Skip to Content

The Rules for a California Personal Injury Claim and Lawsuit

Personal Injury attorney Daniel Horowitz on television screen during interview

The Rules for a California Personal Injury Claim and Lawsuit

Who Is At Fault?

First, who is at fault? In a car accident the police report will often assign blame but you cannot 100% rely on the report alone. A good personal injury lawyer will separately evaluate blame or fault. Blame can also be spread around. Was the roadway poorly designed? Were speed limits as posted, too high? Was there a tree that city planted that blocked your view? If this was a multiple car collision were multiple people at fault? With motorcycle accidents, sudden (even if corrected) swerves by cars can force a motorcycle to make an emergency evasive move and cause a crash. Fault analysis and documentation of fault by a proper investigation, is a critical job for a car accident or any personal injury attorney.

Remember also that laws are often vague. Violating the speed limit is a crime but it is not always the cause of an accident. Running a stop sign is a crime but again, there has to be a connection between that violation and the accident happening. Rules exist but applying the rules is not always black and white.

Timing Deadlines

All accident and personal injury cases have time limits. These are landmines because if you miss the time limit you might lose the right to ever collect money for your losses.

Disclaimer: We are not your lawyer and this is not legal advice. Hire an attorney if you have a real legal issue.

As the above disclaimer and warning make clear, the rules for notice, timing, location are fraught with landmines and each case requires an expert legal review to ensure that you are not blowing your chance to file a personal injury lawsuit or personal injury claim in California.

What is a Personal Injury

Personal injury includes every type of harm caused to your body. It can arise from a car accident, sexual abuse, a deliberately assault or battery, bad food, a cracked sidewalk, a dog bit ... anything where the other side fell below a reasonable standard of conduct and that caused you to get hurt.  You can't sue for every type of personal injury.  There are cases that discuss what types of injuries get compensation.  For example, being personally insulted almost never justifies a recovery.  But what if a racial slur is used?

Who Can Sue?

There are rules. Of course, the person injured can sue. But that is just the start of the analysis. If you hear about a loved one getting hurt can you sue? If you see a loved one get hurt can you sue even if you are unharmed? If you have a car accident but don’t have insurance can you sue for your broken arm or any personal injury? If you are married can you sue for loss of consortium? What if you live together? Are engaged?

What is the Statute of Limitations?

Most car accident cases and other injury cases (but not sexual abuse related cases), have a two year statute of limitations. But this will vary if you were a minor (under 18) when it happened. If the person causing the injury leaves the state, that can change the rule.  If you don't file in those two years, you lose your right to file, EVER.  EXCEPT when that rule does not apply or does not stricly apply.  (This is why you need a lawyer for this type of analysis.)

The basic rule in California is the 2 years to file the lawsuit rule. But there are rules about how you count the time to file your lawsuit. When counting the days to determine when the Statute of Limitation runs (that’s what the time limit is called), you do not count the day of the accident or incident. You start with the next day. (This is in Code of Civil Procedure section 12.) If the last day falls on a court holiday, you have until the next day to file. (See Code of Civil Procedure section 12a). But be careful because the word “court holiday” means just that. Not any holiday, a court is closed holiday. Weekends are court holidays.

Certain federal rights to file are tied state statutes of limitation. So a federal civil rights action is generally considered to be governed by the California 2 year statute of limitations.

The Government Gets Special Treatment (6 Month Notice Rule)

 What is a governmental agency? Is it a city, state, a county? What about a county hospital? If you have a car accident but the posted speed limit on the road was too high (and contributed to the accident) do you sue the State? City? Some Agency? Again, there are many questions and an experienced lawyer will know the answer. But there are time limits for giving notice to governmental entities and these are short.

The basic but not absolute definition of a “public entity” or “governmental entity” are the State of California and its agencies, a county, local government agencies and departments and government employees. This would include public schools but generally not private schools (but what if a public school student due to an IEP is sent to a private school at public expense?), public hospitals, public transportation and police if you want to sue under a state statute. (See: Government Code section § 900, et seq.)

There are exceptions to the filing / notice rule but these are best ignored in the sense that you should give notice when possible and invoke the exception only if you are late in giving notice. Government Code section 905 has the list of the exceptions but remember that this list doesn’t stop other exceptions from separately existing. Minors can often bring late claims, sexual abuse claims may have separate rules as well. Finally, some laws have their own “give notice” rules and these apply and not the general section 900 set of rules. A good example of this are employment related claims under the California Fair Employment and Housing Act (FEHA) But again, make the claim even though you don’t have to. You lose nothing.

The timing of the claim is strict. You have six months to file starting from when your right to sue “accrues”. Usually the accrual date is the same as the date the statute of limitations starts ticking. See Government Code section 911.2. The day you put the notice in the mail is the day you have technically “filed” your claim (Government Code section 915.2) but do not just put it in the mail. Get a receipt showing the actual day of mailing.

Any claim against a public entity for personal injury, death or for damage to personal property must be presented to the public entity within six months of the “accrual of the cause of action.” (Gov. Code, § 911.2.) Your claim is deemed presented when it is mailed. (Gov. Code, § 915.2.)

Accrual of cause of action refers to the date on which the statute of limitations would begin to run if there were no claim requirement. Generally, this date will be the date of the injury. (Gov. Code, § 901.)

After presentation of the claim, the public entity has 45 days to either accept or reject the claim. If it does not act within the 45 days, then the claim is deemed rejected. After rejection of your claim, you have six months to file your complaint.

Where do you file a Complaint?

Size of Case

1. If the claim is under $ 5,000 you can file in Small Claims Court.
2. If the case is between $ 5,000 to $ 25,000 you file a limited case in Superior Court.
3. All other state cases are filed in the Superior Court.


Courts in California are divided between counties, and sometimes within counties there are different courthouses. You generally file where the accident happened or where the other party lives or where the corporation keeps its main office.

Do You Need a Personal Injury Lawyer?

These are just some of the ins and outs of a California injury claim.  Do it yourself may work for small claims but generally any serious accident requires the experienced hand of a top personal injury attorney.  Our offices are located in Lafayette, California (Contra Costa County).  We prefer close personal contact with our clients.  We use an office with experienced personal injury attorneys and staff.  We do not use outside entities or 1-800 operators.   There is never any legal fee charged until you actually recover in your case.   Call us if you need assistance.