Government Liability Update

Plaintiff's Correspondence with Department of Fair Employment and Housing Did Not Substantially Comply with the Claim Presentation Requirements

In Campbell v. Los Angeles Unified School Dist., ordered published May 21, 2024, the Second District Court of Appeal, Division 8 affirmed the dismissal of an employment lawsuit on demurrer.  In 2021, the plaintiff sued her former employer over events leading to her 2017 dismissal.  She alleged that the school district employer racially discriminated against her, and retaliated against her for whistleblowing in violation of Labor Code sections 1102.5 and 1106 and FEHA.  After sustaining a demurrer with leave to amend, the trial court sustained a demurrer to the amended complaint on the grounds that it was barred by the plaintiff's failure to present a claim for damages before suing, and by the statute of limitations for FEHA causes of action.

The appellate court agreed.  A plaintiff suing a public entity for damages must timely present a written claim to the entity before filing suit.  Because the plaintiff sought punitive damages, she had to comply with the claim presentation requirement.  She argued that she had previously submitted various racial discrimination and whistleblower complaints.  But that is not enough.  The record contained only the plaintiff's pre-complaint inquiry to the California Department of Fair Employment and Housing in 2017, and related correspondence.  She did not show that any of her complaints went to the right people, or contained the information required by statute.  Her amended complaint did not plead compliance with the claim presentation requirement.  The FEHA cause of action is barred by the statute of limitations under Government Code section 12965, subdivision (c)(1)(C).  After the plaintiff contacted the Department, the Department closed the case and provided her a Right to Sue notice in 2018.  She had one year from the letter's issuance to file a civil action.  She did not file suit until 2021.  She failed to establish delayed discovery accrual. Her 2017 pre-complain inquiry named the administrators who committed transgressions against her and described the supposed racial animus and hostile workplace.  She had enough information to file suit.

Shorter and More Specific Statute of Limitations Governs over Government Claims Act Statute of Limitations

In Shah v. Department of Resources, published June 15, 2023, the 3rd District Court of Appeal affirmed a trial court decision sustained a demurrer without leave to amend and dismissing the action as barred by the statute of limitations.  California's Employee Suggestion Program awarded employees cash awards for suggestions that saved the state money.  The plaintiff, an employee of the Department of Transportation, allegedly made cost-saving suggestions that saved the state millions of dollars.  The state recommended cash awards for each suggestion, but then reevaluated and denied them.  The plaintiff appealed to the State Merit Award Board, which operates under the umbrella of the California Department of Human Resources (CalHR).  On October 24, 2018, the Board issued its final decision denying the appeal and upholding denial of the awards.  On April 19, 2019, the plaintiff presented a claim for damages to the state.  It was not acted upon.  On November 13, 2019, the plaintiff sued the Department of Transportation and the Board, alleging breach of contract, unjust enrichment, and misappropriation of trade secrets.  CalHR demurred to the complaint, arguing that the action was barred under the one-year statute of limitations for actions against CalHR under Government Code section 19815.8.  The trial court rejected the plaintiff's argument that the applicable statute of limitations was the two-year period under Government Code section 945.6, subdivision (a)(2) that applies where a claim for damages is presented to a public entity and not acted upon.

The appellate court agreed.  It is settled that a specific statute of limitations takes precedence over a more general statute of limitations.  Government Code section 945.6 is the more general statute of limitations; it applies generally to claims against public entities, while section 19815.8 applies only against claims related to a law administered by CalHR.  Further, a shorter limitations period takes precedence over a longer one unless the statutes can be harmonized.  Because the two limitation periods cannot be harmonized, section 19815.8, the shorter limitation, takes precedence.  While the time for presenting a claim under Government Code section 911.2 is shorter than section 19815.8, that claim presentation period is not a statute of limitations.  No authority prioritizes the limitations periods in the Government Claims Act over other limitations period.  Such a determination would render section 19815.8 meaningless, since any claim related to a law administered by CalHR would arguably also be governed by the Government Claims Act.

Plaintiff's Statute of Limitations for Filing State Court Lawsuit against Public Entity Was Not Tolled by FRCP 60(b)(6) Motion

In Feliz v. County of Orange, published May 19, 2023, the Fourth District Court of Appeal, Division 3 affirmed the dismissal, after demurrer, of the plaintiff's lawsuit.  In August 2010, the plaintiff's decedent committed suicide in a county jail.  The plaintiff presented a timely claim to the county, which was denied by operation of law.  In November 2010, the plaintiff sued the county in federal district court, alleging federal claims and a state law wrongful death claim.  The district court granted summary judgment on the federal claim, and declined to exercise supplemental jurisdiction over the state law claim, dismissing it.  The plaintiff appealed, and the 9th Circuit reversed and remanded the ruling.  On remand, the district court again granted summary judgment on the federal claim, and dismissed the state law claim without prejudice, declining to exercise supplemental jurisdiction.  The plaintiff appealed the summary judgment, but did not independently challenge the court's decision to decline supplemental jurisdiction.  The 9th Circuit affirmed the judgment, and issued its mandate in January 2017.  The plaintiff then moved to vacate the judgment under Federal Rules of Civil Procedure rule 60(b)(6), seeking to resurrect the federal claim and asking the court to exercise supplemental jurisdiction over the state law claim.  The district court denied the motion.  The plaintiff appealed the motion's denial. The 9th Circuit affirmed.  It issued its mandate in December 2018.  Later the same month, the plaintiff filed suit in state court for wrongful death, violation of the Bane Act, and unsafe condition of public property.  She contended her lawsuit was timely under 28 U.S.C. 1367(d) and equitable tolling.  The state trial court sustained the county's demurrer on the ground that the action was untimely.

The appellate court agreed.  The plaintiff's statute of limitations under Government Code section 945.6(a) barred the lawsuit unless the running of the limitations was tolled until the 9th Circuit issued its mandate in the rule 60(b)(6) proceeding.  28 U.S.C. 1367(d) tolls a plaintiff's statute of limitations for filing suit in state court while a claim is pending in federal court, and for 30 days after dismissal, unless state law provides for a longer tolling period.  Although the statute does not define "pending," there is consensus in case law that for purposes of the statute a claim remains pending in the federal system through the appeal of the judgment to the federal court of appeals, but not during a period when the plaintiff pursues a petition for writ of certiorari to the Supreme Court.  As a matter of first impression, the appellate court determined that the section 1367(d) tolling period does not extend to proceedings under rule 60(b)(6).  Rule 60(b)(6) allows a court to grant relief from a judgment or order under extraordinary, exceptional circumstances.  Like a petition for certiorari, a 60(b)(6) motion does not affect the finality of the claim's dismissal.  Further, the denial of a 60(b)(6) motion does not affect the finality of a claim's dismissal.  It instead seeks to reopen a matter that is no longer pending.  A plaintiff who has prosecuted an unsuccessful appeal or who chooses not to appeal dismissal of a state law claim has received a full opportunity to seek a federal forum.  The rationale for tolling the plaintiff's time to sue in state court while the federal action is pending no longer applies.  And because rule 60(b)(6)  imposes no specific time limit, and does not forbid multiple motions, allowing tolling would leave state statutes of limitation at the mercies of plaintiffs.  The appellate court also affirmed the trial court's decision that equitable tolling did not apply.  Equitable tolling while a plaintiff pursues an alternative remedy requires that the party's effort must be objectively reasonable--fair, proper, and sensible in light of the circumstances.  Reviewing the decision de novo, the appellate court concluded that the plaintiff's pursuit of the rule 60(b)(6) motion and appeal were not reasonable under the circumstances.

Procedural Due Process Cause of Action for Denial of Convict's Request for DNA Testing Accrues when State Litigation Ends

In Reed v. Goertz, published April 19, 2022, a divided U.S. Supreme Court reversed dismissal of the plaintiff's 42 U.S.C. section 1983 lawsuit on statute of limitations grounds.  The plaintiff was convicted of murder.  He moved under Texas's post-conviction DNA testing law for DNA testing on certain evidence.  The state court denied the motion as to particular items.  The Texas Court of Criminal Appeals affirmed.  That court then denied the plaintiff's petition for rehearing.  The plaintiff then filed suit in federal court under section 1983.  He asserted the Texas post-conviction DNA testing law violated procedural due process.  The district court dismissed the action as untimely.  The Fifth Circuit affirmed, holding that the statute of limitations began running when when the Texas trial court denied the plaintiff's motion, not when the appellate court denied rehearing.

The majority disagreed.  A cause of action accrues when the plaintiff has a complete and present cause of action.  The existence of a complete and present cause of action depends on the specific constitutional right allegedly infringed.  A procedural due process cause of action does not accrue when the deprivation occurs; it accrues when the the state fails to provide due process.  The state's process at issue here includes both trial court proceedings and appellate review.  Under Texas appellate procedure rules, the appellate process includes a motion for rehearing.  The alleged violation of due process here was complete when the state litigation ended.  It ended when the rehearing motion was denied.

Justice Thomas dissented, opining the plaintiff lacked standing.  Justice Alito, joined by Justice Gorsuch, opined that the cause of action accrued either when the Texas prosecutor denied his testing request, or when the court affirmed that decision, but disagreed it did not accrue until rehearing was denied.

Plaintiff Suing Public Entity for Medical Malpractice Must Meet Both the Statutes of Limitations in the Government Claims Act and the One-Year Statute of Limitations under MICRA

In Carillo v. County of Santa Clara, published March 13, 2023, the Second District Court of Appeal, Division 4 affirmed dismissal of a medical malpractice suit after demurrer was sustained.  The plaintiff alleged that in December 17, 2017, when he was in the custody of the defendant county’s department of corrections, his right foot was amputated due to purported mistreatment of a blister.  He alleged that he first suspected wrongdoing in April 2018.  He presented a claim to the county in June 2018.  It was rejected July 19, 2019.  He filed his lawsuit on January 18, 2019, one day shy of six months after the rejection.  The county demurred, arguing that the one-year statute of limitations for medical malpractice actions under Code of Civil Procedure section 340.5 applied; and that there was no question a reasonable person having his foot amputated under these circumstances would necessarily be on notice something was wrong.  It contended that the plaintiff had to meet both the section 340.5 statute of limitations and the statute of limitations under Government Code section 945.6, requiring that suit be filed within six months after claim denial.  Relying on Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, the trial court sustained the demurrer, holding that the Government Claims Act’s filing deadlines and limitations periods do not supplant the Code of Civil Procedure section 340.5 limitations periods for malpractice actions against public entity health care providers.  The court further held that the cause of action accrued at the time of the amputation, holding the complaint allegations established the plaintiff suspected wrongdoing at that time.  On appeal, the plaintiff argued that the trial court misread Roberts.

The appellate court disagreed with the plaintiff.  Roberts held that the statute of limitations barring suit more than three years after injury was the outer limit by which a lawsuit must be filed against a public health care provider.  The Roberts court had no need to consider or decide whether MICRA’s one-year statute of limitations applied to public entity defendants.  Roberts also states that for claims against a public entity where both MICRA and section 945.6 apply, the goal is to harmonize the law and avoid interpretations that ignore one statute.  Interpreting Roberts as plaintiff urges would require ignoring MICRA’s one-year limitation.  The plaintiff was required to meet the deadlines set forth in both statutes.  The trial court also properly ruled that based on the plaintiff’s allegations there was no delayed discovery.  Although the plaintiff alleged later discovery, he failed to plead specific facts to show he could not have earlier made this discovery, even with reasonable diligence.  The appellate court also agreed with the trial court that a reasonable person would have been on notice when his foot was amputated that something was wrong, and would have acted diligently to discover the cause of his injury at that time.

Note:  This case's holding conflicts with the holding in Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1202, that the six-month statute of limitations in the Government Claims Act controls over the one-year statute of limitations in MICRA.

Whether Mother's Knowledge of Baby's Death and Request for Autopsy Established Accrual of Medical Malpractice Claim Is Issue of Fact

In Kernan v. Regents of the University of California, ordered published September 20, 2022, the First District Court of Appeal, Division 4 reversed summary judgment for the defendant Regents.  On November 4, 2016, the plaintiff went to the defendants' hospital for a procedure to rotate her healthy fetus to a head-first position.  There was no indication of any problem.  Later that night, after discharge, the plaintiff could not feel any fetal movement.  The next day, she returned to the hospital.  Doctors informed her that day that there was no fetal heartbeat, and she had suffered an interuterine fetal demise.  They told the plaintiff they could not determine the etiology of the death, and that nothing in the literature indicated an association between the procedure performed and fetal demise.  Per medical records, the plaintiff debated that day whether to have an autopsy performed. Her doctors explained that autopsies are often unsuccessful in establishing the underlying cause of the fetal death, although they can provide peace of mind.  The plaintiff denied discussing an autopsy that day.  That day, the doctors induced labor.  The plaintiff delivered a stillborn baby on November 7, 2016.  A doctor told the plaintiff an initial examination of the delivered baby, placenta, and did not show indicators as to why the baby died.  At some point after the delivery, the plaintiff ordered an autopsy.  A doctor met with the mother on July 10, 2017 to discuss the autopsy results.  The doctor told the plaintiff her case had been discussed during a mortality and morbidity conference at the hospital, but the doctor refused to answer the plaintiff's questions about what was said.  The plaintiff states that during this meeting, she first suspected medical negligence caused the death.  She served notice of intention to sue on November 6, 2017, and filed suit on February 2, 2018.  The trial court granted summary judgment on the ground that the lawsuit was filed outside the one-year statute of limitations under Code of Civil Procedure section 340.5.

The appellate court ruled that the date of accrual of the medical malpractice action was an issue of fact.  The statute of limitations began running when the plaintiff suspected or should have suspected that her injury was caused by wrongdoing.  Based on the notice of intent she served, which extended the statute of limitations 90 days, the plaintiff's action was timely if accrual was on or after November 6, 2016.  The defendants contended that the cause of action accrued on November 5, 2016, when the plaintiff learned of the fetus's death and records indicated she discussed an autopsy.  The evidence did not establish without dispute that the plaintiff subjectively suspected negligence that day.  The records state that the plaintiff was interested in an autopsy but was undecided.  The plaintiff herself denied discussing an autopsy that day.  Further, in light of the doctors' discussion with the plaintiff, a reasonable trier of fact could conclude the plaintiff discussed an autopsy to seek closure and obtain information, not because she subjectively suspected wrongdoing.  Further, the plaintiff remained under the doctors' care until she delivered the fetus on November 7.  A fact trier could conclude that the plaintiff had not lost trust in her doctors at that point.  On the objective prong, reasonable minds could differ on whether the events of November 5 the plaintiff should have suspected the defendants' wrongdoing on November 5, given that the doctors did not suspect wrongdoing, and the autopsy report corroborates the plaintiff's understanding that fetuses sometimes die in utero for unknown reasons.

In Split of Authority, Appellate Court Holds That Claimant Can Argue Actual Claim Compliance in Government Code Section 946.6 Petition for Relief from Late Claim

In Simms v. Bear Valley Community Health Care District, published June 28, 2022, the Fourth District Court of Appeal, Division 2 reversed an order denying a Government Code section 946.6 petition for relief from the claim requirements and dismissing the case.  The respondent is a local health care district.  On December 8, 2017, the plaintiff was injured and sought treatment at the district’s emergency room.  In December 2017 and January 2018, he went to appointments with several district providers to obtain additional treatment.  He verbally complained about his treatment on December 26, 2017 and January 26, 2018, alleging the providers were refusing to investigate and treat his complaints because they perceived him as trying to obtain drugs on false pretenses.  The district responded to the complaints with a January 30, 2018 letter.  Appointments in March and April 2018 also did not meet the plaintiff’s expectations.  On April 24, 2018, the District sent plaintiff a “formal notice” that it would no longer serve as his primary care provider.  On May 13, 2018, the plaintiff sent the district a letter, framed as a response to the January 30, 2018 letter.  In the letter, he complained about his treatment.  He demanded all references to “drug seeking behavior” be removed from his medical records, and that he receive a written apology from one doctor.  He threatened that if he continued to be “defamed, harassed, mistreated, and ignored” by the district, he would “take his concerns to a higher level” by “filing a lawsuit for restitution.”  The district did not respond to this letter.  On July 11, 2019, Simms sent the district a letter framed as a Code of Civil Procedure section 364 notice, addressed to the same District employee as the May 2018 letter.  In this letter, the plaintiff wrote he intended to file a medical malpractice suit against the district.  He represented that in July and September 2018 he had received results of MRI scans that revealed spinal injuries from the 2017 fall that the district had failed to diagnose, resulting in further damage and delay of treatment.  He also complained of withdrawal symptoms from failure to prescribe medications.  The district treated this letter as a claim under the Government Claims Act.  It responded with a Notice of Return of Late claim.  On July 30, 2019, the plaintiff applied to the district for leave to present a late claim.  The district denied it on August 20, 2019.  On November 18, 2019, plaintiff petitioned the trial court under Government Code section 946.6 for relief from the claim requirement.  The court denied the petition.  It ruled that the May 2018 letter did not comply with the Government Claims Act’s requirements, and could not be deemed either a claim or a defective claim.  It further found that the plaintiff had failed to show entitlement to relief.

The appellate court ruled that the trial court should have treated the plaintiff’s May 2018 letter as a defective claim; the district had waived any defect by failing to timely serve a Notice of Insufficiency; and therefore the trial court should have allowed the plaintiff to proceed with a lawsuit alleging causes of action encompassed by that claim.  The court acknowledged the split of authority among appellate courts on whether a party could assert in a section 946.6 petition that the claimant had actually submitted a timely claim, or whether the argument could only be made in a subsequent lawsuit.  The court decided that it would side with the courts allowing a petition to show actual compliance, so long as the issue did not depend on disputed issues of fact that would have to be submitted to a jury.  Where raised in an appeal from a claim-relief proceeding, after having been argued fully in the trial court and submitted on appeal without reservation or argument that the issue remains pending below, the issue of actual compliance is properly addressed on appeal. The court further observed that the notices a public entity is statutorily required to send to a claimant whose claim is untimely, or whose late-claim applications are denied, are inaccurate for claimants who actually submitted a timely claim, in that they advise the claimant that the “only recourse” is to follow the late-claim procedure.  The issue of whether the plaintiff’s May 2018 letter qualified as a claim, or as a “claim as presented” or “trigger claim” that triggered the district’s duty to respond with a Notice of Insufficiency, is an issue of law the appellate court reviews de novo.  The letter communicated that he felt he had compensable claims for defamation and medical malpractice against the district, and that if it was not settled he would bring a suit for restitution—i.e., damages.  It therefore qualified as a “claim as presented,” and the district waived its defects by not sending a timely Notice of Insufficiency.  The district contended that the plaintiff’s cause of action did not accrue until the MRI scans he had after he sent the letter.  But his causes of action accrued when he sustained injury and suspected a negligent cause, which could have been as early as December 2017 or January 2018, when he orally complained.  The plaintiff failed to present a late-claim application within a year of accrual, which deprived the trial court of jurisdiction to grant him relief from the claim requirements.  But it did not deprive the court of jurisdiction to deem his claim actually timely.  The issue of whether the statute of limitations for filing suit had also passed.  Although the two-year statute of limitations under Government Code section 945.6(a)(2) would have expired by May 2020, the court deemed the statute of limitations equitably tolled as of January 10, 2020, when the trial court found the May 2018 letter was neither a claim nor a defective claim.  As of that date, the plaintiff was bound by claim preclusion from filing suit and arguing that he had complied with the claim requirement.  The tolling period would run through the remittitur on the appeal.  The appellate court directed the trial court to deny the petition for relief without prejudice to the plaintiff filing a complaint and proceeding with a lawsuit.

To Commence Statute of Limitations, Claim Rejection Notice Must Advise Claimant to Consult Attorney, Even if Claimant Already Represented

In Andrews v. Metropolitan Transit System, published January 31, 2022, the Fourth District Court of Appeal, Division 1 reversed summary judgment granted to the defendant agency based on the statute of limitations.  The claimant presented a claim to the agency, seeking damages for personal injuries. The claim listed the claimant's attorney as the contact to whom notices should be sent.  The agency rejected the claim.  The claim set forth the warning about the six-month statute of limitations prescribed in Government Code section 913, but omitted the statutorily-prescribed warning, "You may seek the advice of an attorney of your choice in connection with this matter.
If you desire to consult an attorney, you should do so immediately."  The claimant filed suit almost eight months after the agency mailed the notice of rejection.  In her opposition to the motion, the claimant argued the notice denying the claim was defective because it omitted the warning to consult an attorney.  The trial court granted the motion.  The court ruled that the agency had complied with section 913 by providing a warning that was substantially the same as that provided in section 913 under the circumstances, because it was known the claimant was represented by counsel.

The appellate court rejected this argument.  Government Code section 913, subdivision (a) describes the mandatory requirements for delivering a notice denying a claim, and provides language that "may" be used for the text of the notice.  Subdivision (b) of section 913 sets forth a warning that "shall" be included if a claim is rejected.  The subdivision provides that the warning shall be included "in substantially the following form" and then sets forth both a warning about the six-month statute of limitation and a warning to consult an attorney.  The term "shall" indicates the warning is mandatory.  Under Government Code section 945.6, the entity's compliance with section 913 determines the applicable statute of limitations:  If the entity gives notice in accordance with section 913, the claimant must commence suit within six months after the notice is personally delivered or put in the mail; if notice is not given in accordance with section 913, the claimant has two years from accrual to commence the lawsuit.  Compliance with section 913 includes providing the warning required by statute.  The notice here did not include the warning about a lawyer.  The court rejected the argument that the language substantially complied because the claimant was represented by counsel.  Substantial compliance requires actual compliance in respect to the substance essential to every reasonable objective of the statute.  A statutory objective of section 913 is to inform the claimant of the desirability of promptly consulting an attorney.  Even if a claimant presented a claim through an attorney, the claimant might have retained the attorney only to present a claim, or the attorney may no longer represent the claimant.  The appellate court also rejected the argument that the absence of the warning had no influence on the timing of the lawsuit; the claimant's reaction has no bearing on whether the notice of rejection complied with section 913 in the first place.  The two-year statute of limitations therefore applied.

Denial of Unauthorized Claim Does Not Trigger Six-Month Statute of Limitations; Notices in Response to Claim Must Be Presented to Address Set Forth in Claim

In Cavey v. Tualla, published September 24, 2021, the Fifth District Court of Appeal reversed the dismissal of a personal injury lawsuit against a public entity after demurrer.  In May 2017, the plaintiff was a passenger hit by a truck driven by the defendant employee of a school district and owned by the district.  After the accident, the plaintiff received treatment from a chiropractor, who had her sign several forms.  Among them was a one-page "CLAIM FOR DAMAGES."  The plaintiff allegedly believed this was a lien, not a governmental claim.  The only address listed in the claim was the plaintiff's post office box.  In June 2017, the chiropractor presented the claim to the district by fax.  (This method of presentation, the court noted, did not comply with the Government Claims Act, but the district waived this defect by not responding with a Notice of Insufficiency.)  Later in June 2017, the plaintiff retained counsel.  The counsel notified the adjuster for the district that they were representing the plaintiff.  In July 2017, the adjuster signed a notice of rejection of the claim the chiropractor presented.  The adjuster mailed the rejection notice to the plaintiff's counsel, and not to the plaintiff's post office box.  The rejection notice did not include a copy of the claim rejected.  The firm assumed the rejection notice related to the claim of other claimants involved in the accident.  In September 2017, the counsel presented a claim (containing more detail than the chiropractor's claim) to the district on behalf of the plaintiff.  The district did not respond to the claim.  The claim was deemed rejected by operation of law in November 2017.  In April 2018, the counsel filed a complaint on behalf of the plaintiff.  The complaint was thus filed less than five months after the rejection by operation of law, and 11 months after the accident.  The district obtained a demurrer on the ground that the June 2017 claim for damages was signed by and presented on behalf of the plaintiff, and that plaintiff had failed to file suit within six months of the July 2017 rejection of that claim.

The appellate court concluded that the chiropractor's claim was a nullity, and that the rejection of that claim did not trigger Government Code section 945.6(a)(1)'s six months statute of limitations.  The court analyzed the language in Government Code sections 910 and 910.2 that a claim may be presented and signed either by the claimant or by a person acting on the claimant's behalf.  After considering case law dealing with unauthorized claims, and the policies behind the claims requirement, the court found an ambiguity in the statutory language as to what "on the claimant's behalf"  meant.  The court further concluded that the claimant's intent should control whether a claim was presented on her behalf.  A claim is presented on a claimant's behalf if the claimant knowingly and intentionally authorized the third person to present it; or alternatively if the claimant knowingly and intentionally ratified the claim after it was presented to the public entity.  An unauthorized, unratified claim is treated as a nullity, and the entity's notice of rejection of the unauthorized, unratified claim does not trigger the six-month statute of limitations.  The possibility that public entities might be harmed by this statutory interpretation can be addressed by permitting public entities to assert equitable estoppel if they relied on an unauthorized claim to their injury, provided the other elements of estoppel are satisfied.  Because an unauthorized and unratified claim is a nullity, the claimant need not repudiate such a claim.  Applying this interpretation to the facts, the allegations in the plaintiff's complaint, assumed true on demurrer, indicate that the plaintiff neither knowingly and intentionally authorized the chiropractor to present the claim on her behalf, nor ratified the claim after presentation.  Further, while repudiation is not necessary, the claimant's  presentation of an authorized claim acts as a repudiation of the unauthorized claim, unless the entity shows that undue prejudice.  Undue prejudice is detriment to the entity's ability to defend the case on the merits or fulfill the legislative purposes of the claim statute (ability to perform an adequate pre-litigation investigation and decide whether to settle; take potential liability into account for budgeting; and address a dangerous situation to avoid further injury).  Loss of a statute of limitations defense is not undue prejudice.

Alternatively, the court deemed the notice of rejection of the chiropractor's claim defective, because it was sent to legal counsel for the claimant rather than the only address in the claim:  The claimant's post office box address.  The plain language of Government Code section 915.4 is that the notice must be sent to the address of the claimant as set forth in the claim, or the address the claim sets forth as the address to which notices are to be sent.

Discovery Accrual Standard Applies to Statute of Limitations for Liability Based on Statute

In Holman v. County of Butte, ordered published August 25, 2021, the Third Appellate District reversed the dismissal of a case on demurrer.  The plaintiff alleged that the defendant county, its Health and Human Services Department, and its Sheriff's Office negligently failed to perform mandatory duties related to investigating and reporting allegations of child abuse the plaintiff's parents perpetrated on him in the mid-2000s.  The plaintiff alleged repressed childhood memories returned to him in 2017.  He filed the lawsuit in 2020.  He sued under Government Code section 815.6.  The county defendants demurred, argued that the statute of limitations prescribed in Code of Civil Procedure section 338, subdivision (a) governing liability based on statute applied.  The statute of limitations is three years.  The defendants contended that because other subdivisions of section 338 expressly provide for accrual based on discovery, the discovery standard of accrual does not apply to subdivision (a).  The trial court agreed.

The appellate court disagreed.  The common law discovery rule is available when section 338, subdivision (a) is the applicable statute of limitations.  The courts have applied the discovery rule to other subdivisions of section 338 that do not expressly provide for application of the discovery rule.  Absent the Legislature's clear intent, the court presumes the Legislature intended to make the common law discovery rule applicable.  The Legislature did not provide that the rule was inapplicable to subdivision (a), nor did it adopt a statute of repose cutting off all liability after a given amount of time no matter the circumstances.  The other subdivisions merely provide different triggers of the limitation period than the judicial discovery rule.  Further, at least one previous case had applied the discovery rule to subdivision (a).  That the plaintiff failed to plead diligence after discovering his cause of action did not affect the timeliness of his complaint, because the plaintiff filed suit within three years of accrual.