California Tort Claims Act

Navigating the California Tort Claims Act in Police Misconduct Cases

The California Tort Claims Act outlines the procedures for filing a claim against a public entity or a public employee for personal injury. The first step is to file a written tort claim, and this page provides details about the relevant statutes that govern this process. The claim must contain specific information, and there are exceptions and time limits that must be adhered to. This page also explains what happens if the claim is rejected and outlines the process for filing a lawsuit.

Relevant Statutes

The first step in the process of filing a personal injury suit against a public entity or a public employee acting within the course and scope of his or her employment is to file a written tort claim. The statutes governing the claim presentation procedures of the California Tort Claims Act are located at California Government Code 900 et seq.

  • Cal. Gov. Code Section 905 lists the exceptions to the claim filing requirement.
  • Cal. Gov. Code Section 910 lists the required contents of the claim.
  • Cal. Gov. Code Section 911.2 instructs that the claim must be filed within six months of the date of injury.
  • Cal. Gov. Code Section 911.4 instructs that an application to present a late claim must be presented within one year after accrual of the cause of action. This period may be tolled for a mentally incapacitated claimant who does not have a guardian or conservator, but it is not tolled for a minor
  • Cal. Gov. Code Section 911.6 instructs that a claimant who was a minor during the entire claim period may file a late claim, and the public entity must accept the claim as timely.
  • Cal. Gov. Code Section 945.6 instructs that the lawsuit must be filed within 6 months of the date of rejection of the claim. However, if the public entity does not reject the claim in writing, then the lawsuit must be filed within two years from the date of accrual of the cause of action.
  • Cal. Gov. Code Section 946.6 instructs that if the public entity does not accept a late claim as timely, then the claimant has six months to file a petition with the superior court of the relevant county appealing the public entity’s denial of the late claim. If the petition is granted, then claimant has thirty days to file a complaint if he or she has not done so already.

Who Must File a Claim?

All claims seeking money or damages against a public entity or a public employee acting within the course and scope of his or her employment are subject to the claim requirements, except for actions which are excluded under Cal. Gov. Code Section 905. One relevant exception is for claims made for childhood sexual assault. Each individual claimant must present their own claim.

When Must the Claim Be Filed?

Claims concerning personal injury, wrongful death, damage to personal property, or damage to crops must be presented to the public entity within six months of the accrual of the claim. Cal. Gov. Code Section 911.2

Against Whom is the Claim Filed?

The claim will be filed against the municipality and its involved employees. If a sheriff’s deputy was involved in the incident, then the claim shall be presented against the County. If a police officer was involved in the incident, then the claim shall be presented against the City.

Check to make sure that the police department is not contracted out of the local sheriff’s department. The claim is not against the police department or sheriff’s department.

Contents of the Claim

The claim must be in writing, and signed by the claimant or his or her representative.

  • Cal. Gov. Code Section 910.2. The claim must contain the following information to be a sufficient claim:
  • Claimant’s name and mailing address (provide the attorney’s address)
  • Name and address to which to send notices.
  • Date, place, and circumstances of the claim.
  • Description of the injury, damage, or loss for which payment is sought.
  • Name of any public employee causing the loss if known.
  • An indication as to whether the claim would be made in limited jurisdiction court or not; or the amount of the claim if it is under $10,000.

⚖️ Cal. Gov. Code Section 910.3

Compliance with the Claim Filing Requirements

California Courts require substantial compliance with the California Tort Claims Act. City of San Jose v. Superior Court, 12 Cal. 3d 447 (1974); Wheeler v. City of San Bernardino, 76 Cal.App.3d 841 (1978); Cal. Gov. Code Section 910.4 (a claim which substantially complies with the requirements of the local form is deemed to comply with the statutory requirements). As for the description of events, claims are construed liberally. Foster v. McFadden, 30 Cal. App. 3d 943 (1973)(facts stated only by inference). The description need not be in evidentiary detail, Blair v. Superior Court, 218 Cal. App. 3d 221, 225 (1990), but should be detailed enough to allow the city to investigate and consider the claim. Crow v. State, 222 Cal.App.3d 192, 201- 202 (1990).

Amending the Claim

A claim may be amended if the amendment would still be timely as an initial claim and if the entity has not taken final action on the claim. Gov. Code Section 910.6(a).

Submission of the Claim

The Tort Claims Act requires that the claim be submitted to the clerk, secretary, auditor, or governing body of the public entity. Cal. Gov. Code Section 915(a). The claim may be delivered personally or sent by mail. Gov. Code Sections 915(a)(1-2), 915.2.

The Public Entity’s Response to and Action on the Claim

Possible Responses from the Public Entity:

  • Rejection by Operation of Law: A public entity must act on a claim within forty- five (45) days after the claim was presented. Cal. Gov. Code Section 912.4. If no rejection is received within 45 days, then the claim is deemed rejected by operation of law. The public entity can trigger the usual six-month statute of limitations for filing suit by sending a notice of rejection even after the claim was deemed rejected by operation of law. The six months starts to run from the date of the late rejection notice. Glorietta Foods, Inc. v. City of San Jose, 147 Cal. App. 3d 835, 838 (1983).
  • Acknowledgment of Receipt: The city may also settle a disputed claim. Cal. Gov. Code Section 912.6(b). If the claimant accepts the money, he or she cannot bring suit against the public entity. Id.
  • Notice of defect: The public entity must give notice of any substantial defect in a presented tort claim within twenty days. Once it has done so, the city cannot act on the claim for fifteen days, while it gives the claimant a chance to correct the defect. Cal. Gov. Code Section 910.8.
  • Denial: If the application is denied, the claimant must be informed in writing that he or she has six months to petition court for relief. Cal. Gov. Code Sections 911.8, 946.6. The content of a rejection is regulated by the Tort Claims Act. The Government Code mandates that the notice should contain the following warning concerning the time limits for filing suit in substantially this form: “WARNING: Subject to certain exceptions, you have only six (6) months from the date this notice was personally served or deposited in the mail to file a court action on this claim. See Cal. Gov. 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.” A defective notice may be ruled to be no notice at all. Scott v. Los Angeles, 73 Cal. App. 3d 476, 482 (1977). If the public entity fails to act on a tort claim, then the claimant would have two years to file suit rather than six months. Cal. Gov. Code Section 945.6.

Submission of a Late Claim

The California Tort Claims Act allows a claimant to apply for permission to file a late claim. Cal. Gov. Code Section 945.4, 946.6. An application to present a late claim must be presented within a reasonable time, not to exceed one year after expiration of the claims period. Cal. Gov. Code Section 911.4. This period may be tolled for a mentally incapacitated claimant who does not have a guardian or conservator. Id. The late claim application

period is not tolled for a minor, but a claimant who was a minor during the entire claim period may file a late claim. Gov. Code Section 911.6.

The public entity must grant an application to file a late claim if the failure to file a timely tort claim was due to one of the following:

  • Mistake, surprise, inadvertence, or excusable neglect.
  • Claimant’s minority throughout claim period.
  • Claimant’s mental incapacitation throughout the claim period or
  • Claimant’s death before the end of the claim period.

There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence. Department of Water and Power of City of Los Angeles v. Superior Court, 82 Cal. App. 4th 1288, 1293 (2000). Thus, where the potential claimant and his or her counsel has possession or access to information showing the liability of the public entity, the mistake in not presenting a timely tort claim is not excusable. Id. at 1291. With respect to late claim applications from minors, the only question will be whether the minor acted diligently in presenting the claim. Any delays caused by the parents or attorneys are not attributable to the minor. Tammen v. County of San Diego, 66 Cal.2d 468, 480 (1967).

Rejection of a Late Claim and Appeal to the Superior Court

If the public entity does not accept the late claim as timely, then the claimant has six months to file a petition with the superior court of the relevant county appealing the public entity’s denial of the late claim. Cal. Gov. Code Section 945.4. If the petition is granted, the claimant has thirty (30) days to file a complaint if he or she has not done so already. Cal. Gov. Code Section 946.6(f).

Filing the Lawsuit

The lawsuit must be filed within six months of the date of the written rejection of the claim. This applies to any state law claims asserted in the claim and the lawsuit. The plaintiff must plead compliance with the Tort Claims Act in any action that was subject to the claims presentation requirements. Dujardin v. Ventura County Gen. Hosp., 69 Cal.App.3d 350 (1977). If not properly plead, it is subject to attack. Id. Of course, if the plaintiff complied with the Tort Claims Act but simply failed to plead it, the defect may be cured by amendment. Bohrer v. County of San Diego, 104 Cal. App. 3d 155, 160 (1980).