Suing the Government

In my experience, most people tend to have a good intuition about how to sue a private person, such as someone who has damaged or broken your property. That intuition also applies — with minor differences — to suing a corporation, limited liability company, or other entity. When it comes to suing the government, though, the rules change significantly and most people’s intuition tends to let them down.

I don’t know where the rumor started, but you can indeed sue the city, county, state, and federal government. This post, though, is not going to cover suing the federal government, but instead I’m going to go over how to sue the city, county, and state in California under something called the California Tort Claims Act.

Two things I want to mention first:

  • First, you might think that you would never sue the government itself (e.g. State of California, City of San Diego, etc), but remember that the government — like any entity — acts through individuals. Thus, if you’ve been injured or damaged as a result of the actions of a city, county, or state employee (e.g. city police officer, public school teacher, etc), it’s the city, county, or state that may be ultimately responsible.
  • Second, if you ever do find yourself in a position where you might have to sue the government, please do find a lawyer to help you. As I’ll describe generally below, the rules for suing the government are very specialized and strict. In general, it is not something you can wing or simply figure out. Spend the money and effort to find a lawyer who knows these rules to help you.

One thing that can often vary when suing the government as opposed to a private individual or entity is the Statute of Limitations that applies. In many instances, the statute of limitations can be dramatically shorter simply because the defendant in question worked for the government. If you miss your Statute of Limitations, you can’t sue.

Claim Forms
The most common item I have seen people be surprised by when suing the government is the requirement to submit a claims form. In essence, when you sue the government in California, you generally have to submit a written document called a claim form to the government agency in question first. The claim form describes who you are, how you came to be injured or damaged, what amount of money you’re seeking, and why you believe that agency is the one responsible.

The bad news is that there is no universal claims form. Each branch or division of the government (e.g. police department, public school district, etc) will have its own claim form. The good news is that many of these claims forms are readily available either online or by going to the branch or division in question (e.g. police station). For example, if you allege that Caltrans injured or damaged you in some way, there is a website for that. Here are the forms for filing a claim for damages and injury against the City of San Francisco as well as the City of Los Angeles and County of Los Angeles.

This is obviously not an exhaustive list. You’ll most likely be able to find the right form via a google search or two.

Timing of Claim Forms
Most people have no idea that they have to file a claim form when suing the government. If this is your situation, you unfortunately not only have to file a claim form before actually suing the government in court, you have to file the claim form within a specified time. Under California Government Code section 911.2, the time limit is 6 months for claims for personal injury, death, or damage to personal property. However, because the law is funny this way, there is no single time period that applies to all situations. Check the law for your personal situation or, as I mentioned earlier, find a lawyer familiar with the rules about government claim forms.

This 6-month clock starts when the cause of action accrues, which is generally when the final element needed for the lawsuit is established. My rule of thumb for this is that this is when the person/claimant knows of the injury and knows that the government (e.g. the city) caused it. As a general rule, the 6-month clock does **not** start when the person/plaintiff discovers that a claim form is required.

If you don’t file a claim form at all, it is very possible that you may be prevented from suing the government even though you were definitely injured and even though the government was completely at fault.

Once A Claim Form is Filed
Assuming you file a claim form within the specified time period, the next step is that the government agency in question (e.g. police department) has 45 days under California Government Code section 911.3(a) within which to approve or reject your claim. If you don’t receive an approval or a rejection within those 45 days, your claim is automatically deemed rejected under California Government Code section 912.4(c).

If your claim is approved, then you win and get whatever money you were seeking.

If your claim is rejected, though, you then have 6 months under section 945.6(a)(1) of the California Government Code within which to file an actual lawsuit in court. When you do, you’ll need to prove/show that you did indeed file a claim form.

 

 

 

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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