Thursday, January 6, 2011

Filing a Late Claim with a School District, College or Governmental Entity

By Michelle Ball, California Education Attorney for Students since 1995

The last two posts concerned filing the prerequisite claim form prior to going to court if one is suing a governmental entity in California.  But, WHAT DO YOU DO IF YOU MISS THE SIX MONTH TIME LIMIT TO FILE YOUR CLAIM?  

First, don't forget exclusions to the filing requirement which may exempt some claims from filing at all. This post presumes the 6 month time limit may apply.

Remember, there are two time limits we have discussed for filing a claim form: one at 6 months for certain types of claims (e.g. personal injury, death, etc.), one at one year (claims not within the 6 month requirement) (here).   Whether and how someone may file the required notification with the governing body for claims required within the 6 month time period after that 6 month period, will likely depend on the claimant and what they can prove.

An example of a potential claim to be filed within 6 months could be: a student is beat up on campus by a group of thugs when there is no supervision by the school during school hours.  He is in the hospital.  He is a minor (under 18).  His mother does not know about the claim form filing requirements until 6 months and 1 day after the incident (the form was due no later than 6 months from the date he was injured).  Can she still file the notice with the Board?  Yes, but there are hoops.

Take the same student, but he is an adult now.  Can he file?  The answer depends, but his case might be more difficult and may require a visit to court if the governing board won't accept his claim late.

In both cases the claimant must file an application with the governing body requesting they accept his claim late.  Per California Government Code 911.4, claims should be filed within 1 year of the date of the accrual of the cause of action.

If the governing body refuses to allow the claimant to file late, the claimant may petition the court for the late filing to be accepted.  However, how easily their arguments will be accepted by the courts and/or the particular governing body may depend on WHO the claimant is and their status.


The case of a minor (individual under age 18):

The time limits for presenting claims to government entities in California apply even to minors.  However, being a minor is a good excuse for filing the claim late (within 1 year of claim accrual).  If the claimant is a minor when they file the petition to the governing body to submit a late claim, the governing body is mandated to allow them to submit the claim late under the Government Code.

However, if the request to file late is filed 1 year and 1 day after the accrual of the cause of action, the governing body will likely deny the right to file late.  The claimant is then required to go to court to try to get this decision overruled.  Unfortunately, the court could refuse to accept the late claim.  As such, it is very important for the time limits to be met.

The case of an adult:

If an adult student is late, they must also file a request for a late claim to be accepted, but they will have to demonstrate one of the following (a minor could also demonstrate these but simply being a minor during the time period should be enough excuse to have the late claim accepted before the year period for submission is through):
1)  The failure to present the claim was due to mistake, inadvertence, surprise, or excusable neglect and the public entity was not prejudiced in its defense as a result
2)  Physical or mental incapacity during the entire time for presentation of the claim which caused the inability to file.
3)  Death of the claimant.
[Government Code section 911.6]

The hurdles will be bigger for the adult student.  If the governing body does not allow the claim to be filed late, they will have to prove the above to the court and hope they grant their request to file late.

There is a lot to consider in pursuing a government entity such as a school district, college, or other governmental entity and potential claimants need to be mindful of time limit requirements.

Best,
Michelle Ball
Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 
717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Email:help@edlaw4students.com 
Fax: 916-444-1209
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Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.


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