Award Recipient
Top 100 Trial Attorneys in the United States
Contact Us for a Free Consultation
How Does One File a Government Claim Form if Late?
Sadly, it is quite common for our office to receive phone calls from people in jail or prison who want to file a state court claim for injuries against the State of California, but the prisoner failed to file a government claim on time. Generally, such a claim must be filed within six months of when the claim (the event causing an injury, for example) arose. Government Code § 901; Government Code § 911.2.
What can be done in such a situation? The answer is one can request permission to file a late government claim.
A plaintiff who does not meet the six-month deadline for filing a Government Claim form can ask for permission to file a late claim. The request must be presented as soon as possible, and no later than one year after the cause of action accrued. A plaintiff who wants to request permission to file a late claim should fill out the ordinary claim form (and if appropriate, a request for a fee waiver), and attach a letter explaining why the claim was not filed on time. Government Code § 911.4. The one-year limit does not include time during which the plaintiff is mentally incapacitated and does not have a guardian or conservator. Government Code § 911.4(c).
The Department of General Services must allow a late claim to be filed in certain circumstances. The circumstances that frequently apply to people in prison include the following:
- The failure to present the claim on time was due to mistake, inadvertence, surprise or excusable neglect and the state was not prejudiced by the failure to file a timely claim. Government Code § 911.6(b)(1); see Torbitt v. Fearn (1984) 161 Cal. App. 3d 860, 208 Cal. Rptr. 1. However, mere ignorance of the six-month deadline is not necessarily good cause for missing the deadline. See Harrison v. County of Del Norte (1985) 168 Cal. App. 3d 1, 213 Cal. Rptr. 658;
- The person who suffered the injury, damage, or loss was a minor during all of the six month deadline period. Government Code § 911.6(b)(2);
- The person who suffered the injury, damage or loss was unable to present a timely claim due to physical or mental incapacitation during all of the six-month deadline period. Government Code § 911.6(b)(3); or
- The person who suffered the injury or loss died before the six-month deadline period was over. Government Code § 911.6(b)(4); see, e.g., Draper v. City of Los Angeles (1990) 52 Cal. 3d 502, 276 Cal. Rptr. 864 (relief from timely filing requirement granted where plaintiff unconscious and brain-damaged throughout time frame).
The Department of General Services must act on a request to file a late claim within 45 days. Government Code § 911.6(a). If the Department of General Services does not act, the request is considered to be denied when 45 days have passed. Government Code § 911.6(c).
If the Department of General Services grants the request, it will file the claim and then either grant or deny the claim.
A plaintiff can challenge the Department of General Services’ denial of a request to file a late claim by filing a petition in the superior court of the county with jurisdiction over the state civil lawsuit ). Government Code § 946.6(a). The petition must state that a late claim application was made and denied, describe the reasons for the late filing, and set forth the facts of the underlying claim. The petition must be filed within six months after the denial of the request to file a late claim was denied. Government Code § 946.6(b). A late petition was excused by a court when an attorney’s secretary mistakenly erased the filing deadline from the attorney’s calendar. Renteria v. Juvenile Justice, Department of Corrections and Rehabilitation (2006) 135 Cal. App.4th 903, 37 Cal. Rptr. 3d 777.
The plaintiff must serve the Department of General Services with a copy of the petition and a written notice of the time and place for a court hearing on the petition. The petition may be served by regular mail, by express mail, in person or (in some courts) by fax or electronically. Code of Civil Procedure § 1005(b); Code of Civil Procedure §§ 1010-1013.
The petition and notice must be served on the Department of General Services at least 21 calendar days before the hearing date, or at least 26 days before the hearing date if the notice is served by mail. Government Code § 946.6(d); Code of Civil Procedure § 1005(b).
The Department of General Services can file a written response no less than 10 days before the hearing, and the plaintiff can file a written reply no less than five days before the hearing. Code of Civil Procedure § 1005(b).
A superior court considering a petition to file a late claim must resolve any doubts in favor of granting relief to the plaintiff. Bettencourt v. Los Rios Community College District (1986) 42 Cal. 3d 270, 228 Cal. Rptr. 190; Ebersol v. Cowan (1983) 35 Cal. 3d 427, 197 Cal. Rptr. 601; Greene v. California (1990) 222 Cal. App.3d 117, 272 Cal. Rptr. 52.
If the court grants the petition, the state civil lawsuit must be filed within 30 days after the order. Government Code § 946.6(f).
If the court denies the petition, the plaintiff can appeal the issue to the state court of appeal for the district and then request review by the California Supreme Court.
While this article appears on our website, it would be a mistake to credit Greg Hill & Associates with the content in this article. Credit is due instead to the Prison Law Office, in Folsom, California, and their great treatise, California Prison and Parole Law Handbook, from which most of the content in this article is based.
