The Importance of Code Compliance in Government Tort Claim Rejections
The California Court of Appeals has ruled that a notice of rejection does not meet the standard set by Government Code section 913 if the notice does not include a warning to consult an attorney. A notice without this warning is defective and does not invoke the six-month statute of limitations, allowing claimants to file a lawsuit within two years of the alleged injury.
Gov. Code section 913(b) provides that “if a clam is rejected, the notice… shall include a warning in substantially the following form:”
“Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6.
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.”
Andrews v. Metropolitan Transit System (D0775500, Jan 31, 2022), heard by the Fourth District Court of Appeals, Division One (San Diego), involved the latter half of section 913(b). In Andrews, the plaintiff was injured when she fell while boarding a Metropolitan Transit System (“MTS”) bus. Alleging that the driver “negligently accelerated,” Andrews filed a claim for damages with MTS who rejected the claim on November 14, 2017. The notice included the following warning:
“Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action in a municipal or superior court of the State of California on this claim. See Government Code Section 945.6. This time limitation applies only to causes of action arising under California law for which a claim is mandated by the California Government Tort Claims Act, Government Code Sections 900 et. seq. Other causes of action, including those arising under federal law, may have shorter time limitations for filing.”
The notice provided by MTS did not advise claimants to seek the advice of an attorney.
Andrews, who was represented at the time MTS rejected the claim, filed suit eight months later. Moving for summary judgment, MTS argued the claim was barred by the six-month statute of limitations. In granting summary judgment, the trial court reasoned that the warning provided by MTS was “substantially the same as that provided in section 913 under the circumstances because it was known Plaintiff was represented by counsel and the notice of rejection was sent to Plaintiff’s counsel.”
The Court of Appeals overturned the decision, finding that use of the word “shall” in section 913(b) indicated the warning was mandatory. The court reasoned that failure to advise Andrews to seek the advice of an attorney was beyond a mere “technical deviation” because “one objective of section 913 is to ensure claimants are advised that they should consider consulting an attorney and do so promptly.” The court added, “the warning provided by MTS in its notice of rejection did not comply with this objective of the statute because it did not say anything about consulting an attorney. The doctrine of substantial compliance therefore does not apply.”
This case is a helpful reminder that public entities must carefully review tort claim rejection notices to ensure strict compliance with the Government Code. A notice of rejection that adheres to the requirements the Code will limit the timeframe for which potential claimants may file lawsuits to six months and limit the entity’s liability exposure. Failure to fully comply can add months or even years to the time to file suit.
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