The Rule of Six when suing a California public or governmental entity

The deadlines are different and you don’t want to be left searching for an excusable error to keep your claim alive

2016 November

When filing a personal-injury lawsuit against a public entity (i.e., a state, county or local governmental entity), these actions are subject to the California Tort Claims Act (Gov. Code, §§ 810-996.6 (“The Act”).) The purpose of the Act is to give additional protections to governmental entities, in part by requiring that a claim be presented to the board of the public entity before a lawsuit is filed, thereby allowing the entity the opportunity to resolve the matter without the expense of costly litigation.

In my experience, however, I have never actually seen a claim resolved at this stage. Instead, the Act creates unexpected traps and pitfalls for plaintiffs’ attorneys not familiar with the nuances of governmental entities. In fact, sometimes just identifying that your defendant is a public entity triggering the Act is a difficult task in and of itself.

Under some circumstances, it is obvious that the Act is implicated such as when you are suing the City for a dangerous street or sidewalk condition or suing the County for the School District’s failure to properly supervise its students. However, many hospitals and recreation centers that you might think are privately owned are actually funded by the government and therefore fall under the Act. It is quite an unpleasant surprise to be served with a demurrer, the basis of which is the Plaintiff’s failure to comply with the Act when you didn’t even realize that your defendant was a public entity subject to the Act.

It is even more unpleasant if you are past the time to comply with the Act and may have the demurrer sustained without leave to amend. So research your defendant early on and determine if they fall under the Act; because if they do, the clock is ticking and you don’t have much time. You have far less time than when suing a private defendant. In this article, I discuss the various deadlines applicable to claims against public/governmental entities and potential remedies and relief you may have available if you inadvertently let a deadline lapse.

While you may be familiar with the two-year statute of limitations for personal-injury lawsuits under section 335.1 of the Code of Civil Procedure, when suing a public or governmental entity for personal injury, your statute of limitations is significantly shorter. Instead of two years, your deadline is in only six months. The six-month governmental claim deadline operates just like a statute of limitations. If you do not timely make your claim, it is barred pursuant to Government Code section 945.4. (Unless otherwise stated, all further Code citations in this article are to the Government Code.)

The Rule of Six

When suing public or governmental entities, just remember the Rule of Six. Under the Act, a claim for personal injury must be presented to the governmental entity within six months of the date of the injury. (§ 11.2.) Assuming that you have timely submitted your governmental claim and it is rejected, your deadline to file a complaint and initiate litigation is then six months from the date your claim is rejected. (§ 945.6) If you get a rejection letter, the deadline to file the complaint is six months from the date of the rejection letter. (§ 945.6(1).) If you don’t get a rejection letter, your deadline is two years from when the cause of action accrued. (§ 945.6(2).) Notably, your claim is deemed rejected by operation of law if no action is taken within 45 days. (§ 912.4(c).) Therefore, you are permitted to file your lawsuit 45 days after submitting the claim if no action has been taken, even if you have not received a rejection letter.

What if you missed the six-month deadline to file the claim with the governmental entity? Fortunately, there are some governmental code sections that may help save you and allow you to file your claim anyway. Your first potential remedy is section 911.4 which permits you to file an “Application to Present a Late Claim.”

This Application must be submitted within a “reasonable time,” not to exceed one year from the date of the injury. There are four (4) valid reasons for a late claim: (1) Mistake, inadvertence, surprise or excusable neglect; (2) The Claimant was a minor during the entire six-month period; (3) The Claimant’s physical or mental incapacity; and (4) Death of the Claimant. Your application must show a valid reason why your claim was not filed within the six months. To be clear, at this stage, when you make the Application, you are still dealing directly with the board of the governmental entity that you are attempting to sue. So, if you are reading this article and thinking that the entity that you want to sue is not likely to permit you to file a late claim enabling you to sue them when you would otherwise be time-barred, you are correct. However, this step is a necessary pre-requisite before you can seek relief from the Court.

The “Hail Mary” play

If and when, the governmental entity rejects your “Application to Present a Late Claim,” you have one more Hail Mary in which you are finally before the Court. Pursuant to section 945.6, you can petition the court for relief from section 945.4. This petition must be filed with the court within six months of the governmental entity’s rejection of your Application to Present a Late Claim. The Petition requires a showing that (1) the Claimant’s failure to timely present a claim was through mistake, inadvertence, surprise, or excusable neglect; (2) there is no prejudice to the governmental entity; (3) the Claimant made an Application to file a late claim within one year of the accrual of the action; (4) the Application was denied or deemed denied pursuant to 911.6; and (5) the Petition includes the information required by Section 910. Section 910 provides that the Claimant must provide all of the following: (1) Claimant’s name; (2) post office address to receive notifications; (3) date, place and circumstance giving rise to the claim; (4) general description of the injury, damage, or loss; (5) name of government employee(s) causing the injury if known; and (6) damages claimed. Notably, no dollar amount is required to be included if the amount claimed exceeds ten-thousand dollars though it must indicate whether the claim would be a limited civil case.

There’s still an appeals process

If the court denies your petition, you can appeal to the California Court of Appeals as with any other case. The following cases are examples in which the California Supreme Court or California Court of Appeal reversed the trial court’s denial of the petition and permitted the late claim to be filed. In Viles v. California (1967) 66 Cal.2d 24, 26 the Court held that it was an “excusable” error when the applicant suing the state for the death of his wife, and alleging a defective and dangerous highway condition, had been informed by the insurance adjustors that he had one year to bring the wrongful death action and erroneously concluded that an action against the state could be brought in the same manner and within the same time limits. In that case, the application to file a late claim was filed nine months after the cause of action accrued, but within two weeks of the claimant learning of his mistake. The Court found it was reasonable under the circumstances and held that where any doubts exist as to relief under Section 946.6, an outcome where the action is heard on the merits is preferred. (Id. at 26-27, 29, 32.) The Court further held that the showing required of a petitioner seeking relief due to mistake, inadvertence, surprise or excusable neglect under section 912, subdivision (b)(1), is the same showing required under Code of Civil Procedure section 473 for relieving a party from a default judgment. (Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar) s. 8.29, pp. 388-389; n. 4, p. 711.) (Viles v. State of California, 66 Cal.2d 24, 29.)

In Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 278, the Court found excusable error when an attorney filed a tort claim with the wrong public entity. In that case, the attorney for the claimant filed the claim with the state instead of the appropriate community college district. In reaching its opinion, the Court looked at (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. (Id. at 276.) Similarly, in Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 979, the court held that a calendaring error by an attorney’s office was ‘excusable neglect.’ (Id. at 983; see also Haviland v. Southern Cal. Edison Co. (1912) 172 Cal. 601, 605 [determining that the calendaring errors of an attorney or staff are excusable under appropriate circumstances].) However, in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 66, the court did not find excusable neglect where an attorney claiming a calendaring error did not file a declaration or provide any evidence to establish that his office committed a calendaring error. The court held that it appeared that there was no calendaring error and the attorney just took no action after being retained by the client. (Id. at 66.)

Therefore, if you are petitioning to the court for relief from section 945.6, it is important to get your evidence before the court in which you demonstrate how the mistake occurred. Submit whatever declarations and evidence are necessary so that you have the record should you need to appeal. This is the time to fall on your sword and beg the court’s forgiveness so that your client is not prejudiced because of an error. It is clear that the courts tend to give more leniency to those attorneys who have diligently prosecuted their client’s claims and have not sat on their rights, notwithstanding that they may have made an error.

It is worth noting that the remedies discussed herein only apply to the initial presenting of the government claim. They do not apply to the deadline to file a lawsuit based on the rejection of the claim. That deadline is hard and fast. It operates as any statute of limitations and is not to be blown!

When did your claim begin to accrue?

Another consideration to keep in mind is on what date your claim actually begins to accrue. Like with a traditional statute of limitations analysis, the claimant’s lack of sufficient knowledge of the facts giving rise to the claim delays the accrual of the claim. Therefore, in some circumstances, the claim may not necessarily begin to accrue on the date of injury. Delayed accrual of a statute of limitations occurs when the plaintiff lacks sufficient knowledge of the facts to file the case. “The accrual date for presenting a government tort claim is identical to the accrual date that would apply in an ordinary action when no public entity is involved.” (K.J. v. Arcadia Unified Sch. Dist., 172 Cal.App.4th 1229, 1233.) “Under the delayed discovery doctrine, accrual of the cause of action is postponed until the plaintiff discovers, or has reason to discover, the cause of action.” (Id.; see also Rivas v. Safety-Kleen Corp., (2002) 98 Cal.App.4th 218, 225; Sanchez v. South Hoover Hospital, (1976) 18 Cal.3d 93, 97.) In such cases, the plaintiff must show that the relevant facts were not discovered within reasonable diligence within the statutory period. (Fox v. Ethicon Endo-Surgery, Inc., (2005) 35 Cal.4th 797, 809.) The injured party plaintiff must demonstrate that it was ignorant of the facts and lacked the ability to have discovered the facts earlier. (Casualty Insurance Company v. Rees Investment Company, (1971) 14 Cal.App.3d 716, 720.)

Notwithstanding the doctrine of delayed discovery, whenever possible, it is best to calendar your deadline six months from the date of the injury, not the discovery. Indeed, it is always good practice to calendar the earliest of all possible dates as your deadline! The claim administrators handling government claims more often than not, just look at the date of the injury, and reject the claim as untimely if it is more than six months from the date of the injury. If you are past the six-month mark and relying on the delayed discovery doctrine, you will likely have to do an application to file a late claim pursuant to section 911.4 and argue delayed discovery. However, given your audience at this stage, your well-reasoned legal argument may fall on deaf ears. This argument probably will not be given much credence until you are before the court on a petition under section 945.6. Therefore, even though the doctrine of delayed discovery does apply to government claims and may operate to extend the deadline of your claim, it is best not to rely on it if you do not have to, because it will most likely just cause delays in getting your case at issue and before the court.

Additionally, there are some other statutory bases for tolling the claim such as the claimant’s incarceration. (§ 945.6(b).)

Stay on top of it

The bottom line is that you must be on top of your deadlines when suing a governmental or public entity. Though The Act does provide some available avenues of relief if you miss your initial six-month deadline, it is an uphill battle that you most definitely want to avoid. The Rule of Six is generally a good rule of thumb when keeping these deadlines in mind: Six months from the date of injury to file the claim with the governmental entity, six months from the date of rejection to file the lawsuit with the court, and six months from rejection of the Application to file a Late Claim to file a Petition for Relief from section 945.6.