Written by Daniel P. Barer*
In the 2016 superhero movie "Doctor Strange," wizards do battle in a "Mirror Dimension." This dimension contains buildings and landmarks that look like the ones in our world. But our world's laws do not apply in the same way, and each seemingly familiar edifice is actually different. Attorneys who sue and defend governmental entities (cities, counties, school districts, agencies, etc.) in California know that such litigation takes place in its own mirror dimension. The substantive and procedural rules governing suits against public entities resemble the statutory and common law rules that apply when private defendants are sued. But that resemblance is an illusion — one that can be treacherous to the unwary.
As an attorney who has represented governmental entities in tort litigation in the trial and appellate courts for over 30 years, I can attest to the importance of knowing the difference between the laws that rule in the dimension of ordinary litigation and the unique web of statutory and case law that governs the mirror dimension of public entity litigation. Cataloging all of the differences is beyond the scope of this article. Books could be written about them — and have. (See, e.g., Cal. Government Tort Liability Practice (CEB 2022).) But to provide a taste of what the attorney representing (or suing) governmental entities deals with on a daily basis, here are some key differences in the mirror dimension.
The California statutes most crucial to tort and contractual litigation against governmental entities is the Government Claims Act, Government Code section 810 et seq. The Act used to be called the Tort Claims Act, and many judges and attorneys still call it that. But in City of Stockton v. Superior Court (2007) 42 Cal.4th 730, the Supreme Court held that the Act applies to breach of contract claims, and adopted the practice of referring to it by the broader name. In 2012, the Legislature amended section 810 to specify that title 1, division 3.6 of the Government Code may be referred to as the Government Claims Act. The Act provision most crucial to the demarcation of the mirror dimension's borders is section 815.
Section 815(a) prescribes that, "Except as otherwise provided by statute, [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."...
