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What Construction Contractors Should Know About the California Government Claims Act


The Building Envelope. CC0.


If you work on state or local public works projects in California you should have at least a basic understanding of the Government Claims Act formerly known as the Tort Claims Act (Govt. Code §§ 900 et seq.). In the event of a dispute with a public entity, the Government Claims Act will usually apply, absent contractual provisions providing otherwise (Govt. Code §§930, 930.2) (e.g., in a construction contract), and requires that a “claim” first be presented to a “public entity” before a claimant files a lawsuit against the public entity. Failure to comply with the Government Claims Act can serve as a bar to maintaining a lawsuit against a public entity.


What types of claims does the Government Claims Act apply to?

The Government Claims Act broadly applies to most claims against state and local public entities. This is not limited to construction projects and includes all claims for “money or damage” arising from death, personal injury, breach of contract, and damage to real and personal property, wrongful death, or breach of contract.


Note: The Government Claims Act does not apply to claims against the Regents of the University of California (Govt. Code §905.5). Further, the Trustees of the California State University have their own claim response requirements (Govt. Code §912.5) as does the Judicial Council (Govt. Code §912.7) and the State of California (Govt. Code §912.8).


What types of claims does the Government Claims Act not apply to?


The Government Claims Act does not apply claims that are statutorily excepted. For construction contractors, this includes claims filed with local public entities “in connection with the filing a notice of lien, statement of lien, or stop notice” (Govt. Code §905(b)). Thus, if you are a subcontractor or materials supplier, and have served a stop payment notice, you are not required to file a Government Claims Act claim as a condition of filing a lawsuit to enforce a stop payment notice.


In addition, as discussed above, where a claimant and the public entity have entered into a written contract, the written contract may have different claims resolution procedures than those prescribed under the Government Claims Act. I’ve seen it go both ways, so it’s important to ready your contract!


Note: I’ve always thought it was interesting that the Government Code identifies claims “in connection with . . . the filing of a . . . notice of lien” because, if it refers to mechanics liens, mechanics liens are not permitted on public works projects.


What is the deadline to file a claim under the Government Claims Act?


The deadline to file a claim under the Government Claims Act depends on the type of  claim. A 6 month deadline applies to claims involving:


  • Death;

  • Personal injury; or

  • Injury to personal property or growing crops (Govt. Code §911.3).


All other claims must be brought before 1 year (Govt. Code §911.2). As it applies to construction contractors, this would include, but is not limited to, claims involving:


  • Breach of contract;

  • Extra work claims;

  • Extended general overhead claims.


Note: Like most statutes of limitation, when the “clock begins ticking” on the 6 month and 1 year deadlines, which the Government Code refers to as the “accrual of the cause of action,” is extremely important and can be very fact specific. Further, local public entities may prescribe longer deadlines than the above, but not shorter deadlines (Govt. Code §935).


What if I failed to file a claim by the claim deadline under the Government Claims Act?


The Government Claims Act includes late filing provisions but they generally don’t help construction contractors. For claims in which the 6-month deadline applies, a claimant may file a written application with a public entity to file a late claim, provided that the application:


  1. is filed within 1 year after accrual of the claim;

  2. states the reasons for the delay in presenting the claim; and

  3. includes a proposed copy of the claim (Govt. Code §911.4).


Valid reasons for filing a late claim include:


  1. Mistake, inadvertence, surprise, or excusable neglect by the claimant without prejudice to the public entity;

  2. The claimant was a minor during the entirety of the 6-month deadline period or was a minor during any time within the 6-month deadline period but presented a claim within 6 months of turning 18 or a year after the claim accrued, whichever occurs first;

  3. The claimant was physically or mentally incapacitated during the entirety of the 6-month deadline period, and due to that disability, failed to timely present a claim; or was physically or mentally incapacitated during any time within the 6-month deadline period but presented a claim within 6 months of not being incapacitated or a war after the claim accrued, whichever occurs first.

  4. The claimant died before the 6-month deadline period (Govt. Code §911.6).


A public entity has 45 days to grant or deny an application to file a late claim, and if a public entity fails to respond, an application is deemed to be denied on the 45th day, unless the public agency and the claimant enter into a written agreement to extend the 45-day period before the expiration of the 45-day period (Govt. Code §911.6).


What information must be included in a Government Claims Act claim?


A claim must be submitted to a public entity by the claimant or a person acting on behalf of a claimant and include the following information:


  1. The name and post office address of the claimant;

  2. The post office address to which the person presenting the claim desires notices to be sent;

  3. The date, place and other circumstances of the occurrence or transaction which give rise to the claim asserted;

  4. A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;

  5. The name or names of the public employee or employees causing the injury, damage, or loss, if known; and

  6. The amount claimed if it totals less than $10,000 as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds $10,000, no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case (Govt. Code §910).


Note: Government Claims Act claims are required to be signed by the claimant or by a person acting on behalf of a claimant. However, claims against local public entities for supplies, materials, equipment, or services do not need to be signed if presented on a billhead or invoice regularly used in the conduct of the business of the claimant (Govt. Code §910.2). However, the safer approach, is to just sign the claim. Further, claims presented to the California Department of General Services must be accompanied with a filing fee of $25.00.


Where do you send a Government Claims Act claim?

Government Claims Act claims, including amendments, and applications to file a late claim, can be presented to local public entities by:

  1. Personal delivery to the clerk, secretary or auditor;

  2. Mailing it to the clerk, secretary, auditor or the governing body at its principal office; or

  3. Electronic submission but only if expressly authorized through an ordinance or resolution of the local public entity (Govt. Code §915).


Note: Special delivery instructions apply to Government Claim Act claims presented to the State of California, the judicial branch, and the Trustees of the California State University (Govt. Code §915).


Are there forms available to file a Government Claims Act claim?


Yes and no. Some, but not all, local public entities have their own entity-specific Government Claims Act claim forms. State agencies, including CalTrans, and the judicial branch are required to have their own entity-specific Government Claims Act forms. Claimants should use entity-specific Government Claims Act claim forms when available because a public entity can return a claim if not presented on a correct form (Govt. Code § 910.4).


Can you amend a Government Claims Act claim after it has been filed?


Yes. A Government Claims Act claim can be amended before the later of: (1) the deadline to file a claim; or (2) before final action is taken by the public entity (Govt. Code §910.6).


Can a public entity reject a Government Claims Act claim because it is not signed or fails to include the required information?


Yes. A public entity can give written notice to a claimant within 20 days after a Government Claims Act claim is submitted if the public entity deems the claim to be insufficient, stating with particularity the alleged defects or omissions in the claim (Govt. Code §910.8). The failure of a public entity to give notice is deemed a waiver by the public entity of any alleged insufficiency (Govt. Code §911).


What happens once a claimant submits a Government Claims Act claim?


A public entity has 45 days after submission of a Government Claims Act claim or amended claim to act on the claim, and if a public entity fails to respond, the claim is deemed to be denied on the 45th day following submission, unless the public entity and claimant enter into a written agreement to extend the 45-day period: (1) before the end of the 45-day period; or (2) after the expiration of the 45-day period, provided that an action based on the claim has not been commenced and within 2 years actual of the cause of action (Govt. Code §912.4).


For claims against local public entities, local public entities can either: (1) reject a claim; (2) accept a claim; or (3) reject and accept a claim in part (Govt. Code §912.6).


Note: Local public entities may prescribe shorter deadlines than the above, but not longer deadlines (Govt. Code §935).


What happens if a public entity rejects or rejects in part a Government Claims Act claim?


If a public entity rejects or rejects in part a Government Claims Act claim, the claimant must file suit against the public entity as follows:


  1. Within 6 months of the public entity’s notice of rejection or rejection in part of a Government Claims Act claim; or

  2. Within 2 years of the accrual of a cause of action if Government Claims Act claim is deemed rejected because no notice was given by the public entity.


Note: If a public entity rejects in part a Government Claims Act claim, claimants should carefully read the terms of the public entity’s acceptance of a portion of the claim, as it may provide that the claimant agrees to waive rejected portions of a claim if it agrees to the accepted portion of the claim (Govt. Code §946). Further, when filing a lawsuit against a public entity, it is best to include allegations stating that the plaintiff has followed the requirements of the Government Claims Act, including when the claim was submitted, and when it was rejected either formally by the public entity or deemed rejected as a matter of law.

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