Legal Question in Business Law in California

You filed a lawsuit. Whoop-ti-do. Did you first present a claim to the city and have it rejected? If not, you lose. Did you ever consult an attorney?

In most cases, the Government Code requires a presentation of a claim against a governmental entity before a lawsuit is filed. This is a vestige of governmental immunity (the king can do no wrong). The law is codified in Part 3 of the Government Code, entitled "Claims Against Public Entities" and begins with Section 900 and runs for about 50 pages of fine print. The law used to be called the "Tort Claims Act" but several years ago the California Supreme Court decided that the law should be renamed the "Government Claims Act" because, in effect, it applied to most contract-based lawsuits as well.

Code of Civil Procedure section 583.210(a) requires that the summons and complaint must be served upon a defendant within three years after the complaint is filed. It is the proof of service which must be filed within 60 days after the defendant is served. CCP 583.210(b).

A first amended complaint may be filed and served without leave of court per Code of Civil Procedure section 472, any time before the defendant files its answer.

You must comply with the applicable provisions of the Government Claims Act or your lawsuit will go nowhere.

I respectfully disagree with Mr. Whipple, in part.

1. If your case is a fast track case, which it most likely is, then it is subject to the Trial Court Delay Reduction Act. Under this act, the Judicial Council has enacted a Rule of Court that requires service of process within 60 days of filing. "Delay reduction rules shall not require shorter time periods than as follows: (a) Service of the complaint within 60 days after filing." (Gov't Code, sect. 68616, subd. (a).) The rule of court dovetails with this Government Code section, and requires service within 60 days. "The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. " (Cal. Rules of Court, rule 3.110(b).)

2. The answer to your second question is provided in my answer to your first question. It is not a statute that governs the time for service, but rather a statewide Rule of Court. The California Rules of Court have the same effect and force as statutes, as long as they do not conflict with statutes passed by the Legislature.

3. If you haven't served the defendant, you can file an amended complaint at any time until the court dismisses your lawsuit for failure to comply with the rules set forth in my answer to your first question. If you have served the defendant, you may file an amended complaint at any time before the defendant answers. If the defendant responds by demurring, you may file an amended complaint, once, without leave of court, up to the eve of the hearing on the demurrer.

4. If your amendment adds a new defendant, you must serve the amendment within 30 days. "When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint." (Cal. Rules of Court, rule 3.110(b).) Otherwise, you would be under the original 60 day rule.

5. Again, this is governed by the Rules of Court, which the judges expect you to know and be just as familiar with as a licensed attorney. You don't get any breaks for representing yourself, and the judge will not give you legal advice to help you along.