Court of Appeal Affirms Requirement To Exhaust Administrative Remedies Before Filing A Claim Against A Local Government Entity

The recent case of Gong v. City of Rosemead is a warning for all attorneys venturing into the arena of the Government Tort Claims Act (the “Act”) without properly preparing.  The facts in Gong are pretty egregious.  The plaintiff alleged that she was duped by a city council member into applying for a development project that she did not want to do.  The city council member then allegedly defrauded the plaintiff into loaning him $38,000 that he failed to repay.  The council member also made consistent unwanted sexual advances toward plaintiff.  When she rebuffed him, the council member refused to put her project forward and threatened to kill the plaintiff if she contacted the authorities.  The plaintiff went so far as to contact the FBI who pursued the council member and he ultimately plead guilty to charges of extortion and fraud.

Unfortunately for the plaintiff, her attorneys presumably were not well-versed in the pre-litigation claim requirements of the Act.  Before a party can file any tort claim against a government entity or government employee, it must file a claim with the entity under the express terms of the Act.  If the entity denies the claim, then the party may file a lawsuit against the entity.  If the claimant fails to file a timely claim, then no lawsuit may be filed.

What makes this case so tragic is that the plaintiff actually filed two claims pursuant to the Act.  However, equally important to filing a pre-litigation claim is what facts the claim states.  The Act requires that the facts alleged in a complaint against a public entity be consistent with the facts stated in the pre-litigation claim.  Here, while the plaintiff filed two claims against the city, she failed to state any facts relating to the council member’s alleged loan, his fraudulent representations, his sexual harassment, or his death threats.

Since the plaintiff failed to state any of these facts in her two claims, the Court of Appeal had no choice but to sustain the city’s demurrer, and the plaintiff’s lawsuit was dismissed.

The Gong case is a word to the wise for both those seeking a claim against a government entity and practitioners.  For the claimant, make sure you vet your attorney before hiring him or her or you may end up throwing away valid and valuable claims.  To the practitioner, make sure you thoroughly research the law in an area you are unfamiliar with before you take on a client.  Otherwise, you are doing your client a disservice, and opening yourself up to a malpractice claim.

If you have any questions about the Government Tort Claims Act or any possible claim against a government entity, please contact Greg Woodard at (949) 769-6602.