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 .

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

      Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

W: http://michaelreiterlaw.com

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

By Michael Reiter, Attorney at Law

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.

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, Attorney at Law

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

      Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

W: http://michaelreiterlaw.com

Duties of the City Clerk Under California Law In a General Law California City

By Michael Reiter, Attorney at Law

In a general law California city, the City Clerk’s duties are created by state law and by city or town ordinances and resolutions.  State law establishes the duties of  a general law City Clerk in Government Code section 40801, et seq.

The Duties of the California general law City Clerk are:

1. Clerical: Keep accurate record of the legislative body and board of equalization in books bearing appropriate titles and devoted exclusively to such purposes  with a comprehensive general index. The City Clerk shall keep an ordinance book and record all certified city ordinances.   The record with the certificate is prima facie evidence of the ordinance’s passage, publication and contents.  The official records should not be filed in any court proceeding.  The City Clerk is the custodian of the city seal.  The City Clerk can administer City oaths, take and certify City affidavits and depositions, and appoint deputies.  (Government Code sections 40801, 40806, 40807, 40813, 40814);

2. Financial: The City Clerk is the City’s accounting officer and shall retain records reflecting the City’s financial condition.  The City Clerk shall cause to be published a summary of the City’s financial report (required by Government Code section 53891 in the form prescribed by the the State Controller) once in a newspaper of general circulation, or if no newspaper, according to code, and posted no later than 120 days after the fiscal year’s close, and the clerk’s financial and accounting duties can be transferred to the finance director.  The City clerk is the ex officio assessor for the assessment and collection of city taxes unless delegated to the county.  (Government Code sections 40802, 40804, 40805, 40805.5, 40810); and

3. Other:  The City Clerk shall perform “such additional duties as are prescribed by ordinance.” ( Government Code section 40812).

 

The City Clerk also has duties created by the Election Code regarding elections and other duties in the Government Code, such as notifying the county board of supervisors regarding the change of a place name or number (Government Code section 34092).  The Government Claims Act allows a government claim to be filed with a city clerk.  Government Code section 915(a)(1).  The City Clerk is also receives Statements of Economic Interest under the Political Reform Act, as well as other duties under the Act.  Government Code section 87500(f).
Other duties can be prescribed by ordinance.  The City of Rancho Cucamonga, for example, requires certain documents on appeals to be filed with the City Clerk.  As I have mentioned before, often California Public Records Act requests are routed through or answered by the City Clerk.  The City Clerk in Redlands sold Fourth of July tickets at the University of Redlands on behalf of  the Redlands 4th of July Committee, Inc.  Many City Clerks process passports for the State Department.

 

A charter law City’s City Clerk’s duties will be created by the City’s Charter.  For example, the City of San Bernardino’s City Charter, Section 60 is very similar to the Government Code’s prescribed duties.

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, Attorney at Law

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

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

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