit Petition?Petition? Intimidating conduct (if prevented timely Intimidating conduct (if prevented timely
reporting)reporting) Misrepresentation of factMisrepresentation of fact Misrepresentation of law – only if:Misrepresentation of law – only if: -- Claimant unrepresented;-- Claimant unrepresented; -- Misrepresentation intentional; or-- Misrepresentation intentional; or -- Confidential relationship with claimant-- Confidential relationship with claimant
Complaint TimelinessComplaint Timeliness
No relief for late complaintNo relief for late complaint Entitlement to late claim relief Entitlement to late claim relief
won’t excuse untimely complaintwon’t excuse untimely complaint CCP tolling inappplicableCCP tolling inappplicable Limited tolling:Limited tolling: -- Exhaustion of other remedies-- Exhaustion of other remedies -- Appeal of denial of petition-- Appeal of denial of petition
Complaint PleadingComplaint Pleading
No “Doe-ing” in public entitiesNo “Doe-ing” in public entities Must specifically plead facts Must specifically plead facts
showing statutory grounds for showing statutory grounds for liabilityliability
Must plead compliance with or Must plead compliance with or excuse from claim requirementsexcuse from claim requirements
Theories of recovery must be Theories of recovery must be fairly reflected in claimfairly reflected in claim
Answer PleadingAnswer Pleading
Need not verify even if Need not verify even if complaint verifiedcomplaint verified
Plead immunities as affirmative Plead immunities as affirmative defenses; identify statutesdefenses; identify statutes
Plead SOL as affirmative Plead SOL as affirmative defense; identify statutesdefense; identify statutes
Plead lack of compliance with Plead lack of compliance with claim statute?claim statute?