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Late Notices to Public Entities

In a previous article, some of the immunities that public entities enjoy against civil litigation were considered. A related topic involves the pre-litigation notice that such entities are statutorily entitled to: with almost no exceptions, lawsuits involving the government and its agencies must be preceded by written notice that a lawsuit will commence against that entity. Timing is important: for the most part, claimants must provide a public entity with notice some six months up to two years-depending on the type of case-before a lawsuit may commence against that entity (California Government Code §945.4). California Government Code Section 910, et seq., governs the manner in which this notice must be presented to the entity or entities responsible, and a failure to adhere to one or more parts of this section will result in the dismissal of suits which might otherwise have been meritorious. When a public entity is not given pre-suit notice on time, the courts may allow a late filing of the notice to satisfy the requirements of the code section, but a plaintiff must make a showing pursuant to Government Code Section 946.6, file a motion with the court which would have jurisdiction over the lawsuit, and the court usually wants to sec that a pre-suit claim was either rejected outright or deemed denied–statutorily because of a non-response–by the public entity itself.

This code section has been broadly interpreted across a wide spectrum of civil suits filed against public entities. Personal injuries, contract law, suits arising from real estate transactions such as buying land from a public entity, and even employment law-when a public employee sues its employer–arc all categories of law where the court expects a claimant to give notice prior to a complaint. Tn fact, the courts have gone so far as to note that, “claims statutes must be satisfied even in face of the public entity’s actual knowledge of the circumstances surrounding the claim” (12 CaL3d 447, p. 455). This means pre-suit notice must be given even after a lawsuit is filed or other documents are sent to the public entity which would indicate a potential lawsuit such as a letter or bills evidencing losses. Sometimes the court may deem that notice was effected by virtue of a letter; other times, the court demands a strict adherence to the claim forms used by the entity. This is because, as the courts often repeat while dismissing a suit for failing to adhere to the code, the purpose of it isn’t to prevent surprise but rather to allow the public entity the opportunity to fully investigate and prepare for a claim prior to its being filed (p. 455). Fonns provided by the entity, therefore, help to ensure that claimants are given the opportunity to fully notice the public entity in a way that a letter or other documents may not. That said, claims which adhere to both the timing and form given in the government codes seem to fair better when decided by the superior court.

Demonstrating a valid reason for the delay, however, can be complicated as the failure to file on time must be because of excusable neglect/inadvertence/surprise, because the claimant was a minor, or because the claimant was unable to file the claim due to a physical and/or mental incapacity or death. Despite the seemingly plain language, however, it isn’t always clear what constitutes an “excusable” mistake or incapacity; even claims involving minors may be denied if there is too much delay. This can make motions for late claims difficult, and recent case law demonstrates that unprepared litigants or their attorneys often struggle to satisfy the restrictive requirements of California’s Government Code. A common problem involves identifying all the defendants in a public entity claim.

Ordinarily, plaintiffs have some protection against statutes of limitation involving unknown defendants. The use of “doe” defendants can allow plaintiffs to preserve a statute of limitation and then amend later to tum a “doe” into a named defendant: so long as the cause of action itself is preserved, the courts will allow some leeway in adding these defendants. However, this is not the case with public entity claims. It may be that the plaintiff fails to discover, for example, that the land an injury occurred on was jointly owned, operated, or controlled by multiple public entities. While the plaintiff may satisfy the code section as to the city which owns the land, the plaintiff may not discover that the department of water for the county–which is a separate entity from the local city/town–also is responsible, in some way, for the property where the injury was sustained. Upon discovering this fact-perhaps after filing the suit when someone from the other public entity is questioned under oath-~the plaintiff may then want to file a motion with the court to be permitted to provide late notice to the department of water so that they may be added to the lawsuit. Would the court allow the plaintiff to do so under the guise of excusable neglect or surprisc? It would seem to depend on how diligently the plaintiff worked to uncover the involvement of that department and how much time elapsed between that time and the time when the plaintiff first discovered or sustained the injury.

If, for example, a plaintiff discovers the identity of a public entity sometime after the time in which he or she might have given that entity notice, it would not be enough to state that the plaintiff was “surprised” by this or that this entity was missed due to “excusable neglect.” Instead, the courts expect the plaintiff to show that. “a substantial investigation” was made to determine the identities of all potential public entity defendants (84 Cal. App. 3d 529, p. 535). What, exactly, constitutes a substantial investigation, however, is unclear. In Kalsavage v. West Kern County, the court permitted a late filing for a plaintiff who claimed “excusable neglect” when an investigator in the case failed to determine the identities of a few public entities who owned land on which an injury occulTed. Because the investigator spent “part of two days in investigation” inspecting the site of the injury, questioning witnesses, and checking official records (p. 535), the court permitted the plaintiff to make a late filing against the public entities which were discovered after the time to file against them. On the other hand, had the plaintiff not investigated or if the investigation was not deemed “substantial,” the court may have denied the motion. This reveals some subjectivity in determining what is and isn’t substantial: it may be that two days of personal investigations aren’t enough in a different kind of case before another court.

Similarly, the court has been amenable to late filings when the pre-suit claim is delayed as the result of an administrative or clerical error. In this case, “excusable neglect” must be “the act of a reasonably prudent person under the same circumstances” (72 Cal. App. 2d 508, p. 513). In one recent case, a secretary for a law firm inadvertently took a deadline to file a pre-suit claim off calendar because she confused it with another date in the case relating to the preservation of evidence; as a result, the plaintiff filed the pre-suit notice late by about nine days (37 Cal. Rptr. 3d 777, p. 780). While lower courts denied the plaintiffs request to provide late notice, the Court of Appeal granted it due to the secretary’s mistake because it was deemed to be “excusable neglect.” The courts have granted similar relief when an attorney forgot to note the last day in which to file on his own calendar (13 Cal.App.3d 480). While no “substantial investigation” was necessary, the fact that these motions for late claims happened so close to the deadline-within days–helped to persuade an otherwise skeptical court that late filings would not prejudice the defendants.

That said, such “excusable neglect” may not be so excusable when the length of time extends to months or years. In a case involving a minor who suffered head injuries playing football, the court dismissed a lawsuit which failed to file an application for a late claim until six months after the deadline to do so (240 Cal. App. 4th 1019). Initially unrepresented, the claimant failed to provide notice within one year of his injury and then retained counsel. That attorney petitioned the entity itself-a local high school–for permission to provide notice late, but the entity never responded, so the request for a late filing was deemed denied on the forty-fifth (45) day after the request was filed per code. Therefore, the claimant would have had six months after it was deemed denied in which to file a motion with the superior court for an order granting permission to provide late notice. Here, the mistake was, ultimately, made by the attorney who waited more than six months to request a late filing from the superior court. Given the length of the delay, the court was less inclined to permit a late notice. What happens when a member of the government entity is itself the one who is, in some way, responsible for the plaintiff’s late filing? Can this cause “excusable neglect’? In that case, the court may permit a late-filing provided that the action by the government employee affirmatively prevented or delayed the pre-suit notice.

Again, the exact definition of what constitutes the kind of affirmative action that is excusable is not clear. Simply relying on a clerk, for example, who claims that she can accept notices on behalf of multiple public entities may not be enough; the courts expect you to perform your own due diligence and verify the veracity of information received. Still. the courts have permitted late filings when an agent for an involved public entity makes “misleading statements about the need for or advisability of a claim” (48 Ca1.3d 438, p . 445). It~ for example, a public employee threatened or coerced a claimant in an effort to stop that person from filing a claim, the courts have permitted a late filing. Yet in a more recent case involving a public employee who claimed she could accept notice on behalf of multiple public entities even though she only worked for one of them, the courts found that this would not permit late filings against those entities she actually did not work for (171 P. 3d 20 – Cal: Supreme Court 2007). Likewise, sending a package of documents evidencing a claim to someone who is not the “clerk, secretary, or auditor” of the particular public entity also is not good enough to circumvent the notice requirements even if the person appears to be an executive or supervisor at the organization (55 Cal.4th 983, p. 986). Unlike serving a private business, where proper service may be effected by giving the lawsuit to somebody at the business who is over eighteen and appears to be in charge, public entities enjoy a level of bureaucratic validation found almost nowhere else in the law.

Thus, when a plaintiff claimed he had substantially complied with pre-suit claims statutes by delivering a notice of claim to a city engineer, this was not deemed enough to satisfy the code even though the engineer appeared to have a supervisory role in the transaction which gave rise to the plaintiffs claims (171 P. 3d 20 – Cal: Supreme Court 2007). This returns to the due diligence written into public entity statutes: it is expected that claimants will conduct a thorough investigation in an attempt to ascertain the identities of all potential defendants and their agents responsible for accepting notice rather than simply taking one employee at his or her word or assuming that person is the best one to receive claims. While a clerk for a particular public entity might be expected to provide accurate information about the claims for the entity they work for, they would not be accountable for accuracy in determining other potential public entity defendants whom they do not represent. Tn sum, it is not enough to stop at the first government employee who either claims to be or seems to be in charge: the plaintiff is expected to perform their own thorough investigation. Similarly, late notices for incapacity/medical injury aren’t always as clear-cut as the language in the code would seem to imply.

Specifically, the physical or mental incapacity must be such that the claimant is unable to prosecute the claim. However, the courts also note that, “the claimant’s condition” must be “such that the claimant could not have authorized another to file the claim on his or her behalf’ or else the “claimant was not incapacitated from filing the claim” (184 Cal.App.4th 1373 p. 1385). It isn’t enough, therefore, to simply be stuck in bed: there must be some mental incapacity as well that interferes with the ability of the plaintiff to communicate his or her desires to someone else. This has meant that some injured parties, ignorant of the knowledge of government claims, wait too long to consult an attorney. Claiming a mental or physical incapacity as an excuse for the late filing, in this case, isn’t always accepted by the court.

When confronted with a grieving mother, for example, the courts took a dim view other request for a late filing (Arceneaux v. MARIN HOUSING AUTHORITY). While the plaintiff claimed to be too depressed–and therefore mentally incapacitated-due to the murder of her child, this is not enough: “every claimant is likely to be suffering from some degree of emotional upset, and it takes an exceptional showing for a claimant to establish that his or her disability reasonably prevented the taking of necessary steps” (184 Cal.AppAth 1373 p. 1385). Because Arceneaux could have directed another-such as an attorney–to file on time on her behalf, she was not deemed to be mentally incapacitated despite the severe emotional upset she suffered after her son was killed. The fact that she was unfamiliar with public entity claims and their deadlines is not an excuse, in the eyes of thc court: she could have and should have retained an attorney instead. Because she waited on that until after the deadline to give notice, her entire suit was dismissed.

While the courts seem to accept mistakes made by attorneys or investigators in the practice of their craft, they may seem less patient with individuals who do not understand the strict deadlines. As the cliche goes, ignorance of the law is not an excuse: “although the Court accepts that Plaintiff may be unfamiliar with the legal system and California’s tort-claim filing requirements, California courts have previously considered similar arguments and rejected them as a basis for granting relief under section 946.6” (Arceneaux v. MARlN HOUSING AUTHORITY). Indeed, even though the courts accept that a “reasonable person” would not be familiar with public entity claims, they still expect such individuals to exercise due diligence in retaining an attorney. Likewise, when a plaintiff claims incapacity or injury, the courts apply a strict standard in determining whether the nature and extent of the injury permits a late mingo Emotional upset aside, even seemingly legitimate medical injuries may not be enough.

In one recent case involving a nurse who worked at a convalescent home for injured veterans, the plaintiff made a public entity claim against the organization which owned/operated the home. While the nurse was diagnosed with lung cancer in 20 ll–which she claimed was from the facility’s policy of allowing vets to smoke anywhere—she did not send a notice to the public entities until more than two years after her diagnosis (Medina v. State). Again, the court recognized that she was “bedridden and required assistance to move about,” (n.p.). At the same time, it noted that she, “does not allege or credibly argue this disability was so severe, for an entire year, so as to preclude her making a claim or having one filed on her behalf.” Again, the invocation of someone else to file something on one’s “behalf” is important: so long as the plaintiff has enough mental capacity to find an attorney or other representative, then the plaintiff isn’t, according to the court, incapacitated enough to stretch out the time in which to give pre-suit notice.

The courts appear to be disinclined to grant reprieves from late claims over a temporary hospital stay or an injury which still allows thinking and independent ambulation. In another case similar to Medina, a plaintiffs motion for a late filing was denied even though he was on “temporary total disability and ‘continually’ under medical care” throughout the six month period in which he should have filed a pre-suit notice to the relevant public entities allegedly responsible for his injuries (Sanchez v. CITY OF LOS BANOS). Despite his injuries, the plaintiff was able to move around, so the court did not find him to be “so physically incapacitated as to prevent him from presenting a timely claim or authorizing someone to do so on his behalf.” As an important sidebar, the court also determined, in this case, that the plaintiffs claims of later memory problems were not compelling enough for a late filing because he actually denied a head injury in previous medical records; memory lapses might be “excusable neglect” or “incapacity,” but only if the court believes it. In addition to ensuring timeliness and a reasonable excuse for the tardiness, the courts may also judge the weight of the evidence or testimony in determining a motion for a late pre-suit notice. In the end, the court determined that “ignorance of the law, coupled with a failure to exercise reasonable diligence to consult counsel and discover the relevant facts and available remedies during the claim presentation period” barred the plaintiff from filing a pre-suit notice late. Despite this, there is an interesting twist in recent case law which clashes with the rationale behind the courts’ decisions in both Medina and Sanchez.

In Barragan v. County of Los Angeles, the lower courts determined, as it did in Medina, that the incapacity must be “an all-encompassing disability which prevents the claimant from even authorizing another to file a claim” (p. 1384). However, in the end, the court found in favor of Barragan and allowed her to proceed with a late notice against the county. Here, the court noted that Barragan’s injuries, “dominated her waking hours during the six-month period” in which she should have given notice or found someone to do so for her. Furthermore, the court found that “these injuries, while not sufficient to establish incapacity” did not need to be, “wholly disregarded in determining whether Barragan’s neglect” in finding an attorney at this time, “was excusable.” Tn other words, if a claimant is injured to such an extent that it “dominates” her life, this may be enough to permit a late filing on the basis of excusable neglect: “When a claimant is disabled, even if not so limited as to satisfy the incapacity basis for relief, that disability could justify a trial court in concluding that the claimant’s failure to contact an attorney was itself excusable neglect.” In other words, by combining the language of both the physical/mental incapacity part of the code and the excusable neglect options, the courts may determine that a non-incapacitating injury could lead to excusable neglect in finding an attorney. It remains to be seen how widely the California courts will apply this concept. However, it is also noteworthy that Barragan’s claim was also not as stale as Medina’s, and while the court may not explicitly identify timeliness as a factor, it does seem clear that they are more sympathetic to plaintiffs who don’t delay in either pursuing the claim or finding a competent attorney to do so.

Public entity claims are intentionally tricky. Not only does the government get to act as the judge, jury, and defendant during the pre-litigation phase, they also enjoy a host of protections and immunities if a claim ever advances to an actual lawsuit. Delays, even seemingly innocuous or excusable ones, can be especially fatal, so it is important to ensure that a thorough investigation is completed. As case law demonstrates, it is also critically important to contact an attorney when your injury may be the result of a public entity such as a city, government agency, or the state itself. By waiting on this-even for a period as short as six months–you may inadvertently lock yourself out of any remedies against the public entities responsible for your damages.


Arceneaux v. MARIN HOUSING AUTHORITY, Dist. Court, ND California 2015

Barragan v. County of Los Angeles. 184 Cal.AppAth 1373 (2010) 109 Cal.Rptr.3d 501

California Government Code §§910, 945, and 946, et seq.

CITY OF SAN JOSE v. THE SUPERIOR COURT OF SANTA CLARA COUNTY. 12 Ca1.3d 447 (1974) 525 P.2d 70 I liS Cal. Rptr. 797.

City of Stockton v. Superior Court. 68 Cal.Rptr.3d 295 (2007) 171 P.3d 20.42 Cal.4th 730

DiCampli-Mintz v. County of Santa Clara. 55 Cal.4th 983 (2012) 150 Cal.Rptr.3d 111 289 P.3d 884

Elms v. Elms, 72 Cal. App. 2d 508 Cal: Comt of Appeal 1946

Flores v. Board of Supervisors, 13 Cal. App. 3d 480 – Cal: Court of Appeal, 2nd Appellate Dis1., 2nd Div. 1970

Greene v. State of California, 222 Cal. App. 3d 117 – Cal: Court of Appeal, 4th Appellate Dist., 3rd Div. 1990

JM v. Huntington Beach Union High School Dist., 240 Cal. App. 4th 1019 ~ Cal: Court of Appeal, 4th Appellate Dist., 3rd Div. 2015

John R. v. Oakland Unified School Dist., 769 P. 2d 948 – Cal: Supreme Court 1989

Kaslavage v. West Kern County Water Dist., 84 Cal. App. 3d 529 – Cal: Court of Appeal, 5th Appellate Dist. 1978

Medina v. State. Cal: Court of Appeal, 1st Appellate Dist., 1st Div. 2016

Sanchez v. CITY OF LOS BANOS, Cal: Court of Appeal, 5th Appellate Dist. 2008

Viles v. State of California, 423 P. 2d 818 – Cal: Supreme Court 1967