The time for filing of the lawsuit is wholly dependent on the public entity’s response to the government claim.

Before a public entity or its employee can be sued, a plaintiff must first present a written claim known as a “government claim” to the public entity within a specified amount of time, which is dependent on the type of claim, and the public entity must accept or reject the government claim. (Cal. Gov. Code §§ 945.4, 950.6(a)).

To be timely, a government claim based on causes of action for death and personal injury must be presented to the public entity within six months of the date the cause of action accrued. (Cal. Gov. Code § 911.2(a)). A government claim relating to a cause of action other than personal injury (e.g., breach of contract) must be presented to the public entity within one year of the date the cause of action accrued. Id.

The claim must include the following contents: (a) the name and post office address of the claimant; (b) the post office address to which the person presenting the claim desires notices to be sent; (c) the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted; (d) a general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim; (e) the name or names of the public employee or employees causing the injury, damage, or loss, if known; (f) the amount claimed if it totals less than ten thousand dollars as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars, no dollar amount shall be included in the claim, but be sure to indicate whether the claim would be a limited civil case. (Cal. Gov. Code §§ 910).

Government Code section 915(a) establishes the manner of delivery of a claim against a public entity. Proper “presentation” is achieved when a government claim is either delivered to the clerk, secretary or auditory, or is mailed to the clerk, secretary, auditor or governing body at its principle office and these folks actually received the government claim.

The Public Entity’s Response to a Government Claim.

The time for filing of the lawsuit is wholly dependent on the public entity’s response to the government claim. Once the public entity is in receipt of the government claim, the public entity has 45 days to grant or deny the claim. (Cal. Gov. Code § 912.4). If the public entity serves the notice of rejection of the claim, the plaintiff must file the lawsuit within six months of the date of service of the notice. (Cal. Gov. Code § 945.6(a)(1)). If the claim is not acted upon within 45 days, it is deemed rejected by operation of law on the last day of the 45-day period and the plaintiff, in this instance, has two years from the accrual of the cause of action to file the lawsuit. (Cal. Gov. Code § 945.6(a)(2)). Notably, a public entity can serve a notice of rejection even after the 45-day period. If the notice of rejection is served after the 45-day period, even if it was already deemed rejected expressly or by operation of law, the lawsuit must be filed within six months of the date of notice.

Presenting a Late Government Claim.

If the time to present a timely government claim has passed, a claimant can attempt to present what is known as a “late claim” to the public entity by submitting an application for leave to present a late claim within one year of the accrual of the cause of action. (Cal. Gov. Code § 911.4). In the application, be sure to explain the reason why the claim was not presented in a timely manner and include a copy of the government claim. Once the application is received by the public entity, the public entity can do one of two things: (1) serve written notice denying the application; or (2) deny the application by not responding at all. (Cal. Gov. Code § 946.6).

If the public entity denies the application for permission to file a late claim, the plaintiff may file a civil petition for relief from the claims presentation requirements of Section 945.4. (Cal. Gov. Code § 946.6). The petition must be filed within six months after the application is denied or deemed to be denied. Id. The petition must show: (1) that an application was made to the public entity under Section 911.4 and was denied or deemed denied; (2) the reason for failure to timely present the claim to the public entity within the time limit specified in Section 911.2; and (3) the information required by Section 910. Id.

California Government Code section 946.6(c) provides that the court will grant relief only if it finds that (1) the application to the public entity for leave to file a late claim was made within a reasonable time not to exceed one year after accrual of the claim as specified in Section 911.4(b), (2) was denied or deemed denied by the public agency pursuant to Section 911.6, and (3) one or more of the following is applicable: (a) the failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect, unless the public entity establishes that it would be prejudiced; (b) the person who sustained the alleged injury, damage or loss was a minor; (c) the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated; or (d) the person who sustained the alleged injury, damage or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim.