Suing State and Local Government Agencies : Filing a Complaint

Many lawsuits against government agencies fail because the complaint is not sufficient, or because procedural requirements are not followed correctly. Here are a few tips to help you draft an effective complaint.  

1. The Government Claims Act Gives Public Agencies Broad Immunity from Liability. The Government Claims Act provides that except as otherwise provided by statute public entities are not liable for an injury caused by the entity, its employees or any other person. Cal. Gov't Code §815(a). Therefore, liability of public agencies is limited and must be based on a statute, as discussed more in section 3 below. Unlike private parties, public agencies cannot be sued based on common law causes of action (i.e., causes of action based on case law) such as general negligence. 

2. Specific Immunities from Liability. In addition to identifying a statute that is a basis for liability in your case, you must consider whether there is an immunity that will prevent your case from going forward. The court will grant a challenge to the complaint called a demurrer if it is clear from the information in the complaint that an immunity applies. There are too many specific immunities to include all of them in this guide, but here are a few of the key immunities set forth in the Act:

• Immunity for discretionary actions/decisions. Cal. Gov't Code §820.2.
• Misrepresentation. Cal. Gov't Code §818.8.
• Malicious prosecution. Cal. Gov't Code §821.6.
• Health and safety inspections of property. Cal. Gov't Code §821.4.
• Adopting/enforcing laws (or failing to adopt or enforce a law). Cal. Gov't Code §818.2.
• Authorized entry onto private property. Cal. Gov't Code §821.8.
• Licensing/permitting activities (i.e. issuance, denial, revocation or suspension, or failing to take any of those actions). Cal. Gov't Code §818.4, 821.2.

Additional immunities from sources outside of the Act include:

• Emergency medical care. Cal. Busn. & Prof. Code §§2395-2398.
• Use of force in self-defense and/or justifiable homicide by police officers. Cal. Civil Code §§43, 50; Penal Code §§ 196, 197, 198.5. 
• Privileged statements. Cal. Civil Code §47.
• Immunity in connection with vaccines. Cal. Health & Safety Code §120455.
• Judicial immunity. Judges have broad immunity from civil liability when exercising judicial functions. Falls v. Superior Court (1996) 42 Cal. App. 4th 1031, 1037. They only lose their immunity if acting without any jurisdiction, or if taking actions not related to judicial functions. Johnson v. MacCoy (9th Cir. 1960) 278 F.2d 37. The enactment of the California Government Claims Act did not eliminate common law judicial immunity. Frost v. Geernaert (1988) 200 Cal. App. 3d 1104. For more information about judicial immunity see Schwing, California Affirmative Defenses, section 38:131.

There are a number of other immunities in the California Code see CEB California Government Tort Liability, Chapters 10 and 11 for a more complete discussion of governmental immunities. 

The best way to avoid these pitfalls in drafting your complaint is to use a template designed for suing a public agency, as discussed in Section 5 below. These templates are drafted based on specific statutory causes of action that are not subject to immunities.

4. Identify a Theory of Liability (Cause of Action) Based on a Statute

The Government Claims Act provides generally that a public agency is not liable for an injury caused by the entity or one of its employees "except as otherwise provided by statute." Cal. Gov't Code §815. Therefore, you must identify a theory of liability in your complaint that is based on a statute. There are statutes both within the Government Claims Act, and outside of the Act, that provide for public agency liability. A few of the key statutes providing public agency liability within the Government Claims Act are:

• Vicarious agency liability for injury caused by an employee within the scope of employment. Cal. Gov't Code §815.2(a), (however, note that an agency is not liable for actions of an employee if the employee has a statutory immunity, such as discretionary immunity). 
• Agency liability for injury caused by an act or omission of an independent contractor. Cal. Gov't Code §815.4
• Breach of a mandatory duty imposed by a statute. Cal. Gov't Code §815.6.
• Dangerous condition of public property. Cal. Gov't Code §835 (as defined by Cal. Gov't Code §830(a)).
• Injuries to a prisoner. Cal. Gov't Code §844.6

Statutes outside the Act that establish public agency liability include (but are not limited to):

• Public agency liability for injury or property damaged caused by negligent operation of a motor vehicle. Cal. Vehicle Code §17001.
• Nuisance. Cal. Civil Code §§3490-3496.
• Common carrier liability. Cal. Civil Code §2100.
• Duty to report child abuse. Cal. Penal Code  §11166(a).
• Duty of a school to control pupils. Cal. Educ. Code §44807. 
• Constitutional provisions establishing liability, such as violation of First Amendment rights, U.S. Const. Amendment 1, and Inverse Condemnation (Cal. Const. art I §19). 

Be sure to read the statute carefully and do additional research if you are unsure if a particular statute is applicable to your case.

5. Use a Complaint Template Designed for Suing a Government Agency. A lawsuit against a public agency must include certain allegations (for instance, facts showing compliance with the claim filing requirement). It must also be based on a statute that establishes liability, as discussed above.  It is possible to use standard court forms to sue a public agency, such as the complaint forms for Personal Injury, Wrongful Death or Property Damage (PLD-PI-001) and Breach of Contract (PLD-C-001). However, the best way to make sure that you have included all of the required allegations is to use a complaint template designed for suing a public agency. 

The library has several resources that include complaint templates for public agency lawsuits. Here are titles of a few suggested resources, and some of the complaint templates that can be found in those resources. You can find more information about these titles in the Resources tab of this guide. 

California Forms of Pleading and Practice. Available in print, in Lexis Advance and in the San Diego Digital Law Library. Chapter 464 includes complaint forms for:

• Injury based on tort committed by an employee within the scope of employment (including negligent operation of a motor vehicle)
• Injury or damage based on negligence of an independent contractor
• Failure to Discharge a Mandatory Duty
• Nuisance
• Dangerous Condition of Public Property (including dangerous condition of a public sidewalk)
• Injuries to a prisoner caused by negligence of an employee

California Causes of Action. Available in print, in Lexis Advance, and the San Diego Digital Law Library. Includes complaint forms for:

• Civil Rights Violation
• Harassment, Negligent Supervision, Retaliatory Termination, Wrongful Termination
• Dangerous Condition of Public Property

California Civil Practice - Torts. Available in print and in Westlaw. Chapter 31 includes complaint forms for:

• Liability for Acts of Employees or Contractors
• Failure to Discharge a Mandatory Duty
• Dangerous Condition of Public Property
• Police and Correctional Activities
• Fire Protection
• Medical/Hospital/Public Health

West's California Code Forms with Commentaries. Available in print and in Westlaw. Includes complaint forms organized by statute for:

• Dangerous Condition of Public Property/Premises Liability [Gov't Code §835]
• Failure to Abate a Nuisance [Gov't Code §815.6]
• Inverse Condemnation [Code of Civ. Proc. §1245.260]
• Sex Discrimination [Gov't Code §12940]
• Personal Injury [Gov't Code §§ 815, 910]
• Personal Injury by a Police Officer [Civil Code §1714.9]
• Civil Rights Violation/Wrongful Death [Gov't Code §845]

6. Statute of Limitations (Complaint Filing Deadline). In the case of a lawsuit for damages against a public agency that requires a claim to be filed, one of two deadlines for filing the complaint will apply:

• If the claim is rejected in writing, six months from receipt or mailing of the written rejection. Cal. Gov't Code §945.6(a)(1).
• If there is no response to the claim within 45 days, two years from the incident giving rise to the lawsuit. Cal. Gov't Code §945.6(a)(2).

7. Service of the Complaint and Summons on a Government Agency. Cal. Code of Civil Procedure §416.50 provides that "A summons may be served on a public entity by delivering a copy of the summons and the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body." Most public agencies have a website including the name and address for the City or County Clerk, Board Secretary, or President/Presiding Officer for purposes of service of process. The California Roster online can also be used to look up the names of state and local officials, but it may be a few years out of date. 

Be sure when filing and serving your complaint to include a Civil Case Cover Sheet and a Summons. 

The Summons/Complaint is typically served using personal service/personal delivery. For more information about service requirements for a Complaint and Summons, see our guide on Service of Summons and Complaint.