Government Code Procedural Primer

Jun 2014 27 | Posted by naomi.whatley


Compliance with the procedural requirements of the Tort Claims Act found in the California Government Code is a condition precedent to most lawsuits against California public entities. They are designed to give the public entity an opportunity to conduct a timely investigation, and appropriately respond to the claimant before litigation is commenced.

  • In most cases, a claimant must file a written, formal, timely claim containing specific information to recover money or damages from a local public entity.
  • Government Code section 815 states, "except as otherwise provided by statute a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."
    • Therefore all California governmental liability is statutory, except as required by the state and federal constitutions.
  • A public employee is liable for any injury caused by his or her act or omission "to the same extent as a private person," except as provided by statute.
    • Included in the statutory exceptions are a number of immunities.
    • GC 825 requires the governmental employer, subject to certain qualifications, to defend and indemnify their employee for acts within the course and scope of employment.
  • There is a statutory requirement, subject again to certain exceptions, that an action for "money or damages" may not be maintained against a public entity, or its' employees, unless a written claim has first been timely presented to the defendant public entity and rejected in whole or in part.
  • There can be a settlement of a loss without a filing claim, but subject to some exceptions, there cannot be a suit without a timely claim and rejection.
  • The facts underlying each cause of action in the suit must have been fairly reflected in a timely claim.
  • The claims requirements apply to claimants who are minors, disabled or incompetent.
  • The doctrine of substantial compliance excuses incomplete claims as long as they give the public entity needed essential information.
    • The public entity's actual knowledge of the facts of the claim does not excuse the claimant from non-compliance with the claim filing requirements.

Presentation of claim:

  • The claim must be written, but need not be on the local public entity's form.
  • Essential elements of the claim:
    • The names and addresses of the claimants and the person to whom notices are to be sent;
    • A statement of the date, place, and other circumstances of the occurrence or transaction;
    • A description of the indebtedness, obligation, injury, damage or loss incurred as far as they are known when the claim is presented;
    • The name of the public employee who caused the injury, if known;
    • The amount claimed, if less than $10,000, or an indication that it is to be a limited civil case (under $25,000) if over that amount.
  • A claim may be prepared, signed, and presented by a third person acting on the claimant's behalf.
    • The signature of the person presenting the claim authenticates it and assures its truthfulness and reliability.
    • Anyone signing a false or fraudulent claim and presenting it to the public entity is guilty of a misdemeanor or felony.
  • Time Limits — measured from the "date of accrual":
    • Must be submitted within 6 months for death, injury to a person, injury to personal property and damage to growing crops.
    • Must be submitted within 6 months of service of suit when seeking indemnity through a cross-complaint.
    • Must be submitted within 1 year for "any other" cause of action.
    • The "date of accrual" is normally considered the date of injury.
    • Generally the time limits are mandatory, and contain no authorization for tolling or extending the time limits. (See late claims provisions, below)
  • Presentation of the claim is to be made to the clerk, secretary, or auditor of the public entity either in person, or by mailing the claim to one of these people or the governing body at its principal office.
  • The time of notice is based on personal delivery or when the claim or response is placed in the mail.

Consideration of claim:

  • Notice of Insufficiency: the entity has 20 days to return the claim for a substantial defect; failure to do so waives the defect.
  • Acceptance or Rejection: the entity has 45 days from receipt of claim to reject in whole or in part, or accept in whole, or in part.
    • Public entities are allowed to reconsider rejected claims for the purpose of settlement.
  • Failure of the entity to formally act within 45 days results in the deemed rejection of the claim by operation of law.
  • Written notice, including language specified in the Government
  • Code, of the entity's action is required by personal delivery or mail to the claimant's designated address.
  • Claimant normally is limited to 6 months from the date of rejection to file suit.
  • If the public entity fails to respond with proper written notice, the claimant has two years from the date of accrual to file suit.
  • The public entity can give notice of late claim, and return, within 45 days of receipt, a "6 month claim" that has been submitted after the time limit. Failure to send a timely notice waives the defense of untimeliness.
    • Claimant can then make an application to the public entity for leave to present a late claim within a year of the date of accrual. If denied, the claimant can petition the court for relief from the claims requirements by citing "mistake, inadvertence, surprise or excusable neglect," and a showing that the public entity's defense was not prejudiced by the delay.
    • There is no late claim provision for "1 year claims."
  • Applications for leave to present a late claim must be granted by the entity when:
    • The claimant was a minor during the entire 6-month claims presentation period.
    • The claimant was physically or mentally incapacitated during the entire 6-month period, and that incapacity caused the failure to file a timely claim.
    • The claimant died during the 6-month period. 

Causes of Action outside the Tort Claim Act:

  • A claimant can bring suit against a public entity without complying with the Government Code claims requirements for certain causes of action, including:
    • Deprivation of state civil rights;
    • Employee discrimination and harassment claims under California law;
    • Inverse condemnation;
    • Actions not strictly for "money or damages" like injunctive relief;
    • Actions brought under federal law.


  • The claimant/plaintiff's civil complaint must allege the presentation and rejection of a claim in all actions to which the claims procedures apply. Failure to plead compliance leaves the pleadings vulnerable to attack.


While the claims requirements can provide a valuable defense to public entity exposures, the greater importance lies in the opportunity it affords to conduct a timely investigation, and to make an appropriate informed decision that hopefully will avoid the conflict and expense of litigation.