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self-study / Torts

Government Claims Act

Hamilton jeff web

Jeffrey Y. Hamilton Jr.

Judge, Fresno County Superior Court

3 ricciardulli pro   mug

Stanley Mosk Courthouse

Alex Ricciardulli

Judge, Los Angeles County Superior Court

Appellate

The object of this article and accompanying self-study test is to familiarize readers with procedures under the Government Claims Act (Gov. Code Sections 810, et seq.), the statute that must be complied with when litigating actions against public entities. Readers will learn about who must file a claim with an entity prior to initiating a suit, the types of claims subject to the Act, when claims must be filed, late claims, and public entity and employee liability.

Overview

The act sets forth a general rule of non-liability for public entities. "Except as otherwise provided by statute [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." Gov. Code Section 815(a) (all further references are to this code).

Only specified claims are exempted from non-liability. See, e.g., Sections 815.6 (when entity has a mandatory duty), 830 (dangerous condition on public property). Even when liability exists, within strict time limits, a plaintiff must first present the claim to the entity. See Section 911.4.

The claim-filing requirement serves several purposes. It gives the public entity prompt notice of a claim so that it can investigate the strengths and weaknesses of the claim; it affords opportunity for amicable adjustment, thereby avoiding 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. See Schwing, 1 Cal. Affirmative Def. (2d ed. 2016) Section 12:20.

Who must file?

The act requires each plaintiff to file a timely claim with the public entity before bringing suit in the proper court. Section 910. Cases have addressed this issue in different scenarios.

A decedent having filed a claim with a city and county for damages for injuries did not absolve survivors from their obligation to file their individual claim(s) for damages for her wrongful death. "The filing of a wrongful death claim by one heir for herself alone, even though it similarly gives the public body full opportunity to investigate, does not excuse absence of a claim by another heir." Lewis v. City and County of San Francisco, 21 Cal. App. 3d 339 (1971).

Petersen v. City of Vallejo, 259 Cal. App. 2d 757 (1968), reached a similar result. There the plaintiff's parents were fatally injured in an automobile accident. Before the mother died she filed on her own behalf a claim against the municipality for her own injuries and for the wrongful death of her husband. No claim was filed by plaintiff within the statutory period. The Court of Appeal held that plaintiff was required to file a claim for wrongful death on her own behalf and the mere fact that the municipality had knowledge of the accident and possibility of other claimants did not excuse their failure to file their claims.

Lacy v. City of Monrovia, 44 Cal. App. 3d 152 (1974), distinguished Lewis and Petersen. Lacy involved the police entering the wrong house attempting to arrest a suspect. The husband timely filed a claim naming himself, his wife, and their three children, seeking damages for detention, humiliation and physical injuries. The city claimed no claims were filed for the wife and children; the appellate court held that the claim gave the public entity all the notice and knowledge it needed -- the fact that the wife and children did not sign separate forms was of no consequence.

What is in controversy?

The act requires a timely claim be presented to an entity prior to filing claims for "money or damages." Section 945.4. This phrase is comprehensive and encompasses claims arising out of (a) negligence; (b) nuisance; (c) breach of statutory duties; (d) Unruh Act claims; (e) intentional wrongs; (f) a mandamus action seeking monetary reimbursement; (g) a writ petition seeking to compel a public employer to perform a duty enjoined by law, i.e., to reimburse an employee for the cost of the employee's defense; (h) actions for breach of contract; and (i) money had and received. Schwing, 1 Cal. Affirmative Def. (2d ed. 2016) Section 12:21.

Some claims are excluded, including those related to: (a) the Revenue and Taxation Code, or other statutes related to taxes; (b) required filings of mechanics', laborers', or materialmen's liens; (c) public employees' fees, salaries, wages, expenses, etc.; (d) workers' compensation; (e) public assistance; (f) public retirement/pension systems; (g) principal or interest upon bonds, notes, warrants, etc.; (h) some special assessments constituting specific liens on property; (i) by a state or local public entity; (j) unemployment insurance; (k) certain labor code penalties or forfeitures; (l) the Pedestrian Mall Law of 1960; (m) damages suffered as a result of childhood sexual abuse arising after 2008; (n) distribution of proceeds by levying officer; and (o) reimbursement of pupil fees. Schwing, 1 Cal. Affirmative Def. (2d ed. 2016) Section 12:21.

Mandamus actions or injunctive relief are excluded, unless the primary purpose of a mandamus action is monetary relief, in which case the mandatory claim filing requirements apply. See Canova v. Trustees of Imperial Irr. Dist. Employee Pension Plan, 150 Cal. App. 4th 1487 (2007) (Although the operative complaint does not directly ask for money or damages, it seeks a transfer of additional funds into the contribution plan accounts of each plaintiff. This is a form of monetary relief that would fully compensate plaintiffs for defendants' alleged improper modifications and render any equitable relief superfluous. Accordingly, plaintiffs' claim was one for breach of contract and they cannot avoid the government claim filing requirement by recasting it as one for mandamus).

When must the claim be filed?

Under Section 911.2, personal injury and/or property damage claims must be presented within six months. All other claims must be present within one year.

All claims not within the six-month presentation requirement must be presented to the public entity within one year after the cause of action accrues. The principal types of claims that fall under the 1-year rule involve damage to real property, economic damage, or breach of contract. See, e.g., City of Stockton v. Superior Court (Civic Partners Stockton, LLC), 42 Cal. 4th 730 (2007) (breach of contract); Wheeler v. County of San Bernardino, 76 Cal. App. 3d 841 (1978) (damage to real property); Baillargeon v. Department of Water & Power, 69 Cal. App. 3d 670 (1977) (promissory estoppel).

Late-filed claims

The claimant must initially apply to the public entity for leave to present the claim after the six-month period has expired. Section 911.4(a). The application must be presented within a reasonable time not to exceed one year after the accrual of the cause of action. Section 911.4(b).

The governing board of the entity must timely grant or deny the application, or it will be deemed denied by operation of law. If the public entity grants the application, the claim is deemed presented as of that date and the usual claim-presentation rules govern the claim. If the board denies the application, the claimant may timely petition the superior court for relief from the claim-presentation requirement. If the superior court denies the petition, the claimant may bring a timely post judgment motion or a timely appeal. If the court grants the petition, the claimant must file a civil lawsuit within a special 30-day limitations period. Section 946.6(f).

"Mistake, inadvertence, surprise or excusable neglect" (Section 911.6(b)(1)) are the bases for most late claim applications and petitions. The California Supreme Court has defined "excusable neglect" as "neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances." Ebersol v. Cowan, 35 Cal. 3d 427 (1983). Inexcusable neglect occurs when the claimant's failure to present a timely claim results from the claimant's (or the claimant's attorney's) lack of diligence. The theme of the numerous cases distinguishing excusable from inexcusable neglect is that the former occurs when the claimant (or the claimant's attorney) is reasonably trying to comply with the procedural requirements and deadlines necessary to pursue a claim and fails only because of some acceptable mistake. There is no discretion to grant relief for late-filed claims due to lack of diligence. See Department of Water & Power v. Superior Court (Dzhibinyan), 82 Cal. App. 4th 1288 (2000).

Public entity liability

Vicarious liability for employee's conduct. Respondeat superior generally applies. The public entity is liable for employees' tortious conduct in the ordinary scope of their duties. Section 815.2.

Failure to perform a mandatory duty to protect against specific risk. It must be a mandatory duty -- not just an obligation, and this is quite rare:

(1) The Department of Justice has a mandatory duty to investigate background of applicants for gun licenses. Braman v. State of California, 28 Cal. App. 4th 344 (1994).

(2) Social workers have a mandatory duty to investigate allegations of child abuse. Scott v. County of Los Angeles, 27 Cal. App. 4th 125 (1994).

(3) The Athletic Commission has a mandatory duty to require negative HIV test from boxers before allowing them to participate in match. Corona v. State of California, 178 Cal. App. 4th 723 (2009).

Compare: A county code provision requiring a county to capture animals which constitute a hazard or a menace to the community did not impose a mandatory duty on county to capture dogs; an ordinance which obligated the county to file a court petition if a dog is "potentially dangerous" did not impose a mandatory duty on the county to petition for a determination as to whether dogs were dangerous; and a county's alleged inadequate investigation of complaints did not warrant imposition of public entity liability. County of Los Angeles v. Superior Court, 209 Cal. App. 4th 543 (2012).

Dangerous condition of public property. A dangerous condition is a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when the property is used with due care in a reasonably foreseeable manner. Section 830. There must be a physical defect in the property itself, and there must be a causal connection between the defect and the injury.

A government entity is liable for the dangerous condition of public property if: (1) there was a dangerous condition; (2) the dangerous condition was a substantial factor in causing the plaintiff's injury; (3) the injury was a reasonably foreseeable consequence of the dangerous condition; and (4) (i) a public employee's negligence created the dangerous condition; or (ii) the public entity had actual or constructive notice, far enough in advance of the injury to take reasonable measures. Section 835.

Public employee liability

Public employees are liable for causing injury to the same extent as any private person, except where prohibited by statute. Section 820(a). And, by statute, public employees are almost always immune. See generally Sections 844-846.

For example, public employees are not liable for their discretionary decisions even if their "discretion be abused." Section 820.2. There is no liability for non-negligent law enforcement Sections 818.2, 820.4; no liability if "exercising due care in the execution or enforcement of any law"; but no "exoneration" for false arrest.

No liability for failure to assist Section 820.25, as long as the assistance is to a motorist not involved in an accident or if the officer leaves the scene "after rendering assistance, upon learning of a reasonably apparent emergency requiring his [or her] immediate attention elsewhere or upon instructions from a superior to assume duties elsewhere." This does not apply to performance of "a plain and mandatory duty involving the execution of a set task."

There is also no liability for failure to arrest. Section 846. But, a negligent failure to release a prisoner after all charges are dropped is not embraced in this immunity. Sullivan v. County of Los Angeles, 12 Cal. 3d 710 (1974). No liability for parole decisions or release of prisoner. Section 845.8. No liability for failure to provide police protection. Section 845. Finally, there is no liability for failure to provide a correctional facility, or failing to provide facilities, personnel, or equipment in any correctional facility. Section 845.2. 

#739

Ben Armistead


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