Government Claims | Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California

Most people have been asked to sign releases at various times, particularly for participation of their children in youth activities. Are they valid? They can be in many cases. But in certain cases, they may be void if there is a public policy reason or statute. For example, Civil Code section 1668 prohibits contracts which “have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” Further, case law in California has prohibited releases of future gross negligence as being void against public policy. City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758.

There is an entire inquiry into whether a release is valid, which I won’t discuss here today. Suffice it to say, you should consult with a personal injury attorney even if there is a release, because it is a technical question. Most, if not all, personal injury attorneys provide a free consultation in personal injury cases.

In the City of San Barbara case, mentioned above, the mother of a developmentally disabled 14 year-old signed a release purporting to release the City of Santa Barbara and its employees from liability for “any negligent act” related to the child’s participation in a summer camp, run by the City, for developmentally disabled children. The child drowned, and the parents filed suit.

We conclude . . . that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy. Applying that general rule in the case now before us, we hold that the agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.

My Torts Professor, Kenneth Manaster, drummed in our heads that “gross negligence” was not a term that we should bandy about, and of course he said it in 1995 or 1996, eleven years before City of Santa Barbara. There is a sort of “folk law” idea of what gross negligence is, perhaps informed by the law of other, non-California states. In the City of Santa Barbara case, the California Supreme Court distinguishes between ordinary negligence and gross negligence:

We begin by defining the terms that underlie the issue presented. “Ordinary negligence”—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. (See, e.g., Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869, 118 P.2d 465 (Donnelly ).)

“Gross negligence” long has been defined in California and other jurisdictions as either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185–1186, 7 Cal.Rptr.3d 552, 80 P.3d 656 (Eastburn ), and cases cited; accord, Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1240, 244 Cal.Rptr. 714 (Colich ); Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052–1053, 236 Cal.Rptr. 526; see also, e.g., Prosser & Keeton, The Law of Torts (5th ed.1984) § 34, pp. 211–212 (Prosser and Keeton); 57A Am.Jur.2d (2004) Negligence, § 227, p. 296.) City of Santa Barbara v. Superior Court, 41 Cal. 4th 747, 753-54, 161 P.3d 1095, 1099 (2007).

The procedural posture of the City of Santa Barbara was somewhat unusual. The City moved for Summary Judgment, lost, and appealed immediately. The case was set for trial, and then the City settled before the trial started for $2,000,000.

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Michael Reiter, Attorney at Law.

Filed under City Council, Dangerous Condition of Public Property, Government Claims, Gross Negligence, Municipal Law, Personal Injury Law, Release Tagged with gross negligence, Michael Reiter Attorney at Law, public policy, Santa Clara University School of Law

City of Riverside’s City Clerk Online Public Records

August 25, 2011 Leave a comment

By Michael Reiter, Attorney at Law.
Finding a municipal record can be difficult even for in-house municipal lawyers. When I was Assistant City Attorney for the City of Redlands and a Deputy City Attorney for the City of San Bernardino, I would have to go to, email or call the City Clerk’s Office for someone to manually pull the needed document.

Luckily, progressive cities are putting more and more documents online. This is a good practice because it allows both staff and the public to pull up public records without having to waste staff time retrieving the record.

The City of Riverside has such a system, which I stumbled upon looking for a Government Claim form from the City. As an aside, I called the City’s 311 call center and they said the Government Claim Form is not available online. They agreed to email me one.

The City of Riverside record database is available here. The available folders are: Administration, Agendas, Boards and Commissions, Chaindex, City Council/Agency Reports, Contracts/Agreements, Covenants and Agreements, Deed Chaindex, Deed Outs, Deeds, Discussion Session, Elections, Fiscal, General Plan 2025 Program, Insurance, Minutes, Miscellaneous, Ordinances, Purchase Orders, Resolutions, Upcoming Public Hearings.

The Agendas go back to 1997. The oldest deed that I could find was from 1955. The earliest Agreement is from 1960. Minutes date back to incorporation in 1883, Ordinances to 1907 (dating to the new series Ordinance 1).

There are many fascinating documents, including the Incorporation document from 1883. Of course, the City of Riverside was then in San Bernardino County, so the Clerk of the Board of Supervisors was William F. Holcomb, first elected to the position in 1882. Both his grandson and great-grandson would become mayors of San Bernardino.

So, you can’t get the Government Claim form online (I would suggest that someone who needs a claim form call 311, the City emailed it to me), but you can get a whole host of other documents that have a variety of uses.

[Update September 29, 2011]

San Bernardino also has such a system, which I stumbled upon while looking at Gigi Hanna’s website.

A: 1255 W. Colton Ave., Suite 104

Redlands, CA 92374

T: (909) 708-6055

Filed under California Public Records Act, Charter, City Clerk, City of Riverside, City of San Bernardino, Government Claims, Inland Empire, Municipal Law, Riverside, Riverside County Tagged with California Public Records Act, City of Riverside, database, Michael Reiter Attorney at Law

Waiting for a County, City, or Other Local Public Agency to Reject A Claim

July 13, 2011 Leave a comment

Once a claimant has filed a claim pursuant to the Government Claims Act (formerly the Tort Claims Act), what happens next? The California Government Code gives the entity options.

(1) If the board finds the claim is not a proper charge against the public entity, it shall reject the claim.

(2) If the board finds the claim is a proper charge against the public entity and is for an amount justly due, it shall allow the claim.

(3) If the board finds the claim is a proper charge against the public entity but is for an amount greater than is justly due, it shall either reject the claim or allow it in the amount justly due and reject it as to the balance.
(4) If legal liability of the public entity or the amount justly due is disputed, the board may reject the claim or may compromise the claim. Government Code section 912.6(a).

If the entity is taking action, it is to be done within 45 days. Government Code section 912.4. If no action is taken within 45 days, the claim is deemed rejected by operation of law. Government Code section 912.4. The time period can be extended by stipulation. Government Code section 912.4(b). However, the City may reject it after the 45 days (changing the time in which to file suit to six months from the date of actual rejection), if no suit has been filed. See Kateleris v. Orange County (2001) 92 Cal.App.4th 1211, 1216.

The entity can approve the claim, the entity can send a notice showing the claim’s defects (Government Code section 910.8), or the entity can reject the claim. After rejection, the entity has the ability to reexamine claim at its discretion. Government Code section 913.2.

Notice must be given in writing. Government Code section 913. Typically, the notice will be along the lines of:

“Notice is hereby given that the claim that you presented to the (insert title of board or officer) on (indicate date) was (indicate whether rejected, allowed, allowed in the amount of $___ and rejected as to the balance, rejected by operation of law, or other appropriate language, whichever is applicable) on (indicate date of action or rejection by operation of law).”

. . .

“WARNING

“Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code section 945.6.

“You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.”

Failure to receive a notice or receiving inadequate notice triggers a two-year period to file suit. Government Code section 945.6(a)(2). The correct practice is to file within six months of rejection, and to calendar six months from the date the claim was filed and file from that date instead of relying on the two-year period. Agencies will trot out a proof of service saying that they rejected the claim, and then the claimant is in a battle of clerks. While waiting for a trial date early in my career with the City of San Bernardino as a Deputy City Attorney, I watched a large, investor-owned public utility get into such a fight with the County of San Bernardino.

This is a general overview, there is a lot more to this process. I will continue to write about the claims process here.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

Filed under Government Claims, Municipal Law, Personal Injury Law Tagged with Government Claims Act, Michael Reiter Attorney at Law, Personal Injury

Modern Technology in the Law Office – The Place of the Typewriter in Today’s Legal World

June 23, 2011 Leave a comment

Attorneys are often early adopters of technology, often to their detriment as technology advances, gets cheaper or goes obsolete. However, there is one piece of old-fashioned technology that refuses to die – the typewriter.

I own two typewriters. When I started law school in 1995 at Santa Clara University School of Law, notebooks and laptops were almost as fully-featured, if not as powerful, as they are today. However, the California Bar Examination, in 1995, did not allow for the use of computers. At the time, only typewriters with no more than one line of memory were allowed. The idea was that you could put some valuable information into the device to gain an advantage in taking the bar exam. I purchased a Smith Corona Memory Correct 400.

I typed all of my law school examinations on the Smith Corona. I learned to touch type in 1987 thanks to the Norman Feldhym Public Library and a host of Apple II GS computers (and some forgotten software). In the summer of 1998 while studying for the July 1998 bar examination, I was able to procure a second, back-up typewriter just in case the Smith and Corona broke.

By the time I took the bar exam, laptops were allowed with the use of a special program designed to lock out the hard drive. It was new technology, and though I had about a year’s notice, it was not time to switch horses in the middle of the race.

The Smith Corona still bears a sticker that says “July 1998 California Bar Examination” and my applicant number. I didn’t have to use the back-up typewriter, and the convention center did not lose power. I received my successful bar results in November 1998 and was sworn in the first week of December 1998.

When I arrived at Legal Aid Society of San Bernardino, at least one of the typists was still using an IBM typewriter to fill out Judicial Council forms. Not some of the forms, or some of the information, but everything. I always used a computer there, unless I had to type a form not included in Legal Solutions.

In the cities of San Bernardino and Redlands, the City Attorney’s Offices still have typewriters for forms that need to be typed, and envelopes and that sort of thing. I would occasionally borrow the IBM Selectric at a secretary’s station.

When I started my own practice, I dragged out the Smith Corona for government claims provided by entities as non-fillable PDFs. Sometimes, it is easier to use a typewriter on an address then to print it from the computer.

The Smith Corona is holding up pretty well. It was manufactured in the United States, just before Smith Corona moved its typewriter manufacturing to Mexico. I think it will survive for auxillary tasks in the law office for a long time, even if it is not state-of-the-art technology.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

Filed under City of Redlands, City of San Bernardino, Government Claims, Law Practice Management, Legal Technology, Municipal Law Tagged with Legal Technology, Michael Reiter Attorney at Law, typewriter

When is a Government Claim (formerly Tort Claims) required in California?

June 22, 2011 Leave a comment

When I became an attorney in December 1998, government claims were referred to as “tort claims”. That all changed with these words by the California Supreme Court in late 2007:

We also adopt the practice of referring to the claims statutes as the “Government Claims Act,” to avoid the confusion engendered by the informal short title “Tort Claims Act.” City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734.

The reason was the change is that the Act involves things other than torts, including contract actions. When in doubt, file a timely claim with all the required information.

California Government Code section 900 et seq. governs the claim requirements against California public entities (the State of California and local public entities). This is an overview of the requirement for a government claim, and is not an exhaustive look at the process. Seek appropriate legal assistance for your particular circumstance. I will explore some areas in depth at later times.

Certain causes of action do not require a government claim to be presented The following do not require a government claim to be presented to the public entity as a prerequisite to a civil action. False Claims Act (qui tam) do not require a Government Claim. Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1213 (as modified on denial of rehearing). Federal civil rights actions under the Civil Rights Act do not require a government claim. Williams v. Horvath (1976) 16 Cal.3d 834, 842. Government Code section 905 exempts claims under the Revenue and Taxation Code (subsection a); claims related to a “filing of a lien, statement of claim, or stop notice is required under law relating to liens of mechanics, laborers , or charges related thereto” (subsection b); claims “by public employees for fees, salaries, wages, mileage or other expenses and allowances” (subsection c); workers’ compensation (subsection d); public assistance (subsection e); public retirement or pensions (subsection f); principal or interest on warrants, bonds, notes, or other indebtedness (subsection g); claims related to special assessments as a result of a lien (subsection h); claims by the state or by a state department or by a local public agency or judicial branch entity (though the public entity can require a claim) (subsection i); unemployment insurance (subsection j); recovery of penalties and forfeitures under Labor Code section 1720 et seq. (subsection k); claims regarding the Pedestrian Mall Law of 1960 (subsection l); claims for the recovery of Civil Code section 340.1 damages regarding childhood sexual abuse regarding conduct occurring on or after January 1, 2009 (subsection m); claims for the recovery of money pursuant to Government Code section 26680 pursuant to Civil Code section 701.820 (subsection n). Government Code section 905.1 specifically exempts inverse condemnation cases from the presentment requirement of Government Code section 905, except that the entity should process the claim if presented.

A big warning: local agencies are allowed to adopt their own claims requirements pursuant to Government Code 935 with certain preemption by state law. For example, the City of San Bernardino’s claim ordinance is found at Chapter 3.16 of the San Bernardino Municipal Code. The City of Highland’s procedures are found at Chapter 3.08 of the Highland Municipal Code. The City of Riverside’s claim ordinance is found at Chapter 1.05 of the Riverside Municipal Code. Ontario’s is found at Title 3, Chapter 2 of the Ontario Municipal Code.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

By Michael Reiter, Attorney at Law.

Use of the California Public Records Act for Opposition Research

June 17, 2011 Leave a comment

The California Public Records Act (as well as the disclosures required by the Political Reform Act, adjudicative court records) provides an important tool for gathering information about political rivals. Below is a brief overview of the kinds of records that are available to the public, and what can be learned from the types of information.

1. Permit and Property Records. An opponent may be able to find administrative citations, notices of violation, building permits (or no building permits) by making a California Public Records Act request by a parcel number or street address. Some cities will take the view that code enforcement records are criminal investigatory files and refuse to disclose. However, I have found that most cities will disclose this information, with some redactions with the name of reporting parties. Building permits themselves are relatively non-controversial, and will be inspected.

2. Contracts with government entities, particularly entities that are not

3. Litigation with a public entity. This can be a treasure trove of information about the inner workings of government. Depositions are a good source because they are largely unfiltered. Also ask for any government claims, as they may not show up if no lawsuit is filed.

4. Minutes. Opponents can use these to establish a record of voting or non-voting.

5. Electronic mail. Though many public entities have policies of deleting email within a certain amount of time, electronic mail is often very candid and can provide powerful ammunition.

6. Constituent correspondence. You can find specific complaints about public officials and contact the complainants.

7. Correspondence with staff, including electronic mail. Is the political rival abusing staff? Find out by requesting correspondence on matters of importance to the elected official, particularly on matters that have dragged on for a long period of time because of red tape or the involvement of other government agencies.

8. Campaign disclosures. These often have little nuggets of information. For example, sometimes candidates keep committees open long after the election. One reason is because they made a loan of personal funds to themselves, and they hope to some day get paid back when they run a successful campaign in the future. Form 700 Statement of Economic Interests, whether for a candidate or an elected or appointed public official, have valuable information about potential campaign opponents.

9. Web browsing information. This may be subject to some exemptions, the agency may claim that these are not records, and they may be deleted fairly regularly. Request these records early and often.

9. There are many, many more areas which might be helpful. These requests need to be made regularly and not during election season. Records can be destroyed in compliance with California law, so the record you most want may not be there when you need it. Also, the California Public Records Act’s time provisions can be a disadvantage to obtaining records in a timely fashion.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

Filed under Administrative Citations, Building Permit, California Public Records Act, City of Redlands, City of San Bernardino, Code Enforcement, County of San Bernardino, Eminent Domain, Form 700, Government Claims, Municipal Law, Personal Injury Law, Political Reform Act, Public Contracting, Ralph M. Brown Act Tagged with California Public Records Act Request, Michael Reiter Attorney at Law, SANBAG

How Not to Handle Government Claims – Good Advice For California Public Entities

June 10, 2011 Leave a comment

Here is an anecdote of what not to do as a California Public entity. The particular entity shall remain anonymous, because as a former government attorney, I am embarrassed for them. It is a Joint Powers Authority within San Bernardino County. This particular entity is not involved in a lot of litigation, so I understand why the front-line staff was not trained to deal with the situation.

Before you file a lawsuit against California public entities (with some exceptions, such as a 42 United States Code section 1983 case, or a constitutional tort like inverse condemnation), you are required to file a government claim (which used to be known as a tort claim). The procedure is found in Government Code section 900 et seq.

Cities and counties get sued enough that you will easily be able to get a claim form and sometimes even instructions to file from them. Many cities have the claim form online. The best practice is for cities and counties have claim forms that are fillable PDFs.

This particular entity did not have a claim form. I had called to confirm this fact before hand. I had to explain to them what I wanted to do, and they finally told me that they did not have such a thing. That is not a problem, the requirements are found in the Government Code.

I went into the agency’s public entrance. I told the front counter employee that I was there to file government claims. The counter employee did not understand. The counter employee said that it should have a purple stamp from the court. The counter employee then said that I told the counter employee that the claim had to be filed first (the claim is a prerequisite for suit). The counter employee then went to find a supervisor. The counter employee came back and told me that she had been instructed to return the paperwork to me and say goodbye. I asked politely if there was anyone else I could speak to. The supervisor came out. I explained the process, and how the Government Code required that the claim be presented. I told the supervisor and the counter employee, that they should keep the original of each claim, stamp it in, and give me back a stamped, conformed copy. I told them that they should send it to their attorneys at a well-known local and statewide municipal law firm. To their credit, the front-line staff gave me my conformed copies. The problem was not with the front-line staff, but with higher level staff that has not trained the front-line staff.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055