Written by attorney Henry Harmeling IV

Filing a late government claim in California

If you have a claim against a government entity in California, you have six months from the date of the incident (also known as a date of loss) within which to file a claim for damages. (Cal. Govt. Code §§ 901, 911.2.) Even if your claim is otherwise timely (e.g., the statute of limitations has not yet expired), your claim will be denied if it is filed more than six months after the accrual of a cause of action.

You are not, however, automatically out of luck if you have failed to file your claim within the six-month statutory period. There are four grounds for granting an application to file a late claim:

(1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its defense of the claim by the failure to present the claim within the time specified in Section 911.2. (2) The person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim. (3) The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of such disability failed to present a claim during such time. (4) 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.

(Cal. Govt. Code § 911.6(b).)

Of particular interest is the ability to claim mistake, inadvertence, surprise, or excusable neglect. (See Cal. Govt. Code § 911.6(b)(1).) Of course, most members of the lay public (and even some of their attorneys) have no idea that the statutory time period for filing a government claim is only 6 months. The language in section 911.6(b)(1) mirrors the language of Cal. Code Civ. Proc. § 473, which allows for a defaulted party to have the default set aside on the grounds of mistake, inadvertence, surprise, or excusable neglect. California courts have held that a decision under CCP § 473 must be rooted in a sound discretion, based on a fair consideration of the evidence and grounded on principles of justice and fair dealing; it is not a mental discretion but an impartial one guided by fixed legal principles to be exercised in conformity with the spirit of the law in a manner to subserve and not to impede or defeat the ends of substantial justice. (Hansen v. Bernstein (1952) 110 Cal.App.2d 170, 172.) While courts are liberal in relieving parties of defaults caused by inadvertence or excusable neglect, and while they much prefer that a case should be heard on its merits, they do not act as guardians for incompetent parties or parties who are grossly careless as to their own affairs. There must be rules and regulations by which rights are determined and under which judgments become final. (Beall v. Munson (1962) 204 Cal.App.2d 396, 400 (citing Gillingham v. Lawrence (1909) 11 Cal.App. 231, 233-234).) In Gillingham, the court stated, “The defendant could read, and the summons expressly told him the time within which he must appear and answer. He let the time pass, and never even consulted an attorney. He was guilty of such carelessness and lack of diligence as could not be imputed to a prudent business man in a matter of material concern to himself." (Gillingham, supra, 11 Cal.App. at 233-234.)

Contrast the facts in Gillingham with a member of the public who has no idea how long he or she has to file a government claim. There are two types of mistake that potentially give rise to grounds for relief under Cal. Code Civ. Proc. § 473 (and Cal. Govt. Code § 911.6(b)(1)): mistake of fact and mistake of law. Mistake of fact is when person understands facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. (Hodge Sheet Metal Products, supra, 189 Cal.App.2d at 656-657.) If you have an understanding that you have two years to bring a negligence claim (for example, on a personal injury action against a government entity), you have a mistaken belief as to the legal consequences of those facts, grounds for accepting an application to file a late government claim.

Inadvertence is defined by Black’s Law Dictionary (6th ed.) as “heedlessness; lack of attention; want of care; carelessness; failure of a person to pay careful and prudent attention to the progress of a negotiation or a proceeding in court by which his rights may be affected." Inadvertence in the abstract is no plea upon which to set aside a default, but the court must be informed of the reasons for the inadvertence; if satisfactory, the court will relieve, but if the inadvertence is wholly inexcusable, as if it arises from gross negligence, the court will not look upon it kindly. (Shearman v. Jorgensen (1895) 106 Cal 483.)

Surprise must be asserted “without any default or negligence of [your] own, which ordinary prudence could not have guarded against." (Credit Managers Assn. of So. Cal. v. Nat’l Ind. Bus. Alliance (1984) 162 Cal.App.3d 1166, 1173.) This is one that could go either way because there is an argument that if you knew you had a claim against a government entity and you went to a search engine and keyed in “claim government [city/county]," you would quickly learn of the statute of limitations. (And if you keyed “claim government [city/county] statute limitations," odds are that the top result would give you your answer.) The issue, then, is whether it is “ordinary prudence" for a lay member of the public to attempt to ascertain the statute of limitations for his or her claim. That seems a bit excessive and there is no ruling on point presently to answer that question.

"Excusable neglect" is that neglect which might have been the act of a reasonably prudent person under the same circumstances. (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921-922. In my eyes this is a bit different than the definition of “surprise" because the question becomes whether a “reasonably prudent person" in your circumstances would file a government claim within six months. If you have sought counsel from an attorney within six months then presumably you would be charged with filing a timely claim; if, however, you only consult counsel after the six-month period has elapsed, and if you were reasonably prudent (or reasonably diligent) in presenting a claim once you were advised to do so, then it seems as though the government entity would have no choice but to accept your late claim.

Of utmost importance, regardless of whether you are one week removed from the incident or one year removed from the incident, is that you immediately file a government claim when you become aware that you potentially have a cause of action against a government entity. Any delay that may be attributed to you is going to be held against you. Conversely, if you are able to show that at all times you were diligent in pursuing your claim and were simply unaware that you had a claim and/or that there was a shortened statute of limitations for your claim, you have a much better chance of getting your late claim accepted.

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