How to file a Tort claim in California

• How do I file a claim?
• What must a claim contain?
• How should I proceed if I cannot get the information I need to sue the county jail [for example, the sheriff's name or the chief medical officer]?
• What is the deadline for filing a claim?
• When can I expect to hear from the county?
• What if I missed the deadline to file a claim?
• What can I do if the public entity rejected my application to file a late claim?
• What if I cannot pay the court fee?

How do I file a claim?

Contact the county clerk and/or clerk of the local governing body, usually known as the Board of Supervisors, to find out what the proper procedure is. In the back of this booklet, we have included a list of all the local government offices in California. Ask if there is a filing fee and how many copies of the claim must be filed with the original claim. Most counties do not charge for filing a claim. A sample letter is attached as Appendix A.

Some county and city governments provide a standard claim form. If you are unable to get a copy of the standard form, you can still file a claim, as long as it contains the information required under section 910 of the Government Code. [See below.] Some counties, such as San Luis Obispo and Del Norte, do not provide a standard claim form. In that case, you must draft a claim that meets the statutory requirements set forth below. See the sample claim, attached as Appendix B.

The claim must be signed and presented by either you or someone acting on your behalf. The claim is considered to have been presented and received at the time you either deposit it in the mail or personally deliver it to the clerk, secretary or auditor of the local governing body.

Ask for a conformed copy of the claim that shows that the local public entity or individual actually received the claim. You should include a stamped, self-addressed envelope and a copy of the claim form in addition to the original. You should also keep a copy of the claim for yourself. To sum up, count on making at least three copies of the claim in addition to the original.

What must a claim contain?

Government Code § 910 sets forth what information your claim must include.

1. Your name and address;
2. The address to which you want notices to be sent;
3. The date, place and other circumstances of the occurrence or event which caused your injury;
4. A general description of your injury;
5. The name of the public employee or employees who caused your injury, if known;
6. If you are claiming damages less than $10,000, state the amount as of the date you sent or delivered the claim, including the estimated amount of any prospective injury, damage, or loss. You must also explain how you computed the amount claimed.
7. If you are claiming damages over $10,000, your claim does not have to state an exact dollar amount. However, you must indicate whether the municipal or superior court would have power or jurisdiction over the claim. Your claim must indicate whether the claim would be a limited civil claim. A limited civil claim is one that is less than $25,000, and the municipal court would have jurisdiction. Jurisdiction over the claim is in superior court if you are requesting more than $25,000 in damages.

Include in your claim all the reasons why you think you are legally entitled to recover damages. If you decide later to file a lawsuit in court, you may not be allowed to introduce in your complaint new legal grounds for recovery. It is important to be as complete as possible in listing all possible legal grounds and reasons why you should be granted damages for your injury.

How should I proceed if I cannot get the information I need to sue the county jail [for example, the sheriff’s name or the chief medical officer]?

At the end of this booklet, there is a list of addresses for the county courts and legal services offices which you can write for assistance in collecting this kind of public information. You can also contact prisoner aid organizations like Friends Outside.

You can add information, that is, amend your claim, as long as the new material relates back to the same incident that caused your injury. You can amend the claim at any time before the six-month period ends, [see below,] or before the Board takes final action, whichever is later.

The Board may notify you that the claim lacks necessary information within 20 days after the claim was sent. However, it is not required by law to do so.

What is the deadline for filing a claim?

All personal injury claims must be filed within six [6] months from the date of the injury. It is very important that you meet this deadline. Even if you do not have all of the information you had hoped to collect before filing your claim, file the most complete claim that you can by the six-month deadline. The six-month deadline to file a claim is not waived because a person is incarcerated.

When can I expect to hear from the county?

The deadline for the public entity to act on your claim is 45 days from the date you mailed or delivered the claim, unless you and the Board agree in writing, before the 45th day, to extend the time.

The public entity can act on your claim by:

1. Completely rejecting it in one of two ways:
   1. By sending you a notice of rejection, which must include a warning containing the six-month time limit for filing a complaint against the public entity in court; or
   2. By refusing or failing to act within 45 days. The claim is then considered rejected as a matter of law.

   Be aware that many entities do not give the written notice of rejection, so it is important to keep track of when you mailed in your claim. If more than 45 days have passed since you filed your claim and you haven ¡t heard from the county, you should conclude that the claim has been rejected as a matter of law;

2. Totally accepting the claim; or
3. Partially accepting the claim. For example, the claim may be found proper but the Board of the local public entity could decide that it believes the amount of damages you are owed is less than what you requested. In that case, the Board can either allow part of the amount and reject the rest, or completely reject the claim.

What if I missed the deadline to file a claim?

If you missed the six-month deadline and no longer than one year has passed since you were injured, you can either file a late claim or ask the public entity for permission to file a late claim. If you file a late claim, the public entity may, within 45 days of the date the claim was either deposited in the mail or personally delivered, give written notice stating that the claim was accepted even though it was late, or it can reject the claim because it was not filed on time. If your claim is rejected, the notice should state that your only recourse is to apply without delay to the superior court in the county where you were injured for permission to present a late claim..

To present what is called an application to file a late claim, you follow the same procedure for writing and sending the claim. You also write a letter explaining why you were unable to meet the filing deadline and attach it to the claim. Keep in mind that courts generally do not accept your ignorance of the six-month time limit as a sufficient excuse. The county may accept a late claim if you were physically or mentally incapacitated during the entire six-month period. The deadline to file an application for a late claim is one year from the date of the injury.

What can I do if the public entity rejected my application to file a late claim?

You should file a document called a petition for relief from the claims procedure in the superior court of the county where the injury occurred. In the petition, state that your late claim application was denied, give the reasons for the late filing of the claim, and explain the facts supporting your claim. The petition must be filed within six months of the date that the request for permission to file a late claim was denied or deemed denied. See sample form attached as Appendix C.

What if I cannot pay the court fee?

If you are unable to pay the court fee which will be required for filing the petition for relief, you must file a form that is called an Application for Waiver of Court Fees and Costs, which tells the court you have no money and asks that it waive any fees you would be required to pay to file the complaint. [See copy of Application for Waiver of Court Fees and Costs attached as Appendix D.] You must also file an Order on Application for Waiver of Court Fees and Costs, which will be signed by the judge and will give you permission to file without a fee.

Obtaining a hearing date and notifying the other side of the hearing will not be easy to do from prison, but there are two mandatory steps in this process:

1. You must contact the superior court to set a date for a hearing on the petition. Copies of the petition and a written notice of the time and place for a hearing must be served on an authorized representative of the public entity. The public entity must receive the notice at least 15 calendar days before the hearing if your friend or relative delivered the notice in person. If the public entity is served by mail to or from an address in California, the notice must be at least 20 days before the hearing.
2. If the court grants your petition, your next step is to file a complaint in court within 30 days of the date the order granting the petition is filed or if a local rule requires a formal order, 30 days of when the formal order is signed and filed.

If the court denies your petition, you cannot re-file the same tort claim. However, you can appeal the court’s denial of the petition.