The other shoe isn’t quite falling yet

Responding to the title of this week’s Town Dandy, which pertains to the first half of the column – we’re not quite at the point of no return with a lawsuit. Hank Sims notes that an associate of famed civil rights attorney Dennis Cunningham has filed with the county a tort claim, just under the wire for the 6 month deadline for any claims against a public entity.

Let me just go over the process for clarity. The basic rule of common law is that you can’t sue the King. Government is excempt from all lawsuits except where government specifically provides for such actions. In California you have strict guidelines in which you have to file a claim on one of the entities forms within six months of the action or you most likely lose your right to the claim (the time limit used to be 90 days, but very often people don’t even make it in to see an attorney by then). The filing is quick and easy – used to be free, but now government agencies are nickle-and-diming wherever they can, so there is a fee. The point is, we file these things routinely often before we’ve had a chance to investigate the case as 6 months can go by very quickly. We often file them to “preserve the client’s rights” and stall until we’ve had a chance to fully investigate.

What happens next – the claim goes before whatever board or decision making process governs the agency, and is routinely rejected. The theory behind the restriction is to allow the government entity the opportunity to investigate and resolve claims without facing legal expenses of litigation, but in my nearly 11 years of practice I’ve seen this happen only once with a relatively minor impounding fee refund where it was obvious that the vehicle should not have been seized. I’ve probably filed from 50 to a hundred other claims and they are always rejected for the same reason – that the claim involves issues of “such complexity” as to warrant the matter be dealt with in the proper legal context. Yeah, car accidents caused by state employees are soooo complex. The real effect is to essentially shorten the statute of limitations for government and relieve the public entity from liability for anybody who snoozes. There is relief for late claims, but it’s not often granted.

So the matter is either rejected within 45 days or is not acted upon at all. The entity has an incentive to reject the claim because if 45 days expire without response the claimant has 2 years from the date of the incident to file. If there is a rejection in writing, the claimant is given 6 months to file a complaint in compliance with Government Code. We usually take advantage of this time to investigate and decide whether we can effectively represent the client. So it’s very possible in the case of Cheri Moore’s family that no final decision has been made to file.

However, Hank has reported on the filing of the claim, and that may up the ante (that’s a good thing), particularly for the D.A.’s office. Gallegos has an easy out here. He can turn the matter over to the Attorney General’s office if he feels there is a conflict of interest or even merely the appearance thereof. Nobody, except maybe some of the anonymous bloggers would fault him for making that decision. It’s one point that Heraldo, Rose, and I have all agreed upon. And there’s no telling what Jerry Brown will do with it (I imagine Lockyer would punt to his successor as he seems to have been cowed into playing everything safe of late).