Q. A public entity moves for summary judgment alleging the complaint was filed more than 6 months after it served a notice of rejection of the claim. The plaintiffs present evidence the notice was not received. Who wins?
A. The public entity.
If a public entity does not reject a claim within 45 days it is rejected by operation of law. (GC 912.4.) The deadline to file suit is six months from service of notice of rejection of the claim or, if notice is not served, two years from the date of injury. (GC 945.6.) In Him v. City and County of San Francisco (2005) 133 CA4th 437, the public entity moved for summary judgment, attaching proof of service of a notice of rejection 16 months before suit was filed. The plaintiffs countered with a secretary’s declaration that no notice was received. The court affirmed summary judgment.
The court agreed that “evidence of nonreceipt is logically probative of nonmailing” and that, “absent contrary statutory authority,” such evidence would be “sufficient to raise a triable issue of fact and defeat summary judgment.” However, it found in the claim-filing statutory scheme a legislative intent to place on the claimant the risk that a properly mailed notice is not delivered. It therefore concluded that evidence of nonreceipt was not sufficient to raise a triable issue. The court observed that, if no notice is received after 45 days, the claimant “has the opportunity to inquire about the denial and determine, thereby, the limitations period.”
The Takeawy: The thrust of Him appears to be that mere evidence of nonreceipt is insufficient to raise a triable issue, but direct evidence of nonmailing can be. After 45 days a claimant should make inquiries and document any representation by the public entity that no notice has been mailed. (Because a notice of rejection can be sent even after the 45-day period, periodic inquiries would be necessary.) Presumably, evidence of such a representation would be sufficient to raise a triable issue should the public entity later make a contrary claim.
The check’s in the mail—we hope
Q. Client was injured by the negligence of the state on January 31 of a non-leap year. She consults an attorney on August 1. The attorney prepares a claim and deposits it in the mail, forgetting to enclose the $25 filing fee required for claims against the state (GC 905.2). The state receives the claim the next day. Is it timely?
A. Maybe or maybe not—it’s a bit of a trick question with a number of issues that do not have definitive answers.
Mailing or receipt? A personal injury claim must be “presented” “not later than six months” after it accrues. (GC 911.2(a).) GC 915.2 provides that a claim shall be deemed to have been “presented and received” at the time of its deposit in the mail. So as a rule a claim will be timely if it is mailed within 6 months of accrual even if it is not received within that time period.
How long is “6 months”? No case has construed what “six months” means in 911.2(a). However, the same language is used in GC 945.6(a)(1) to state the SOL for filing a complaint following a written notice of denial of the claim. As used in 945.6, “six months” means 6 calendar months or 182 days, whichever is later. (Gonzalez v. County of Los Angeles (1988) 199 CA3d 601, 604; see _/_/2012 Blawg, “Sometimes it depends on what the meaning of ‘is’ is.”) A strong argument can be made that it should mean the same in 911.2. If the Gonzales analysis applies to 911.2(a), the claim is timely because in a non-leap year August 1 is the 182nd day after January 31.
State vs. local public entity. This is the real “trick” part of the question. Everything I’ve said up to now would apply to a claim against a local public entity and that would be the end of the matter. But this claim is against the state.
A claim against the state must be accompanied by a filing fee. (GC 905.2.) GC 911.2(b) provides that, for “purposes of determining” whether a claim against the state was “commenced within the period prescribed by law,” the date it was “presented” is the date it was “submitted with the twenty-five ($25) filing fee.” No case has construed this language. If it’s taken literally, then the claim is not timely because it was not submitted “with the . . . filing fee” and thus technically was never “presented.”
This seems like an extremely harsh result and my guess is most appellate courts would do their utmost to avoid it. In future posts we’ll discuss how that might be done.
The Takeaway: Before you mail off that claim against the state, make sure you’ve enclosed the filing fee. If you forget to enclose it—well, then keep an eye peeled for our upcoming post on late claim procedure.
Q. Client presented a claim for injury caused by the negligence of a public entity. The public entity mailed written notice of denial of the claim on January 31, which was received by Client on February 1. He consults Attorney on August 1 who files a complaint that day. Is the complaint timely?
A. It depends on whether it’s a leap year.
Mailing or receipt? Under GC 945.6(a)(1) the complaint must be filed “not later than six months” after the notice of rejection is “personally delivered or deposited in the mail.” This has been consistently held to mean what it says—the 6-month period starts when the notice is mailed, not when it’s received. So the 6 months is counted from January 31.
How long is “6 months”? In Gonzalez v. County of Los Angeles (1988) 199 CA3d 601, 604, the court construed the term “six months” as used in 945.6 to mean “six calendar months or 182 days, whichever is longer.” In a non-leap year, a complaint filed August 1 would be timely because it’s the 182nd day after January 31. In a leap year, August 1 would be the 183rd day and the SOL would have run July 31.
5 extra days for mailing? It has long been held that CCP 1013(a) does not apply to extend the limitations periods of 945.6(a)(1). (E.g., Edgington v. County of San Diego (1981) 118 CA3d 39, 45.)
GC 915.2 governs mailing of pleadings under the Government Claims Act. In 2002 it was amended to provide (à la CCP 1013(a)) for the extension of deadlines when “notices” and other specified pleadings were served by mail. Unfortunately, it was never clear from the language of the amendment whether it operated to extend the SOL period of 945.6(a)(1). However, the issue is now moot because 915.2 was amended effective 1/1/2012 to explicitly state that it does not extend the SOL deadlines under 945.6.
The Takeaway: “Deposited in the mail” means “deposited in the mail,” but “six months” does not always mean “six months.”