California Tort Claims Act – How to Sue The Government

The California Tort Claims Act (CTCA) is a law that protects the state government from liability in certain personal injury cases. The law states that, generally, “a public entity is not liable for an injury” that the public entity or any of its employees caused. The term for this is “sovereign immunity.”

Here are five key things to know about the CTCA:

1. There are exceptions that allow you to bring an injury claim against the government and seek damages.
2. In most cases, you must file proper notice of a claim within six months of the injury or accident.
3. The government may be liable in circumstances involving premises liability where it had notice of the dangerous condition.
4. The government may also be responsible when it was vicariously liable for the negligence of an employee.
5. Successful claims may result in compensatory damages for your medical bills, loss of income, property damage, and pain & suffering.

Below, our California personal injury attorneys address frequently asked questions:

• 1. What is the California Tort Claims Act?
• 2. When is the government responsible for my injuries?
• 3. How do I file a claim?
• 4. What are the time limits for bringing a claim?
• 5. What happens after I file my claim?
• 6. What do I do if the government rejects my claim?
• Additional reading

1. What is the California Tort Claims Act?

If a government agency, employee, or the government itself is responsible for your injuries, there are very specific requirements you must follow in order to file a personal injury lawsuit against the government. Under the California Tort Claims Act, you are required to give notice to the government within a set period of time or you lose your opportunity to seek money damages from the party that injured you.

However, the law also carves out certain limited exceptions that allow the State of California to face liability. For those limited exceptions, a very strict filing claim procedure is in place which you must follow to recover damages.

What is sovereign immunity?

Sovereign immunity is a legal concept England created centuries ago, which protected the King from any lawsuit which caused damages to others. Over the many years since that time, every state has adopted the concept in various forms to protect public entities from lawsuits for injuries caused by them or their employees.¹

In most states, the sovereign immunity statutes carve out specific exceptions to the law by which you can still sue the government or another public entity. These exceptions are usually governed by a strict procedure that must be followed.

What claims does the California Tort Claims Act cover?

Under the California Tort Claims Act, all claims for civil liability or “money damages” are covered. These may include:

• Car accidents;
• Bus accidents;
• Burn injuries;
• Slip and fall accidents;
• Medical negligence;
• Nuisance;
• Sports injuries at school;
• Breach of contract; and
• Intentional torts, like assault & battery.

Lawsuits against teachers and school districts in California generally proceed by way of the CTCA.

What types of claims does the California Tort Claims Act not permit?

The Act generally does not allow claims for almost any other reason, except those above. These include:

• Injuries caused by the failure to pass a regulation, ordinance, or law;
• Injuries caused by the California National Guard;
• Injuries caused by failure to enforce a specific law;
• An injury caused by an issuance or failure to issue any permit, license, certificate, or other governmental authorization;
• Any injury caused by a failure to inspect any property which the government itself does not own;
• Injuries caused by any misrepresentation; or
• Damages as a result of reporting identifying information of convicted drug offenders to local schools.

Moreover, punitive damages are generally not allowed in a claim against the government. These types of damages are rarely awarded in a personal injury claim, and may require a showing of recklessness, fraud, or intentional harm. However, these types of damages are specifically excluded from liability under the law.

Additionally, any claim which is not “for money or damages” cannot be filed under the California Tort Claims Act.

Example: Janet is a contractor who has agreed to build a shed for a customer by the end of next week. She goes through the paperwork for the necessary building permit and submits it but the permit is denied. Janet is unable to fulfill her contract, and is sued as a result. She cannot sue the government under the CTCA for denying her permit, even though that denial was the ultimate cause of her damages.

2. When is the government responsible for my injuries?

Under the Act, the government can be held legally responsible for personal injury damages in certain situations. These situations include:

• The negligent acts of employees,
• The negligent acts of independent contractors,
• Premises liability for dangerous conditions on government property, and
• When damages are caused by the public entities’ failure to carry out a duty imposed by law.

The entity responsible in a California Tort Claims Act claim is generally the government entity or agency responsible for the employee, property, or carrying out a duty. The CTCA applies to state, county, and local government agencies and departments, including city or municipality agencies.

When can the government be liable for acts of its employees?

A government entity or agency is responsible for any negligent acts committed by its employees, if:

• The employee was acting within the scope of their employment; or
• The employee was carrying out some government function.²

If a government employee is the cause of your personal injury damages, you should file a claim under the California Tort Claims Act against the agency or entity that employs that negligent employee. The Act does not provide for a lawsuit against the employee personally but generally only against the employer.

When can the government be liable for the acts of independent contractors?

The government may be held responsible for the negligent acts of its independent contractors when:

• The independent contractor was acting within the scope of its assignment or agreed-upon duties; or
• The independent contractor was carrying out a government function for which it had authority.

The same rules apply under the Act for independent contractors as they do for employees. Again, the independent contractor may not be sued individually under the California Tort Claims Act but instead the lawsuit must be against the government itself.

When can the government be liable for failure to carry out a legal duty?

If a law imposes a particular duty upon a government entity or agency, and that entity or agency fails to fulfill that legal duty, the government can be held liable for injuries caused as a result under the California Tort Claims Act.

Example: If a government agency is responsible for ensuring that roads are kept in a safe manner, and the agency negligently fails to correct a large pothole it has known about for months, a person injured by the unsafe road condition may be able to sue the agency for damages under the Act.

Note, however, that many government officials acting in their discretionary capacity are protected by qualified immunity.

Who is responsible for accidents that happen on government property?

When the government owns or controls the property, the government may be liable for injuries caused by any hazardous condition on the property. However, premises liability claims against public entities have a different standard.

In a premises liability claim against the government, you have to show:

1. The property was in a dangerous condition at the time of the injury;
2. The injury was proximately caused by the dangerous condition;
3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and either:
   1. The danger was created by a negligent or wrongful act of a public employee, or
   2. The public entity had actual or constructive notice of the dangerous condition and enough time to correct or protect against the dangerous condition.³⁴

To establish notice, the dangerous condition may have existed for a period of time and was obvious enough that the government entity should have discovered the condition and its dangerous character.⁵

3. How do I file a claim?

To file a claim against the State of California, a county government, or a municipal government agency, you must give notice of your claim.⁶ This may include filing a report or sending a letter which may suffice as notice, so long as it contains all of the necessary requirements. However, many agencies and municipalities have claim forms that you can fill out to provide notice of the claim.

An attorney at the Shouse Law Group can ensure you meet all of the filing requirements, including making sure you file your claim within the appropriate time limit. Failure to properly file a claim or filing the claim too late could mean your claim will be denied.

What information does my claim have to include?

If you are seeking to file a lawsuit against the government agency or entity, you must file a claim which includes the following information:

• Your name and postal office address.
• The post office address to which you desire notices to be sent.
• The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
• 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.
• The name or names of the public employee or employees causing the injury, damage, or loss, if known.
• The amount claimed if it totals less than ten thousand dollars ($10,000) 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 ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. ⁷

Failure to include all of the necessary information can invalidate your claim. If you do not file a proper claim within the time period set forth by law, the government may deny the claim.

What is a “limited case”?

If your claim exceeds $10,000, you may not be required to indicate the amount you seek in your claim, but you are required to indicate whether the claim is a “limited civil case.” A civil case is a “limited civil case” if you are seeking less than $25,000, not including costs and reasonable attorney fees, and you are not asking for any of the following:

• A permanent injunction: A court order which commands the government agency or entity to or prevents it from taking the complained of action or activity;
• An action which seeks a determination of title to real property;
• Enforcement of any order under the Family Code; or
• An action for declaratory relief: A case that asks the court to state and establish the rights and other legal obligations of the parties involved, but does not actually order enforcement.

It is important to discuss your case with an experienced attorney before filing a claim. Many injury victims undervalue their case or do not take into account all their damages. Even minor injuries can require follow-up care or continuing medical treatment. Not asking for enough to fully compensate you for your injuries could leave you paying out of pocket for something that was not your fault.

Do I have to file a lawsuit if I filed a claim?

If you file a proper notice of claim, you may not have to file a lawsuit immediately. By filing a claim, you leave open the option of filing the later lawsuit. However, you may not have to follow through with the lawsuit if the government agency agrees to pay the claim.

Example: Carlos sustains an injury as a result of a broken staircase while in a municipal building. Carlos and his attorney file a claim with all of the necessary information and within the time limit. Later, Carlos realizes that he does not want to go through with the lawsuit. He is not required to under the law, but he kept his options open by filing his claim.

4. What are the time limits for bringing a claim?

The act sets forth very strict guidelines for filing a claim against a government entity or agency. Failure to follow these strict guidelines may result in the dismissal of any late claim. This means that an otherwise proper lawsuit for which you could receive damages may be invalid because it was outside of the strict, and often short, time period in which to file.

Most personal injury claims have a limited time to file a claim. However, the statute of limitations, or time limit, to file a claim against government entities is generally shorter than claims against private parties.

You must file a notice within six months for claims that concern:

• Personal injury,
• Wrongful death,
• Damage to personal property, or
• Damage to crops.

You must file the notice within six months of the date of the injury. In very limited circumstances, the six-month period may not begin to run until you first discover (or should have discovered) the injury. For example, in a medical negligence case, you may not be aware of an accident or injury until weeks or months later. ⁸

The time limit to bring claims that relate to all other causes is within one year of the injury. Some of these actions would include:

• Breach of contract actions;
• Damage to real property; or
• Declaratory judgment actions not subject to a six-month limitation.

It is critical that you file the claim within the appropriate time limit to protect the lawsuit from dismissal.

Can I file a late claim?

Late claims without a qualifying reason will generally be denied. However, the government may accept a late claim when you file your claim along with an “application for late filing.” There are four valid reasons for being late in filing a claim:

1. Mistake, inadvertence, surprise or excusable neglect;
2. Minority (you were a minor under the age of 18 during the entire six-month period);
3. Mental or physical incapacity; or
4. Death of a claimant.⁹

Filing a late claim is subject to further strict requirements, but with the help of an experienced personal injury attorney, your chances of successfully filing your late claim may increase significantly.

5. What happens after I file my claim?

Once you file your claim, the public agency generally has 45 days in which to respond or take action. If and where you mail the claim can extend this timeframe.

There are 5 possible outcomes after a claim filing:

1. The entity fails to respond within the appropriate time period. This means that the government rejected the claim.
2. The entity may approve the claim in whole or in part. The entity may offer a compromise to the claim, which may constitute a settlement of the whole case.
3. The entity may reject the claim.
4. The entity may state the claim does not have sufficient information. You can amend the claim within the time period set by law to fill in that missing information.
5. The entity may return the claim for being untimely.

6. What do I do if the government rejects my claim?

After a claim rejection, you can file suit in state court against the government. To do so, file a petition with the Superior Court asking for relief from the claims requirement. ¹⁰

If the government rejected the original claim in whole or in part by some form of notice from that government entity, you have only six months to file the petition with the court.

If the reason for the original claim’s rejection was because the governmental entity failed to respond to the notice, the time in which to file the petition is two years from the date of rejection.

What if the court grants my petition?

If the court grants the petition to proceed without the claim requirement, you must file your lawsuit within 30 days. Failure to file suit within this time period can result in the inability to ever file the suit again. ¹¹

What if the court denies my petition?

If the court denies the petition to proceed without the claim requirement, you may appeal the order denying the petition. Your California personal injury attorney can file the appeal on your behalf. If successful on appeal, you will be able to file your case against the government.

Additional reading

For more in-depth information, refer to these scholarly articles:

• California Tort Claims Act: Discretionary Immunity – Southern California Law Review.
• The Constitutional Infirmity of the California Government Claim Statute – Pepperdine Law Review.
• California Public Entity Immunity from Tort Claims by Prisoners – Hastings Law Journal.
• Notes on the California Tort Claims Act–The Discretionary Immunity Doctrine in California – Hastings Law Journal.
• California Governmental Tort Liability and the Collateral Source Rule – Santa Clara Lawyer.

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Legal References