Filing Late Government Claims (Tort Claims) in California

By Michael Reiter, Attorney at Law

Generally government claims for personal injury and personal property damage are due with a public entity within six months of an incident, with some notable exceptions.

However, if a claimant fails to file a government claim within the sixth months, there is a procedure to file a late claim.

(a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.

(b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.

(c) In computing the one-year period under subdivision (b), the following shall apply:

(1) The time during which the person who sustained the alleged injury, damage, or loss as a minor shall be counted, but the time during which he or she is mentally incapacitated and does not have a guardian or conservator of his or her person shall not be counted.

(2) The time shall not be counted during which the person is detained or adjudged to be a dependent child of the juvenile court under the Arnold-Kennick Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code), if both of the following conditions exist:

(A) The person is in the custody and control of an agency of the public entity to which a claim is to be presented.

(B) The public entity or its agency having custody and control of the minor is required by statute or other law to make a report of injury, abuse, or neglect to either the juvenile court or the minor’s attorney, and that entity or its agency fails to make this report within the time required by the statute or other enactment, with this time period to commence on the date on which the public entity or its agency becomes aware of the injury, neglect, or abuse. In circumstances where the public entity or its agency makes a late report, the claim period shall be tolled for the period of the delay caused by the failure to make a timely report.

(3) The time shall not be counted during which a minor is adjudged to be a dependent child of the juvenile court under the Arnold-Kennick Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code), if the minor is without a guardian ad litem or conservator for purposes of filing civil actions. California Government Code section 911.4.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law .

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

The Joint Meeting of the Inland Empire Chapters of the American Inns of Court, DoubleTree Hotel, Ontario, California February 18, 2015

By Michael Reiter, Attorney at Law

Every year, the Inland Empire Chapters of the American Inns of Court hold a joint meeting.  For the recent past (until last year), there were three local Inns: my Inn, San Bernardino’s The Honorable Joseph B. Campbell Inn, Riverside’s The Honorable Leo A. Deegan Inn, and Palm Spring’s The Honorable Warren Slaughter-Richard Roemer Inn.  Last year, we were joined by The Southwest Inn in Temecula, California.

The joint meeting is rotated amongst the Inns: last year was the Deegan Inn’s turn, and this year the honor went to the Campbell Inn. Next year will be The Southwest Inn’s first opportunity.

Our dinner was at the DoubleTree Hotel in Ontario, a sprawling, well-appointed facility.

Our speaker and honored guest was the Honorable André Birotte Jr., who was recently appointed, unanimously, by the United States Senate to be a United States District Court Judge for the Central District of California.  On that accomplishment, Judge Birotte remarked that he was surprised to hear a litany of yes votes (he mentioned Senator Hatch and Senator Cruz).  He thought it may have been non-controversial because he was appointed unanimously to be the United States Attorney for the Central District of California four years prior.

I asked him about why in the age of CM/ECF and mandatory electronic filing by litigants, why the Court required blue backing on courtesy copies.  He smiled and said he couldn’t speak for other judges, but that he only read the pleadings electronically, but that the clerks used the courtesy copies to make notes. It is good to note that Judge Birotte does not require blue backing for mandatory chambers copies. Judge Birotte’s Proedure and Schedule page says: “ALL EXHIBITS TO CHAMBERS’ COPIES MUST BE TABBED. BLUEBACKS ARE NOT REQUIRED,”

Judge Birotte spoke about the necessity of knowing and following the local rules, particularly Local Rule 7-3 requiring meet and confer.  He urged civility among the bar.  He said when he was a Los Angeles County Public Defender and an Assistant United States Attorney, the criminal bar was civil because it was a smaller community.

When asked about whether he spoke to the President upon confirmation, he stated that in both appointments, while he was vetted by Sentor Feinstein, he never spoke to President Obama. He said the older District Court judges told him that they spoke to their appointing-Presidents, but that was no longer the case.

The Mission of the American Inns of Court is to foster excellence in professionalism, ethics, civility, and legal skills.  If you are interested in joining the Joseph B. Campbell American Inn of Court, which meets in Redlands, CA, let me know.

Copyright 2015 Michael Reiter, Attorney at Law .

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

New “Administrative Fee” for filing a civil action in the United States District Court, Central District of California starting May 1, 2013

By Michael Reiter, Attorney at Law

While waiting in the Spring Street Courthouse in Los Angeles last week, I was browsing the wall outside the clerk’s office and found this notice:

Notice is hereby given that effective May 1, 2013, a new administrative fee of $50 will be added to the current $350 filing fee for a Civil Action, Suit or Proceeding, for a total filing fee of $400.  This new administrative fee is part of the “District Court Miscellaneous Fee Schedule,” established by the Judicial Conference of the United States, pursuant to 28 U.S.C. § 1914.  This fee does not apply to persons granted in forma pauperis status under 28 U.S.C. § 1915 or to applications for writs of habeas corpus.

Still cheaper, if you have federal question or diversity jurisdiction, than Superior Court, and you are likely to get a trial date sooner, too.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2013 Michael Reiter, Attorney at Law

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

Never Underestimate The Opposition Attorney

By Michael Reiter, Attorney at Law

When I was a teenager, I attended a program in Washington D.C. in the law.  Though I had wanted to be an attorney for about seven years at that point, I had actually applied to be in a program regarding national politics, but that was full, so I went to the legal program instead.

The program was very interesting.  We visited a juvenile correction facility, we went to the local District of Columbia courts, we visited the National Rifle Association and the American Civil Liberties Union, and though I cannot remember exactly because I’ve been a number of times, the Supreme Court and Congress. However, I recall in particular one visit to a public defender in the local courts.  On each visit, someone gave a presentation and the students were able to interact with the presenter.

The attorney with the public defender’s office made a great impression on me. This attorney had the passion and zeal of a true believer.  He said that people asked how he could sleep at night defending criminals.   He said “like a baby.”   He made one student, whose uncle was murdered, cry. He spit venom on many occasions, most memorably against non-public defender appointed attorneys whom he labeled as “soup-on-their-tie lawyers.”

Soup-on-their-tie lawyers.  Meaning, a slovenly attorney, from a ninth-tier law school, who barely passed the bar exam, of questionable ethics and practices, who was never prepared, always took the short cut.  The image of that lawyer is burnt into my brain.  At one of my previous employers, this kind of attorney was referred to as a “generic discipline-able attorney.”

As I grow older, however, let me caution newer attorneys not to underestimate the opposition attorney.  As a society, we have a tendency to overemphasize conventional wisdom.  The person wearing glasses is intelligent. Or on the other side of the coin, someone who looks like they slept in their suit (or spilled soup on their tie) is incompetent.

As a lawyer, you should not underestimate the opposition attorney, even if they have made a few mistakes along the way.  Even the worst attorney in the world sometimes stumbles into a great case.  Remember what my Theory of Knowledge teacher taught me: even a broken clock is right twice a day.  Do not be lulled into a false sense of confidence because of who is opposing you.  You still need to do your homework and do your job.  Particularly if you are a civil defense lawyer. You usually do not get to pick your cases.  The plaintiff’s lawyer usually does get to pick their cases.  Sometimes the case is better than you initially think.  Thinking a good case will go away because of the opposition attorney is an easily avoidable mistake.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2013 Michael Reiter, Attorney at Law.

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

Legal word of the day: Prolix

By Michael Reiter, Attorney at Law

Sometimes, you need a five dollar word instead of a five cent word.  The word is “prolix.”  Prolixity, according to Black’s Law Dictionary, Sixth Edition is the “unnecessary and superfluous statement of facts in pleading or in evidence.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court from a sovereign citizen, what I called a constitutionalists in the past.  Here is a restatement of the Complaint, without the actual prolixity:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

I believe I attacked the complaint using either this case, or a similar case, which taught me the word prolixity in context of F.R.C.P. Rule 8:

A heightened pleading standard is not an invitation to disregard’s Rule 8‘s requirement of simplicity, directness, and clarity. The “particularity” requirement of a heightened pleading standard, requiring “nonconclusory allegations containing evidence of unlawful intent,” as opposed to “bare allegations of improper purpose,” has among its purposes the avoidance of unnecessary discovery. Branch, 937 F.2d at 1386. If the pleading contains prolix evidentiary averments, largely irrelevant or of slight relevance, rather than clear and concise averments stating which defendants are liable to plaintiffs for which wrongs, based on the evidence, then this purpose is defeated. Only by months or years of discovery and motions can each defendant find out what he is being sued for. The expense and burden of such litigation promotes settlements based on the anticipated litigation expense rather than protecting immunity from suit. Judgment and discretion must be applied by district judges to determine when a pleading subject to a heightened pleading standard has violated Rule 8, but there is nothing unusual about a standard requiring judges to exercise judgment and discretion. We have affirmed dismissal with prejudice for failure to obey a court order to file a short and plain statement of the claim as required by Rule 8, even where the heightened standard of pleading under Rule 9 applied. Schmidt v. Herrmann, 614 F.2d at 1223-24. In Schmidt, as in the case at bar, the very prolixity of the complaint made it difficult to determine just what circumstances were supposed to have given rise to the various causes of action.  McHenry v. Renne (9th Cir. 1996) 84 F.3d 1172, 1178.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2013 Michael Reiter, Attorney at Law

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

Juror Questions in an Orange County Courtroom

By Michael Reiter, Attorney at Law

While waiting for a Case Management Conference in Santa Ana, California, I found these questions permanently affixed to a foam core board:

1. State your name.

2. In what city do you live?

How long have your resided there?

3. State your occupation and employer.

If retired, what was your occupation?

4. Do you have children?

If so, what are their ages and occupations?

5. Are there other adults living in your home?

Of so what are their occupations?

6. Have you had any prior jury service?

If so, was it a civil or criminal case?

These are typical of questions asked by the court during voir dire in other California counties, as well.

 

 

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2013 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Judicial Council Considering Allowing Courts To Suspend Case Management By Local Rules

By Michael Reiter, Attorney at Law

The Judicial Council is considering, and asking for comment on the following change to the California Rules of Court Rule 3.720 to add subdivision (b):

(b) Emergency suspension of rules 26

A court by local rule may exempt specified types or categories of general civil cases filed 28 before January 1, 2016, from the case management rules in this chapter, provided that the 29 court has in place alternative procedures for case processing and trial setting for such 30 actions, including, without limitation, compliance with Code of Civil Procedure sections 31 1141.10 et seq. and 1775 et seq. In any case in which a court sets an initial case 32 management conference, the rules in this chapter apply.

Advisory Committee Comment
Subdivision (b) of this rule is an emergency measure in response to the limited fiscal resources available 37 to the courts as a result of the current fiscal crisis and is not intended as a permanent change in the case 38 management rules.

This first came to my attention at the San Bernardino County Bar Association Board of Directors’ Meeting on Monday, January 14, 2013.  The Judicial Council is asking for review and comment by January 25, 2013, and proposes to implement the proposed rule on February 26, 2013.

The request is in response to the Los Angeles Superior Court and the Sacramento Superior Court because of their responses to the funding problems the courts are having because of the State of California’s budget.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2013 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

The fastest way to connect to the San Bernardino Superior Court’s Website To Search For Cases Without Using a Bookmark

By Michael Reiter, Attorney at Law.

Other than bookmarking the site, how do you find the San Bernardino Superior Court’s website for searching cases?  For years, I’ve told clients to use Google to search for “bernardino superior” and go from there.  However, there is a quicker way.  If you type “sb o” and then tab over, you will get an autosuggestion of “sb open access.”  If you then hit “I’m Feeling Lucky” you can get directly into Open Access, the San Bernardino Superior Court’s case information system by typing only five letters and clicking on I’m feeling lucky with your mouse in the search box.  There is even a direct URL for it: http://openaccess.sb-court.org/.

A quick primer on Code of Civil Procedure 394(a), removal to a neutral county

By Michael Reiter, Attorney at Law

This is a complicated statute, one that originated in the 1872 code, and therefore can be difficult to parse.  California Code of Civil Procedure section 394(a) allows, in a suit between a local government agency against a party who resides in another county, transfer to a neutral third county.  The code is a removal statute, not a venue statute, so the suit needs to be filed like any other suit.  When I was a Deputy City Attorney for the City of San Bernardino, a corporation tried to sue the City of San Bernardino in Orange County for declaratory relief.  It was kicked back to San Bernardino County.

The purpose of this provision “is to guard against local bias that may exist in favor of litigants within a county as against those from without the county, and to ensure that both parties have a trial on neutral territory.” [Citations omitted]. There is no need for a party seeking transfer to demonstrate actual prejudice because the statute “is designed to obviate the appearance of prejudice as well as actual prejudice or bias.”  Arntz Builders v. Superior Court (2004) 122 Cal.App.4th 1195, 1203.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2013 Michael Reiter, Attorney at Law.

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

California Personal Injury Litigation and Proof of Service for Electronic Service

By Michael Reiter, Attorney at Law.

Electronic service is a cost-effective manner of service, whether done in Federal cases with CM/ECF, or in California superior courts by stipulation, or in conjunction with electronic filing.  For California superior court cases, the Judicial Council has created an optional proof of service for electronic service, FORM POS-050/EFS-050, which needs to be used in conjunction with Form POS-o50(P).  However, if you follow the requirements of California Rules of Court Rule 2.251(g) the practitioner does not need to use the optional Judicial Council form.

California Rules of Court Rule 2.251(g) requires the following information:

(1)Proof of electronic service may be by any of the methods provided in Code of Civil Procedure section 1013a, except that the proof of service must state:

(A)The electronic service address of the person making the service, in addition to that person’s residence or business address;

(B)The date and time of the electronic service, instead of the date and place of deposit in the mail;

(C)The name and electronic service address of the person served, in place of that person’s name and address as shown on the envelope; and

(D)That the document was served electronically, in place of the statement that the envelope was sealed and deposited in the mail with postage fully prepaid.

(2)Proof of electronic service may be in electronic form and may be filed electronically with the court.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2013 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com