How Do I File a Government Tort Claim in California?

If you are doing research around a potential California civil suit against a government actor, you may have read that it is necessary to file a government tort claim against the relevant agency, and to receive a turndown of the claim, before you can assert a claim in court under California law. This tends to be an issue in civil rights cases because such cases usually involve government actors as defendants and because they could (and probably should, if possible) involve claims under state law for causes of action such as negligence or a violation of the Bane Act.

Paper Mountain: Figuring out how to file a Government Tort Claim in California — and which agency to file it against, and what to say in the claim — can be perplexing.

Not only that: the deadline for filing such a claim is tight: it needs to be submitted within 6 months of the underlying incident, in most cases, and many folks are still scrambling around looking for a lawyer when that deadline approaches. This “government tort claim” requirement is consequently an area where members of the public may need to engage in some self-help and just get the thing filed as best they can on their own, even if they haven’t lined up an attorney, so that these causes of action under state law are preserved. It is better that something get filed on time, even if it is rough, than that the deadline pass with no action.

But how the heck do you find the form to file a tort claim? The answer is tricky because every single agency has its own procedures for submitting a claim. Some agencies want claims submitted on actual paper forms, while others use online “portals” for submitting claims. It just depends.

So step one is to use your trusty friends Google and Claude.ai and some common sense about which agency or municipality you believe is responsible for whatever happened, in order to access the relevant form or portal. If your incident involves police officers, the relevant agency is probably the city that employs the police, whether it’s Los Angeles or San Jose, or whatever. (Note that a “city” is an incorporated entity that often includes many smaller neighborhoods. “Encino,” for example, is not a “city,” it’s merely a neighborhood in the city of Los Angeles.) If your incident involves sheriff’s deputies (which is usually the case if an incident happened in a county jail) the relevant agency is probably the county that employs the deputies, such as Alameda County or Stanislaus County. If you are concerned about actions of a CHP actor, the agency is the CHP. If it’s a teacher or a principal, you need to be contacting the school district. And if the incident involves correctional officers in a state prison, the agency is probably CDCR.

Your Google prompt should be “government tort claim [agency]” where [agency] is replaced by the name of the agency or municipality. That will usually, but not always, get you to a useful result. For example, if you Google “government tort claim City of San Diego” the first hit is the government tort claim for the City of San Diego. If you try the same thing for the County of San Diego, the relevant tort claim is the second hit on the Google results. Then you can get the form, or access the portal, and enter your data. But if you Google some smaller cities, you may draw a blank. Try “government tort claim El Centro” or “government tort claim Antioch,” for example, and (at least as of the time this post is being written) you will not find any way to file a tort claim against these cities. Instead, it will probably be necessary to physically go to the City Clerk and ask for a form, or perhaps even to create your own form that complies with the requirements of statute discussed in the next paragraph.

Many people feel somewhat uncomfortable about putting certain information down on these forms, such as their social security number. The only actual information that has to be provided on the claim, under the law, is what is in California Government Code section 910, which has no requirement of providing an SSN or a birth date, though some of these online portals may improperly make certain data fields mandatory. At any rate, make sure you are providing at least the information required by section 910.

Sometimes people are not sure which agency was involved in an incident, and frequently the actual names of of the defendants are unknown. That’s okay: just be overinclusive. If two different agencies might be involved, you need to file claims with each agency. If you don’t know the names of the persons involved, just describe what happened in as much detail as you can and, again, be overinclusive rather than the reverse. Cases can also involve overlapping actions of private and public actors (for example, both Sheriff’s deputies and nurses or psychologists employed by a private healthcare provider may fail to address an detainee’s mental health problems in a jail, or both public law enforcement and the actions of a private hotel company may contribute to the death of an occupant of a hotel room). It may be difficult to know how to correctly refer to the private actor, but in any event the claim merely needs to be presented to the public agency, even if the actions of private actors are included in the claim.

A tort claim does not need to spell out individual causes of action, it merely needs to describe the underlying incident with enough detail to put the agency on notice of what occurred. See Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority, 34 Cal.4th 441, 447 (2004). So while the person filing the claim may not know exactly what legal theories would be involved in an eventual lawsuit, that should not be a roadblock to filing the claim in the first place.

Some agencies, particularly the State of California, require payment of a small fee with the filing of the form.

Keep a clear, dated record of when you submitted the claim. If you submit the claim through the mail, do so via certified mail, return receipt requested. If you do it in person, bring an extra copy and get it file-stamped for your records. If you are submitting the claim via a portal, take screenshots of your submission and keep any confirmatory email that you are given.

Also, if you have missed the six-month deadline but are still within one year, the law provides a mechanism for seeking to file a late claim. That is a more complex process for which you should probably get assistance.

If you have questions related to tort claims, feel free to get in touch. I have limited capacity to take on cases, but I am always interested in helping folks preserve their legal rights, and do not charge anything for doing so.

Negligence Overview

In addition to (or as an alternative to) raising civil rights claims under federal law, plaintiffs in civil rights cases can sometimes assert related claims for negligence under California law. When the defendant is a government employee or government agency, there can be both advantages and complications to raising such claims.

Photo by Katelyn G on Unsplash‍ . ‍

The idea of negligence as alleged against an individual state actor has the same structure as in a claim against a private actor, requiring a showing of duty to the plaintiff, breach of that duty by the defendant, and causation of harm.

The initial existence of a duty may be a tricky factor in some situations where the nature of the state action is merely a failure to take some action because, as discussed elsewhere, state actors do not necessarily have a duty to ensure the safety of members of the public except in certain scenarios. But state actors do have a duty to use reasonable care in the way they perform their jobs. See, e.g., Munoz v. Olin, 24 Cal.3d 629, 634 (1979) (reasonable care required in the use of force). So when the state actor’s own actions are what causes a harm, there is the potential for a negligence cause of action. See Cal. Gov. Code, § 820 (“a public employee is liable for injury caused by his act or omission to the same extent as a private person“). In the context of excessive force claims, a state-law cause of action of negligence can be a useful component of a plaintiff’s case because the factors that are evaluated in determining negligence under California law are broader than the factors considered under the Fourth Amendment. Hayes v. Cnty. of San Diego, 57 Cal. 4th 622, 639 (2013).

Tricky questions can exist about whether a state actor’s acts were within the course and scope of their government employment.

As with any cause of action brought against a government defendant under California law, a claim for negligence must be presented to the relevant agency via a government tort claim and “exhausted” via the initial denial of that claim.

Assuming that occurs, it is then necessary to navigate statutory immunities. Government employees have discretionary immunity under California Government Code § 820.2. The idea of this immunity is that if an employee has discretion to perform a range of actions as part of his or her employment, then the selection of one of those options does not create liability, even if the employee is mistaken in their judgment. However, this immunity has been fairly narrowly construed, and obviously a public employee does not have “discretion” to, say, violate the federal Constitution, so this immunity may be of limited use to defendants in civil rights cases. See, e.g., Barner v. Leeds, 24 Cal.4th 676, 685 (2000). In a similar vein, Government Code § 820.4 creates an immunity for law enforcement officers who act while “exercising due care,” but the premise of a negligence claim is that such care was not exercised.

Vicarious liability for government employers based on the negligence of their employees will exist in some, but not all, situations under California Government Code § 815.2. Section 815.2 is an exception to the broad language of Government Code section 815, which states that “[e]xcept as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Section 815.2, in turn, says that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative” except “where the employee is immune from liability.”

Vicarious liability for employers does not exist when injuries to prisoners are based on employee negligence, with certain exceptions. Government Code § 844.6. See Lawson v. Superior Court, 180 Cal. App. 4th 1372, 1383 (2010). The exception that section 844.6 explicitly calls out is the failure to render emergency medical aid under section 845.6 if a situation where an inmate “is in need of immediate medical care and [the employee] fails to take reasonable action to summon such medical care.”

Negligent Hiring/Training/Supervision of employees can also give rise to liability for government employers in a manner that has parallels to a cause of action in federal law under Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978). But California "does not recognize a general duty of care on the part of supervisors with respect to negligent hiring, retention, or training." Estate of Osuna v. County of Stanislaus, 392 F. Supp. 3d 1162, 1182 (E.D. Cal. 2019). So this type of claim is limited to specific situations. School districts, the California Supreme Court has held, may be held liable for negligent hiring because of the “special relationship” between schools and their students. C.A. v. William S. Hart Union High School Dist., 53 Cal.4th 861, 865-866 (2012). But in the same case the California Supreme Court stated: “Absent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2.” 53 Cal.4th at 877.

This focus on the existence of a “special relationship” also suggests that jail and inmates may be able to assert such claims based on the special relationship that is understood to exist for individuals in custody, but there is also a considerable amount of bad law in this area, making these claims tricky. See Kendrick v. County of San Diego, No. 15-cv-2615-GPC (AGS), 2018 U.S. Dist. LEXIS 42185, 2018 WL 1316618, at *11 (S.D. Cal. Mar. 14, 2018) ("Plaintiff does not allege a special relationship existed between [the decedent] and Sheriff Gore. Therefore, Sheriff Gore cannot be personally liable for a claim of negligent hiring and supervision . . . ."); Fuentes v. City of San Diego, No. 3:16-cv-02871-BEN-JMA, 2017 U.S. Dist. LEXIS 96048, 2017 WL 2670976, at *3 (S.D. Cal. June 20, 2017) (dismissing claim because "Plaintiffs generally allege that the City and/or SDPD have a duty to protect people from harm and exercise care in selection, retention, training, and supervision of their employees. However, these alleged duties do not resemble the enhanced duties imposed on school personnel that formed the basis for their special relationship with the minor plaintiff in William S. Hart.").

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