Yet another notice-of-claim case. Its unfortunate that these still happen.
Plaintiff’s notice of claim against Pinal County was signed by Plaintiff’s lawyer. The county denied it; Plaintiff filed suit. The county moved to dismiss because the statute requires that the notice be “executed by the person [bringing the claim] under penalties of perjury.” The trial court denied the motion but ordered Plaintiff to comply with the statute, which it then did. The county filed a special action anyway.
The Court of Appeals accepts it and grants relief. A mere signature, even by an attorney, is not execution under penalty of perjury. It does not constitute “substantial compliance”; those cases involved notice — the government had actual notice even though the notice was addressed to the wrong bureaucrat, for example — and, anyway, the idea of substantial compliance has “effectively been superseded by more recent decisions requiring strict compliance.”
What if the lawyer signs under penalty of perjury? The court raises the issue even though the parties didn’t — and for that reason declines to answer it. One assumes that there was a point to the footnote other than allowing the court to pretend to superior intellect; it would be interesting to know what the court imagines that was.
Plaintiff also argued that the county was estopped because its denial of the claim didn’t specifically mention the signature issue. “We assume, without deciding, that it is possible for a county to waive noncompliance . . . based on its prelitigation conduct” but “courts are not inclined to find estoppel based on government conduct.” Finding estoppel would shift the burden of compliance from the claimant to the government, which is — citing a passage we cited from Yahweh — “not duty-bound to assist claimants with statutory compliance.”
“[W]ith so many notice-of-claim cases on the books now, if you have to argue waiver then you made a mistake. Trying to cut corners on this statute is the sort of thing you could end up telling your carrier about some day.” That’s not the court — that’s us, four years ago.
(Opinion: Pinal County v. Fuller)