If you’re suing a public entity or public employee (acting within the scope of employment) for money or damages, you must first file a timely administrative claim. But what do you do if you’re late in filing your claim?
If you don’t present a claim under the Government Claims Act (formerly known as the Tort Claims Act) (Govt C §§810–998.3) within the 6-month claim presentation period, you’re going to need an excuse. See Govt C §§911.4, 911.6, 911.8, 912.2, 946.6.
The most common excuses for late claims addressed by courts are:
- failure to identify the defendant as a public entity;
- presentation of a claim to the wrong public entity;
- lack of knowledge that governmental negligence or wrongdoing caused the injury or damage to the claimant;
- ignorance of the applicable claims procedures; and
- calendar or clerical errors.
If you find yourself with such an excuse, here are the basics on the procedure for filing a late claim:
- Apply for leave to present a late claim. The claimant must initially apply to the public entity for leave to present the claim after the 6-month period has expired. Govt C §911.4(a). The application must be presented within a reasonable time not to exceed 1 year after the accrual of the cause of action. Govt C §911.4(b). On tolling of this 1-year period under certain circumstances, see Govt C §§911.4(c)(1), 946.6(c)(3).
- Entity has 45 days to grant or deny the application. The entity’s governing board has 45 days to grant or deny the application (unless before expiration of that period the claimant and the board agree in writing to extend the time in which the board must act). Govt C §911.6(a). Failure to act within that period operates as a denial on the 45th day (or on the last day specified in the agreed-on extension). Govt C §911.6(c).
- If application is denied, petition the court. If the board denies the application, the claimant has 6 months to petition the court for an order for relief from timely claim requirement. Govt C §946.6(a)-(b). Failure to petition the court under after a denial, unless excused, e.g., because of equitable estoppel, usually bars action on the claim. If the court grants the petition, the claimant must file a civil lawsuit within a special 30-day limitations period. Govt C §946.6(f).
The entire claim filing process is explained in detail in CEB’s authoritative text on the subject, California Government Tort Liability Practice. These issues are also covered in The California Municipal Law Handbook, chap 13.
Related CEB blog posts:
- File a Claim or Forget Your Suit Against a Public Entity!
- Be Ready for the Defense When Suing a City for a Pothole
- Before Taking on the Government for that Pothole
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