Case No. C077513 IN THE COURT OF APPEAL OF THE STATE OF

Case No. C077513

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

Renee Estill, Plaintiff/Appellant

vs.

County of Shasta, et al., Defendants and Appellants

Appeal from an Order Granting Motion for New Trial

Superior Court of California, County of Shasta

Hon. Stephen Benson, Dept. 3 (Case No. 12 CVC017563); (530-

245-6789)

[PROPOSED] AMICI CURIAE BRIEF OF THE CALIFORNIA

STATE ASSOCIATION OF COUNTIES AND THE LEAGUE OF

CALIFORNIA CITIES IN SUPPORT OF APPELLANTS COUNTY OF

SHASTA, ET AL.

M. Christine Davi (State Bar No. 178389)

City of Monterey City Attorney

City of Monterey

Monterey, CA 93940

Telephone: (831) 646-3915

Facsimile: (831) 373-1634

Email: davi@monterey.org

Attorney for Amici California State Association

of Counties and League of California Cities

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

In accordance with California Rules of Court, Rule 8.208,

there are no interested entities or persons that must be listed under

Rule 8.208. The Association of Counties and the League of

California Cities are non-profit organizations with no parent

corporations and no stock.

Dated: February 12, 2016

M. Christine Davi

Attorney for Amici Curiae

California State Association of

Counties and League of

California Cities

TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED ENTITIES

OR PERSONS ........................................................................................2

TABLE OF AUTHORITIES .....................................................................4

INTRODUCTION ........................................................................... 7

STATEMENT OF FACTS .............................................................. 8

II.

LEGAL ARGUMENT .....................................................................8

History and Purpose of the Government Claims Act ................8

Purpose of Procedural Requirements of the Act….................11

Government Code Section 911.3 Does Not

Permit Public Entities to Engage in Discovery

in Order to Ascertain the Truth of Whether a Claim

that is Timely on its Face is in Fact Late ................................. 13

Because Discovery is Not Authorized During the Claim

Evaluation Period, Public Entities Should Not be

Required to Do More Than Evaluate the Face of

the Claim and Accept all Facts as True ..................................15

Sufficiency under Government Code

section 910 ...................................................................16

Timeliness under Government Code

section 911.3 ................................................................21

The Filing of a Timely Claim is a Jurisdictional

Prerequisite to Filing a Complaint Against a

Public Entity ..................................................................23

Estill’s Complaint is Time Barred and the Time to Apply

for Leave to Present a Late Claim has Long Passed .............27

III.

CONCLUSION ............................................................................28

CERTIFICATE OF COMPLIANCE ..............................................30

TABLE OF AUTHORITIES

Cases

Page

Becerra v. County of Santa Cruz (1998)

68 Cal.App.4th 1450 .........................................................................10

Brown v. Poway Unified School Dist. (1993)

4 Cal.4th 820 ...................................................................................11

County of Los Angeles v. Superior Court (2001)

91 Cal.App.4th 1303 ........................................................................27

County of Los Angeles v. Superior Court (N.L.) (2005)

127 Cal.App.4th 1263 ......................................................................27

Crow v. State of California (1990)

222 Cal.App.3d 192................................................................... 18, 19

Davis v. Cordova Recreation & Park Dist. (1972)

24 Cal.App.3d 789 ............................................................................9

Donohue v. State of California (1986)

178 Cal.App.3d 795................................................................... 19, 20

Elson v. Public Utilities Commission (1975)

51. Cal.App.3d 577 ...........................................................................10

Greyhound Corp. v. Superior Court (Clay) (1961)

56 Cal.2d 355 ...................................................................................13

Hernandez v. County of Los Angeles (1986)

42 Cal.3d 1020 .................................................................................27

Hilts v. County of Solano (1968)

265 Cal.App.2d 1616 ........................................................................11

Mary M. v. City of Los Angeles (1991)

54 Cal.3d 202 ...................................................................................10

Mandjik v. Eden Township Hospital District (1992)

4 Cal.App.4th 1488........................................................ 17, 21, 22, 23

Martinez v. County of Los Angeles (1987)

78 Cal.App.3d 242..................................................................... 17, 23

Phillips v. Desert Hospital District (1989)

49 Cal.3d 699 ...................................................................................18

Rason v. Santa Barbara City Housing Authority (1988)

201 Cal.App.3d 817 ..........................................................................21

Scott v. County of Los Angeles (1977)

73 Cal.App.3d 476 ............................................................................21

Shirk v. Vista Unified School District (2007)

42 Cal.4th 201 ............................................................... 11, 24, 25, 26

Smith v. County of Los Angeles (1989)

214 Cal.App.3d 266 ..........................................................................25

State of California v. Superior Court (Bodde) (2004)

32 Cal.4th 1234 ................................................................... 10, 24, 25

Taylor v. Mitzel (1978)

82 Cal.App.3d 665 ............................................................................24

Wright v. State of Calif. (2004)

122 Cal.App.4th 659 ......................................................................... 10

Williams v. Horvath (1976)

16 Cal.3d 834 ...................................................................................10

Wood v. Riverside General Hospital (1994)

25 Cal.App.4th 1113 .........................................................................24

Zelig v. County of Los Angeles (2002)

27 Cal.4th 1112 ................................................................................11

Statutes

Code of Civil Procedure section 2025.010 ..................................................13

Code of Civil Procedure section 2030.010 ..................................................13

Code of Civil Procedure section 2032.010 ..................................................13

Code of Civil Procedure section 2033.010 .................................................13

Code of Civil Procedure section 2034.010 .................................................13

Code of Civil Procedure section 2020.410 .................................................13

Government Code section 905 ...................................................................11

Government Code section 910.......................................... 16, 17, 18, 19, 22

Government Code section 910.08 ..............................................................16

Government Code section 911................................................ 15, 16, 17, 21

Government Code section 911.3........................................... 13, 15, 16, 21, 22

Government Code section 911.4 ................................................................ 27

PROPOSED AMICI CURIAE BRIEF

INTRODUCTION

This case is about protecting a government entity’s right to

challenge the sufficiency of a cause of action alleged against it.

Timely presentation of a claim is an essential element of a cause of

action against a public entity, and the plaintiff carries the burden of

proof. The trial court improperly construes the Government Claims

Act to require public entities to investigate the timeliness of a claim,

even though they do not have available to them the tools of civil

discovery to do so. Here, extensive discovery was required before

County could ascertain the true date that plaintiff’s cause of action

accrued. The law neither requires nor authorizes such extensive

discovery as a part of an investigation of an otherwise sufficient

claim. Therefore, public entities should not be precluded from

asserting an independent jurisdictional defense where a claimant

submits a time-barred claim that nevertheless appears timely on its

face due to the claimant’s inaccurate reporting as to the date of the

incident and/or its discovery.

A finding that County waived its timeliness defense not only

undercuts the purpose of the claims presentation requirement, it

expands County’s liability by precluding it from asserting the

jurisdictional defense that Estill’s complaint fails to state a cause of

action. Expansion of public entity liability in this fashion is contrary

to public policy which is to confine governmental liability. The

consequences of the trial court’s ruling to public entities are

significant. Amici Curiae therefore respectfully request this Court

reverse the order of the trial court, and issue a published decision

clarifying the obligations of public entities when reviewing

Government Claims.

STATEMENT OF FACTS

Amici adopt, by this reference, the factual statement of County

as set forth on pgs 3-15 of its brief.

LEGAL ARGUMENT

THE GOVERNMENT CLAIMS ACT AND ITS CLAIMS

PRESENTATION REQUIREMENTS ARE CRITICAL TO ALL

COUNTIES, CITIES, AND OTHER PUBLIC AGENCIES

History and Purpose of the Government Claims Act

A critical question before this Court is whether the claims

presentation requirements of the Government Claims Act

(Government Code section 900 et seq., hereinafter “the Act”) may be

construed to prevent public entities, unlike private party defendants,

from asserting in litigation that a plaintiff has failed to state a cause

of action against it. To answer this question, it is important to

understand how the Act developed and its intended purposes.

Historically, as is the case today, the government provided

necessary service to the people it governed, a unique and

vulnerable position that was found to warrant a higher level of

protection against legal claims than private entities. (Calif. Law Rev.

Comm., 4 Reports Recommendations and Studies 807 (1963).) This

is because of the unique nature of the government’s relationship

with the public, and the types of services it provides, including the

power to issue and revoke licenses, prosecute and incarcerate

violators of the law, administer prison systems, and build and

maintain thousands of miles of streets, sidewalks, and highways.

“…[D]espite limited manpower and budgets, there is much that

public entities are required to do. Unlike private enterprise, a public

entity often cannot weigh the advantage of engaging in an activity

against the cost and decide not to engage in it. Government cannot

'go out of the business' of governing.” (Davis v. Cordova Recreation

& Park Dist. (1972) 24 Cal.App.3d 789, 797 [discussing immunities

afforded public entities under the Act.)

Substantively, the Act abolished all common law based on the

doctrine of absolute sovereign immunity. (Becerra v. County of

Santa Cruz (1998) 68 Cal.App.4th 1450.) Instead, under the Act the

general rule is that there is no public entity liability unless specifically

provided by statute. (Elson v. Public Utilities Commission (1975) 51

Cal.App.3d 577.) Therefore, there exists sovereign immunity for

public entities in California, with government liability limited to

exceptions specifically set forth by statute. (Wright v. State of Calif.

(2004) 122 Cal.App.4th 659.)

The Act was “conceived to strictly limit governmental liability.”

(Williams v. Horvath (1976) 16 Cal.3d 834, 842.) This is reflected in

the plain language of the Act, which supports a restrictive view of

government liability, and in essence confines potential governmental

liability to rigidly delineated circumstances. (State of California v.

Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1243; Mary M. v.

City of Los Angeles (1991) 54 Cal.3d 202, 2229.) “[T]he intent of

the [Government Claims Act] is not to expand the rights of plaintiffs

in suits against governmental entities, but to confine potential

governmental liability to rigidly delineated circumstances: immunity is

waived only if the various requirements of the Act are satisfied.”

(Brown v. Poway Unified School District (1993) 4 Cal.4th 820, 829

[citation omitted]; Hilts v. County of Solano (1968) 265 Cal.App.2d

161, 170-171.) Statutory liabilities should be construed narrowly as

the intent of the Government Claims Act is to confine governmental

liability, not expand it. (Zelig v. County of Los Angeles (2002) 27

Cal.4th 1112, 1127.)

Purpose of Procedural Requirements of the Act

The claims presentment process in the Act is more than a

procedural requirement. It serves an important function in the

scheme of public entity liability, and it is part of the careful balancing

of competing policies undertaken by the Legislature when it adopted

the Act.

All claims for money or damages against public entities must

be presented to the entity before a lawsuit is filed. (Gov. Code, §

905.) The purpose of the claims presentation requirement is to

afford “…the entity an opportunity to promptly remedy the condition

giving rise to the injury, thus minimizing the risk of similar harm to

others.” (Shirk v. Vista Unified School District (2007) 42 Cal.4th 201,

213 [citations omitted].) It also “…permits the public entity to

investigate while tangible evidence is still available, memories are

fresh, and witnesses can be located.” (Id. [citations omitted].) “Fresh

notice of a claim permits early assessment by the public entity,

allows its governing board to settle meritorious disputes without

incurring the added cost of litigation, and gives it time to engage in

appropriate budgetary planning.” The importance of the timely

notice requirement is “…based on a recognition of the special status

of public entities, according them greater protections than nonpublic

entity defendants, because unlike nonpublic entity defendants,

public entities whose acts or omissions are alleged to have caused

harm will incur costs that must ultimately be borne by the taxpayers.”

(Id.)

The Act clearly limits public entity liability, and one of the ways

it does so is by requiring the filing of a timely claim. Allowing a

claimant to misstate an accrual date and then strip a public entity’s

jurisdictional defense if the public entity is unable to discover the true

date of the accrual of the cause of action within the 45 day window

to consider the claim, would thwart public policy. The policy

supporting a public entity’s jurisdictional defense, when it is later

discovered that a claim was not timely submitted, is critical to Amici

and other public agencies.

Government Code Section 911.3 Does Not Permit Public

Entities to Engage in Discovery in Order to Ascertain the

Truth of Whether a Claim that is Timely on its Face is in

Fact Late

The basic purpose of discovery is to enable parties to litigation

to obtain the evidence necessary to evaluate and resolve their

dispute before trial, and to avoid surprises at trial. (Greyhound Corp.

v. Superior Court (Clay) (1961) 56 Cal.2d 355, 376.) The Discovery

Act enumerates various tools by which information may be obtained,

tools that are not otherwise available to parties before litigation is

initiated, such as: depositions; interrogatories; inspection of

documents, things, and places; physical and mental examinations;

requests for admissions; expert witness designations; and business

records subpoenas. (See, e.g., Code of Civ. Proc., §§ 2025.010,

2030.010, 2032.010, 2033.010, 2034.010, and 2020.410.) None of

these tools are authorized for use by Amici or other public entities

during the 45 day claims consideration period. Frequently formal

discovery is required in order for public entities to ascertain liability

and estimate potential damages.

For example, consider an ordinary trip and fall on a sidewalk

case. Assume that claimant states a timely date of incident on her

claim form. There are no witnesses, incident reports, or police

reports to corroborate claimant’s description of the incident. There is

a liquor store nearby where her fall occurred, and that store has

video surveillance footage that may have captured the incident. The

liquor store refuses to provide its recordings to the public entity. The

claim is denied and litigation ensues.

Then, during discovery, the public entity subpoenas the video

recordings from the liquor store. The recordings establish that the

incident did not take place on the date alleged by claimant. In fact, it

was so stale that it would have made her claim time-barred. Under

the trial court’s ruling in this case, a stale claim nonetheless leaves

the public entity without a timeliness affirmative defense in the

litigation because the claim was timely on its face. The plaintiff

would be excused from having to establish an element of a cause of

action against the public entity, i.e., the timely presentation of a

claim, even though she carries the burden of proof.

Applying the trial court’s ruling to this hypothetical shows how

this ruling strips a public entity of its affirmative defense. Because

the public entity did not discover the true date of the incident during

the 45 day claim review period, and it did not return her claim as it

was timely on its face, it has unknowingly waived its defense. Thus,

what should public entities do to avoid this untenable result? The

only method to preserve this critical defense is to return every claim

as untimely. This thwarts the purpose of the Act, and

administratively burdens public entities and claimants alike.

Because Discovery is Not Authorized During the Claim

Evaluation Period, Public Entities Must Accept as True All

Facts on the Face of the Claim

The same legal standard that applies to a public entity’s

review of the sufficiency of a claim under Government Code section

911 should apply to a public entity’s review of a claim’s timeliness

under Government Code section 911.3. The provisions of the Act

do not operate to strip a public entity of affirmative defenses, or to

eliminate a plaintiff’s burden of proof, in a subsequent lawsuit when

the defenses were not apparent from the face of the claim. Both

Government Code section 911 and Section 911.3 contain a waiver

provision if the public entity fails to serve a notice of a defect in the

contents or form of a claim, or of the untimeliness of the claim,

respectively.

The rationale and rule formulated in cases interpreting

whether a public entity has waived a defense by failing to provide

the required notice under Government Code section 911 should

apply equally to claims that are facially timely, and therefore not

returned under Government Code section 911.3. Public entities

should able to accept as true all facts on the face of the claim. This

approach supports the position of Amici that if a claim on its face is

timely and contains the required contents, a public entity has not

waived all jurisdictional statute of limitations defenses by rejecting

the claim on the merits.

Sufficiency under Government Code section 910

Government Code section 910 sets forth the essential

contents of a claim. If the essential contents are not included, the

claim is insufficient. (Govt. Code, §910.08.) Information to be

included in a claim in order to be sufficient are: (1) the names and

addresses of claimant and the person to be sent notices; (2) a

statement of the date, place, and other circumstances of the

occurrence or transaction; (3) a description of the indebtedness,

obligation, injury, damage or loss incurred; (4) the name of the public

employee who caused the injury, if known; and (5) the amount

claimed if less than $10,000, or if more than $10,0000 no dollar

amount is to be included but the claim must state whether the claim

is to be a limited civil case. (Govt. Code, §910.)

If one or more of the foregoing five elements are not included

in the claim, it is insufficient, and the public entity must provide a

notice of such insufficiency and return the claim, or else it waives

any defense based upon a defect or omission within the claim.

(Govt. Code, §911; Martinez v. County of Los Angeles

(1978) 78

Cal.App.3d 242, 245.) Such notice must be provided within 20 days

after a claim has been presented. (Govt. Code, §910.8.) The

purpose of providing the notice and the possibility of waiver

encourages public entities to investigate claims promptly, to the

extent they can, and to make and notify claimants of their

determinations, thus enabling the claimants to perfect their claims.

(Mandjik v. Eden Township Hospital District (1992) 4 Cal.App.4th

1488, 1503.) In this way, the Government Code balances the

equities between the public entity’s need for complete, informative

claims, and the claimant’s right to pursue valid claims.

The test as to whether a claim has substantially complied with

Government Code section 910 is whether sufficient information is

alleged to “enable a public entity to investigate and evaluate the

claim to determine whether settlement is appropriate.” (Phillips v.

Desert Hospital District (1989) 49 Cal.3d 699, 706.) Sufficiency of

the claim is judged in light of that purpose.

For example, the plaintiff in Crow v. State of California (1990)

222 Cal.App.3d 192, unsuccessfully raised a waiver argument. In

the Crow case, the plaintiff included in his complaint a cause of

action for breach of contract that was not reflected in his government

claim. Crow argued that because the state did not return his claim

as insufficient, the state had waived its defense as to the new breach

of contract cause of action. The court rejected plaintiff’s

argument and determined that the notice of insufficiency and waiver

“….statutes have no applicability to these circumstances. The state

does not assert the claim has some inherent flaw; rather, it simply

does not support the complaint…” (Id. at p. 202.) The court held that

the state “…acted in timely fashion to assert this defense, with no

waiver taking place.” (Id. at 203).

Indeed, like the plaintiff in Crow, Estill’s claim was not facially

flawed. County did not assert that the claim was insufficient

because it facially complied with Government Code section 910.

Estill’s claim did not omit the date of the incident, nor did it state an

untimely date. Here, as there was in Crow, there is disharmony

between the facts alleged to meet the Government Code section

910 claim content requirements, and the actual facts necessary to

prove a cause of action against a public entity. Claimants cannot

play hide the ball and then use Government Code section 910 to

their benefit. The same holds true for facially timely claims.

The case of Donohue v. State of California (1986) 178

Cal.App.3d 795, is also instructive. Donohue holds that a lack of

notice of defects and omissions does not result in a waiver when the

flaw was not apparent on the claim and could not be discovered until

the complaint was filed. In Donohue, plaintiff’s car was struck by a

car driven by a minor who was taking the driving portion of his

California driver’s license examination. (Id. at p. 798.) Plaintiff’s

claim alleged that defendants had negligently performed their duties

so as to permit an uninsured motorist to take a driver’s test and drive

on a public street then causing a collision with plaintiff’s vehicle. (Id.

at p. 799.) The civil complaint, however, alleged in addition that the

Department of Motor Vehicles negligently instructed, directed, and

controlled the examinee in his driving test, failed to keep a proper

lookout for oncoming traffic, and failed to warn the examinee of such

traffic. (Id.) The State of California demurred on the ground that the

plaintiff failed to state a cause of action because the defendant’s

liability as pled in the complaint was premised on facts not set forth

in the plaintiff’s claim. (Id. at p. 802.) In other words, the description

of the negligence set forth in the government claim differed

materially from the allegations contained in the civil complaint.

The court correctly noted that the filing of a proper claim is a

condition precedent to the maintenance of an action against the

state for damages caused by tort. “If a plaintiff relies on more than

one theory of recovery against the State, each cause of action must

have been reflected in a timely claim. In addition, the factual

circumstances set forth in the written claim must correspond with the

facts alleged in the complaint; even if the claim were timely, the

complaint is vulnerable to a demurrer if it alleges a factual basis for

recovery which is not fairly reflected in the written claim.” (Donohue,

supra, at p. 802 [citations omitted].)

The primary function of the claims act is to appraise the

governmental body of imminent legal action so that it

may investigate and evaluate the claim and where

appropriate, avoid litigation by settling meritorious

claims. [Citations]

[…]

Plaintiff notes that the State Board of Control could have

given him written notice of any insufficiency in his claim

and argues that the board’s failure to do so resulted in

the waiver of any defense as to the sufficiency of the

claim. [Citations] This contention lacks merit. The

insufficiency of plaintiff claim lies in its failure to set forth

the factual basis for recovery alleged in the complaint;

defendant could not have discovered such defect until

plaintiff filed his complaint. Defendant raised the

defense of insufficiency of the claim at the earliest

opportunity by demurring to the complaint on that

ground. (Id. at p. 804-805.)

Here, too, County moved for summary judgment after discovery

revealed the true date that Estill learned of the accrual of her cause

of action. The rationale in cases interpreting the wavier provision of

Government Code section 911 should apply equally to the instant

case and in interpreting the wavier provision of Government Code

section 911.3.

Timeliness under Government Code section 911.3

As a matter of law, a public entity is required to accept the

claimant’s asserted date of accrual in the absence of clear and

specific evidence that the date was incorrect. (Mandjik, supra, at p.

1500; Rason v. Santa Barbara City Housing Authority (1988) 201

Cal.App.3d 817, 829; Scott v. County of Los Angeles (1977) 73

Cal.App.3d 476.) Thus, a claim which on its face is timely, and

contains sufficient information for a public entity to investigate and

evaluate the claim, meets the minimum criteria required by

Government Code section 910. Under such circumstances, the

public entity’s right or duty to return the claim under Government

Code section 911.3 is not triggered, and, therefore, a waiver defense

is not available to claimants such as Estill.

In Mandjik, supra, the court determined that “[s]ince plaintiffs’

Claim was timely on its face under a six-month presentation period

and since defendant failed to give specific written notice of rejection

under section 913, plaintiffs had two years from the accrual of their

cause of action to file their complaint.” (Id. at p. 1504 [citations

omitted].) The court in Mandjik noted:

A public entity cannot assume that a claim is not timely

presented just by the fact that a claim and an

application for leave to file a late claim are presented at

the same time. [citation omitted]. Nor is a public entity

permitted to make factual determinations relating to the

timeliness of a claim; to permit the public entity to do so

would be to deny the claimant his right to a jury trial on

a disputed factual issues. Rather, where a claim

submitted along with an application for leave to present

a late claim alleges facts which, if true, would make the

claim timely, the public entity must give specific written

notice of rejection under section 913. If the public entity

fails to do so, the claimant has two years from the

accrual of his cause of action to file his complaint. (Id.

[citations omitted].)

Applying the holding in Mandjik to the instant case, County

properly rejected the claim, which appeared to be timely on its face.

A public entity should be able to rely on a claimant’s sworn

statement on the face of a claim as to the date a cause of action

accrued, without losing the ability to later challenge the sufficiency of

a cause of action if it turns out the timeliness element has not been

met. (See also Martinez v County of Los Angeles (1978) 78

Cal.App.3d 242, 246 [assuming without deciding, that the public

entity is entitled to know from the face of the claim that it is timely].)

Otherwise, the only safe course of action would be for a public entity

to return every claim based on timeliness – a result that would lead

to increased inefficiency and cost for public agencies, and ultimately,

the tax-paying public.

The Filing of a Timely Claim is a Jurisdictional

Prerequisite to Filing a Complaint Against a Public

Entity

Government Code section 945.4 states the general rule that

“no suit for money or damages may be brought against a public

entity on a cause of action for which a claim is required to be

presented…until a written claim therefor has been presented to the

public entity” and has been rejected in whole or in part. Presentation

of a claim is a mandatory prerequisite to maintaining a cause of

action against a public entity, and failure to file a claim is fatal to the

claimant’s cause of action. (State v. Superior Court (Bodde) (2004)

32 Cal.4th 1234, 1239.)

Timely claim presentation is not merely a procedural

requirement, but is, … ‘a condition precedent to plaintiff’s

maintaining an action against a defendant’.” (Shirk, supra, at p. 209,

quoting State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234,

12340.) A timely claim is an essential element of a cause of action.

(Wood v. Riverside General Hospital (1994) 25 Cal. App.4th 1113,

1119.) Failing to allege facts demonstrating or excusing compliance

with the Government Claims Act subjects a complaint to a general

demurrer. (State v. Superior Court (Bodde) supra, at p. 1239.)

Compliance with the Government Claims Act is an integral part of

plaintiff’s cause of action, and a defendant may assert plaintiff’s

failure to comply at any stage of the proceeding. (Taylor v. Mitzel

(1978) 82 Cal.App.3d 665.)

Under Government Code section 945.5, failure to present a

timely claim bars suit against the public entity, and subjects it to

general demurrer under Code of Civil Procedure section 430.10(e)

for failure to state a cause of action. (State v. Superior Court

(Bodde), supra, at p. 1239.)

The burden of proof is on the plaintiff to demonstrate either

satisfaction of the statutory claim presentation prerequisites or

sufficient facts to justify noncompliance based on excuse, waiver, or

estoppel. (State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234,

1239.) A public entity defendant may assert the plaintiff’s failure to

prove compliance or excuse at any stage of the proceeding, even for

the first time on appeal. (Smith v. County of Los Angeles (1989) 214.

Cal.App.3d 266, 280.) Indeed, the trial court’s ruling eliminated

Estill’s burden of proving this element, thereby expanding public

entity liability.

Shirk v. Vista Unified School District, supra, is useful in

analyzing the issue presented to this Court. Shirk presented a

government claim on September 12, 2003, alleging sexual abuse by

a former teacher. (Id. at p. 205.) Shirk sued the school district on

September 23, 2003, and on the complaint she entered the date of

the incident as September 12, 2003. (Id.) In other words, Shirk’s

complaint against the school district alleged timely compliance with

the Government Claims Act. In fact, the alleged sexual abuse

occurred in the late 1970s. (Id.)

The six-month statute of limitations, which is triggered

following the satisfaction of the claims presentation requirements, for

filing a lawsuit against public entity defendants was not implicated by

the facts in Shirk. (Id. at p. 209.) Rather, in that case as in the

instant one, it was the claim presentation deadline that was at issue.

(Id.) The superior court had sustained the school district’s demurrer

without leave to amend and entered a judgment of dismissal on the

ground that plaintiff failed to timely comply with the requirements of

the Government Claims Act. The California Supreme Court agreed,

finding that the plaintiff’s causes of action against the school district

were barred by the expiration of the time for presenting a claim to the

school district. (Id.

at p. 213.) In the litigation, the school district

was permitted to attack the lateness of the claim even though the

date of the alleged incident as claimed by the plaintiff was timely on

its face.

Applying the trial court’s rationale in the instant case to the

facts in Shirk is illuminating in that it would dictate a result opposite

to that reached by the Supreme Court. In the Shirk matter, such

reasoning would mean that the plaintiff could withstand a summary

judgment motion and pursue a claim against the school district 25

years late by writing an incorrect, but facially timely, date of accrual

of the cause of action on the complaint as long as that date is

consistent with the government claim.

Estill’s Complaint is Time Barred and the Time to Apply for

Leave to Present a Late Claim has Long Passed

“A person who fails to file a timely claim may apply to the

public entity for leave to present a late claim within a reasonable

time not to exceed one year after accrual of the cause of action.

(Government Code section 911.4.) “No relief can be granted if the

application to file a late claim was filed more than one year after

accrual of the cause of action. ‘The reason for the one-year

statutory requirement is to ‘protect [ ] a governmental entity from

having to respond to a claim many years after the accrual of the

action.’” (County of Los Angeles v. Superior Court (N.L.) (2005) 127

Cal.App.4th 1263, 1272, citing County of Los Angeles v. Superior

Court (2001) 91 Cal.App.4th 1303, 1314, quoting Hernandez v.

County of Los Angeles (1986) 42 Cal.3d 1020, 1030.) Estill has no

recourse against County, as the time for her to apply for leave to file

a late claim has long since expired. In fact, as detailed in County’s

brief, it expired prior to the time she presented her claim.

III.

CONCLUSION

Suing a public entity in California comes with strict timelines

because public policy supports reasonable limitations on public entity

liability. Timeliness is a necessary element for any cause of

action to make it past the Government claim state, to the civil

complaint state. Estill’s claim was not timely, and her false statement

to the contrary cannot satisfy that required element. Her claim

was not only time-barred under the Government Claims Act,

but also by the applicable civil statute of limitation. Public entities

must be able to rely on a claimant’s sworn statement as to the date a

cause of action accrues. Otherwise, contrary to the public policy

behind the Government Claims Act, the statute of limitation for

bringing an action against public entities will be enlarged to the

benefit of claimants that write incorrect information on their claims.

Public entities will be forced to return facially timely claims as late in

order to preserve their defense of timeliness. The trial court’s

interpretation of the law would require a strained and unworkable

result. Therefore, Amici respectfully requests that this Court reverse

the order of the trial court, and issue a published decision clarifying

the obligations of public entities when reviewing Government Claims.

Dated: February , 2016

M. Christine Davi

Attorney for Amici California

State Association of Counties

and League of California Cities

CERTIFICATION OF COMPLIANCE WITH CALIFORNIA RULES

OF COURT, RULE 8.204(c)(1)

I hereby certify that this brief has been prepared using

proportionately double-spaced 13 point Arial typeface. According to

the word count feature in my Microsoft Word software, this brief

contains 4,627 words.

I declare under penalty of perjury under the laws of the State

of California that the foregoing is true and correct.

Dated: February , 2016

M. Christine Davi