In California and most other states, a state, county or city government can be liable for damages when an employee, agent or Board Member of the government commits a Tort, like negligence. When the damages are less than $10,000 a claimant can use the County Superior Court’s Small Claims Division to get paid. A person can represent themselves in small claims court and sue the government, either city , county or state by jumping through a couple of hoops. Here are some basic attorney tips to get you started on the right path if you have a government claim.
1. Government Claims Form Must Be Filed First; Short Limitations Period.
You cannot start a civil claim for damages against a California City or County, or the State, in the small claims court. You must start by making a claim in writing directly to the government agency first.
There is a procedure that must be followed by a claimant before they can sue in court and be a plaintiff. Government Tort Claim procedure is laid out in California Government Code sections 810-996.6.
Before a claimant can sue a California city or county government in small claims court they must comply with the “Government Claims Statute” of Gov. Code sections 810 – 996.6. These statutes allow the government to review a civil claim prior to court action, and gives the government agency the right to accept, settle or reject the claim prior to court action.
A potential plaintiff wanting to sue in small claims court must first get a rejection notice of their claim after filling the government claim form to satisfy this “Government Claims Statute”. More Info…
Once a government claim form is properly delivered and rejected, the clock starts on a short statute of limitations period for the plaintiff to file a civil claim in a small claims or other court. For most tort claims like negligence, the statute of limitations period may as short as six months or less after a formal Rejection of Claim Notice is sent out by the government to the claimant.
If a court case is not filed within that limitations period, the claim will be lost by operation of law. Do your own research on the limitations period for your claim, or contact a licensed attorney for help to figure it out.
When you file your small claims “Claim and Order” form to start a small claim case against the government, make sure you state on the claim form to the court that you have satisfied the Government Claims Statute. A plaintiff should also attach a copy of the rejection letter from the government agency to the small claims “Claim and Order” form, so make sure the judge does not get stuck on that issue.
More info on filing a Government Claim from Sacramento County Law Library
2. Use the Freedom of Information Act to Get Evidence and Documents Like Incident Reports.
There is a great free tool for getting public record information that will help a small claims court case, such as incident reports. It is called the Freedom of Information Act, or “FOIA”.
Getting public record documents is generally easy in California using the FOIA. The forms for such a request are free, and using them is free. There may be copying charges for the production of documents, but there is no fee for the form or request. The response time is generally required within 10 days.
If you need incident reports, or meeting notes, or copies of government policies, a FIOA Letter is a great way to make a first request.
3. Make sure your damages are well documented.
If you want to win in small claims court against a government agency or employee, you must have well documented damages at the time of trial. A small claims court judge will not award speculative damages, or calculate the damages for you.
Receipts, bills, pictures of damages, and estimates for repairs are all good evidence of damages. Calendars that list dates of pain and suffering, and physical evidence like a damaged piece of property are also common types of evidence to prove up damages.
Expert witnesses, such as doctors, can help in some cases to prove damages in personal injury cases.
4. Make Sure Your Theory of Liability is Clear.
You will have to explain to the judge exactly why the city or county is liable for your damages. This often means establishing that an employee did something wrong first, and then secondly, proving that the person was in fact an employee.
If the cause of the damages was an employee’s negligence, a plaintiff will have to prove the negligence and the fact that the employee was acting withing the “course and scope” of their employment at the time of the negligence.
Check the California Civil Jury Instructions to find the required elements to prove liability on most common causes of action such as negligence or breach of contract.
5. Understand that the Burden of Proof is on the Plaintiff.
A plaintiff suing the city or county in small claims court is not going to get the benefit of the doubt on any common issue. The law states that a plaintiff is small claims court has the burden of proof, and you can expect a small claims judge would be very hesitant to find a city or county liable for damages in a short court trial.
The Burden of Proof that plaintiff must meet in most California civil small claims court cases is “more likely than not”, which is not as tough to meet as the criminal standard of proof of “beyond a reasonable doubt”.
6. Prepare for Two Trials Because Defendants in Small Claims Have a Right to Trial De Novo.
Defendants in California Small Claims court cases who are unhappy with the outcome in a small claims court case can request a new, second trial called a “Trial De Novo (See Judicial Council Form SC-140).” As a plaintiff suing a government entity, you must expect that if the county or city loses, they will request that second trial. By expecting a second trial, and preparing for it with well documented damages, a crafty plaintiff can actually get their legitimate damages paid through a small claims court action.
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