Like private employees, public employees in California are protected by both federal and state employment laws. Though protected by the same laws, the route to enforcing an employee’s rights under said laws are vastly different for private and public employees. Private employees can generally initiate a lawsuit with very few administrative hurdles, depending on their claim.

But those suing the state or federal governments must comply with their respective Tort Claims Acts before they can successfully pursue a lawsuit against a public entity. These hurdles exist because of sovereign immunity, which basically means that citizens are not allowed to bring a lawsuit against the government unless the government gives its express permission.

The tort claim process can further judicial efficiency and dispute resolution by allowing the public entity to promptly investigate while evidence is fresh and witnesses are available, by possibly avoiding the need to involve the already overburdened courts, and by informing public entities of possible liabilities so they can better plan for the next fiscal year. There are very few claims exempt for the requirement of filing a giver net tort claims such as claims arising under the Fair Housing and Employment Act in California or § 1983 claims federally.

In California, the process for how to do so is codified in the Tort Claims Act, set forth in Cal. Gov. Code, § 810 et seq., which establishes the basic principles of public agency liability for damage claims, whether those claims originate in tort or contract.

Oftentimes, government agencies or divisions will have pre-made forms that claimants can fill out and file in order to satisfy the tort claim obligation. Other times, the claimant must write a letter, the form of the claim does not matter under the law. What is required in California is that the claim include the following information:

1. The name and post office address of the claimant.
2. The post office address to which the person presenting the claim desires notices to be sent.
3. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
4. 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.
5. The name or names of the public employee or employees causing the injury, damage, or loss, if known.
6. 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.

Cal. Gov. § Code 910.

If the claim does not provide the required information, the entity should give notice of the insufficiency, stating which details are missing. Cal. Gov. Code § 910.8.  The agency must provide written notice of the missing details within 20 days after the claim is presented. The entity may not take action on a claim for 15 days after sending a notice of insufficiency. Cal. Gov. Code §910.8.  A claim may be amended at any time before the claim period expires or the entity takes final action on the claim. Cal. Gov. Code §910.6(a).

It is best to file these claims as soon as possible, via personal delivery or certified mail, as there is a very strict statute of limitations that is not tolled, even for normal tolling reasons for minors, incompetents, and prisoners. Cal. Civ. Proc. Code 352(b), 352.1(b).

Claims for personal injuries, wrongful death, and damage to personal property must be presented within six months of the accrual of the action. Cal. Gov. Code § 911.2. All other claims, including breach of contract or damage to real property, must be presented within one year of the accrual of the action. Cal. Gove. Code § 911.2. The claim is considered presented when it is placed in the U. S. mail.

If the entity fails to take action on a claim within the period allowed by statute, 45 days, or as extended by agreement, the claim is deemed automatically rejected by law on the 45th day or last day of the extended period.  If no action is taken, or no notice of an action is sent to the claimant, then the time allotted to file a lawsuit is extended two-years from when the causes of action accrued. If notice of rejection of the claim is otherwise timely sent, the claimant has six months to file suit. The public agency may also accept parts or all of the claim and offer to engage in dispute resolution with the claimant.

If a claimant has failed to file a claim within the applicable period of time, all is not lost. The claimant may apply to the public entity for the ability to submit a late claim. If the claim is not presented in a timely manner or has been rejected as untimely, the claimant must present an application to the agency for leave to present a late claim before commencing a lawsuit. Cal.Gov. Code 945.4 and 946.6.  The application must be presented within a reasonable time period not to exceed one-year, and the agency has 45 days to respond to the application. Additionally, the public entity must present the claimant with a notice of untimeliness within the 45-day window prescribed by law, otherwise they risk waiving their defense that the claim was untimely filed.

The federal government has its own version of this requirement, set forth in 28 U.S.C. §§ 1346(b), 2671-2680 (2010). The Federal Tort Claims Act is a highly complex law that allows for monetary damages to be awarded in specific types of lawsuits against a federal government entity and federal employees who have acted within the scope of employment while causing injuries wrongfully or negligently. Additionally, the law of the state where the wrongful or negligent act occurred must recognize causes of action for such a claim.

The Federal Tort Claims Act allows monetary compensation to be awarded when injuries are specifically caused by wrongful or negligent actions of government employees. The law of the state where the act or omission occurred must permit the claim. There are a number of exceptions, such as for independent contractors, who cannot be sued under Federal Tort Claims Act unless they are actually treated like employees by the government. Negligent conduct that falls outside the scope of employment are not covered.

The federal government provides a “check-the-box” form for claimants to use, but claimants may also choose to submit their own claim in the form of a letter, etc. The claim, including detailed facts and damages, should be filed as soon as possible as the statute of limitations is two years. Because some states have a narrower statute of limitations for personal injuries and multiple entities, it may be important to file within a much shorter window. This is especially true given that, unlike California, federal tort claims are not considered presented until the agency receives the written complaint. What’s more, federal courts are increasingly finding that there are few to no tolling exceptions for this time frame, thereby excluding untimely filed claims.

After a claim is filed, the agency has six months to respond. They may choose to settle some or all of the claims, or they may reject the claims. After rejection, a claimant has six months to file their lawsuit. When filing the suit, it is important for the claimant to remember to add that they have exhausted their administrative remedies under the applicable Tort Claims Act.