Public entities and their employees are entitled to special notice prior to being sued. The notice must contain specific information. It must be served on the correct person. Service must take place within a defined, short period of time after the incident. This time period is NOT extended (or tolled) when the victim is a child.
All of these requirements differ from state to state. As a general rule, a safe way of proceeding is to contact the public entity itself and ask them for the forms they require prior to being sued. They usually will give you their form, and it usually will have the requirements printed on it. However, you must act fast: get the form within 30 days and be prepared to complete the form and serve it on them in 60 days.
Here is how it would be done in California (with regard to a public entity):
- Determine whether the defendant is, in fact, a public entity, by reviewing the California Roster of Public Entities maintained by the California Secretary of State, or if it is not on the roster, by asking the head of the agency. Note: school districts are considered to be public agencies even though they are not on the roster, and in some cases a humane society can be a public agency (see Humane Society Liability for Dog Bites). When in doubt, always assume that the potential defendant is a public entity or governmental employee, and send the notice of claim.
- Obtain the entity's form of notice.
- Serve the notice by mailing it within 6 months from the date of the incident. If the 6 months have expired, do not assume that nothing can be done; retain an attorney immediately to see whether any loopholes apply.
In-depth legal analysis of California law pertaining to the notice of claim
Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, § 911.2; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 (Bodde), but see Gov. Code, § 905 [itemized exceptions not relevant here].) In 1979 and 1980, a claim relating to a cause of action for "injury to person" had to be presented to a government entity"not later than the 100th day after the accrual of the cause of action." (Gov. Code,§ 911.2, added by Stats. 1963, ch. 1715, § 1, p. 3376.) Since 1988, such claims must be presented to the government entity no later than six months after the cause of action accrues. (Gov. Code, § 911.2, as amended by Stats. 1987, ch. 1208, § 3, p. 4306.) Accrual of the cause of action for purposes of the government claims statute is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants. (Gov. Code, § 901; Whitfield v. Roth (1974) 10 Cal.3d 874, 884-885; Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 615; Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 355.)
Timely claim presentation is not merely a procedural requirement, but is, as this court long ago concluded, " ‘ "a condition precedent to plaintiff's maintaining an action against defendant" ' " (Bodde, supra, 32 Cal.4th at p. 1240, quoting Williams v. Horvath (1976) 16 Cal.3d 834, 842), and thus an element of the plaintiff's cause of action. (Bodde, supra, at p. 1240.) Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action. (Bodde, supra, at p. 1245.)
Only after the public entity's board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity. (Gov. Code §§ 912.4, 945.4; Williams v. Horvath, supra, 16 Cal.3d at p. 838.) The deadline for filing a lawsuit against a public entity, as set out in the government claims statute, is a true statute of limitations defining the time in which, after a claim presented to the government has been rejected or deemed rejected, the plaintiff must file a complaint alleging a cause of action based on the facts set out in the denied claim. (Code Civ. Proc., § 342; Gov. Code, § 945.6; Addison v. State of California (1978) 21 Cal.3d 313, 316; Tubbs v. Southern Cal. Rapid Transit Dist. (1967) 67 Cal.2d 671, 675; County of Los Angeles, supra, 127 Cal.App.4th 1263, 1271; Martell v. Antelope Valley Hosp. Med. Center (1998) 67 Cal.App.4th 978, 981-982; see Cal. Law Revision Com. com., reprinted at 32A pt. 1 West's Ann. Gov. Code (1995 ed.) foll. § 945.6, p. 33 (1963 Addition).)
