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EXCEPTIONS TO / TOLLING / EXTENDING /
SUSPENDING  THE STATUTE OF LIMITATIONS.


What exceptions toll, extend, delay, increase, or lengthen the Statute of Limitations time deadlines in California?  Did the Statute of Limitations deadline really run, expire, or pass?  Is it too late to file a lawsuit?  This article contains hidden jewels that might revive a case where the statute of limitations may be seemingly blown. 

General Rule: The State of California imposes time deadlines to take legal action called “statute of limitations” (SOL).  If you don’t fully settle your claim or file a lawsuit within a certain time period, you forever lose your right to recovery or remedy against the wrongdoing person, business or entity if the SOL defense is asserted and proven.

The statute of limitations rules are largely cast in stone (fixed and strict application).

But rules have exceptions.  Alternatives may be available.

1. STATUTORY EXCEPTIONS:

Sections 351 through 356 of the California Code of Civil Procedure set forth circumstances that toll (suspend, delay, extend, increase and/or lengthen) the limitations period.  For example:

Defendant Absent from State: CCP Section 351

Absence of defendant from the state of California between start date and end date of the SOL generally lengthens the SOL by the amount of the length of absence out of the state. 

But this exception does not apply to various situations such as, for example:

(1) Defendants engaging in interstate commerce [See Abramson v Brownstein 897 F2d 389 (1990 9th Circuit)];

(2) Corporations and limited partnerships [See  Epstein v. Frank (1981) 125 Cal. App. 3d 111, 119 n.4 and 120];

(3) Nonresident motorists [See Bigelow v. Smik (1970) 6 Cal. App. 3d 10, 15 and Litwin v. Estate of Formela (2010) 186 Cal. App. 4th 607];

(4) Resident motorists in some circumstances [Vehicle Code Section 17460; Dovie v. Hibler (1967) 254 CA2d 673];

Tolling under CCP 351 does not apply to claims arising from motor vehicle accidents involving nonresident motorists. [Litwin v Estate of Formela (2010) 186 Cal.App.4th 607, 616–617.]

and

(5) Certain others.

Example: In O'Laskey v Sortino (1990) 224 Cal.App.3d 241, a creative investigator telephoned the potential defendant.  The investigator said that he was calling from a game show. Responding to a question, the defendant admitted that she had been out of the state for two weeks during the previous year.  That out of state excursion extended the statute of limitations by two weeks.


Minor Plaintiff / Claimant: CCP Section 352(a); Family Code Sections 6500 and 7050(e)(4).

Minority of plaintiff – Under 18 years old; The statute of limitations does not start running until either:

(1) the claimant turns age eighteen or

(2) is emancipated by court order.


But for a child injured before birth (or in the course of birth), the SOL is six years after the date of birth [CCP 340.4]. 

The minority exception and the unborn exceptions do not apply to:

1. Medical malpractice cases generally which are, instead, regulated by CCP 340.5 [Photias v. Doerfler (1996) 45 Cal. App. 4th 1014, 1018-1020].

2. Uninsured motorist cases [Insurance Code 11580.1(i)(1); Allstate Ins. Co. v. Orlando (1968) 262 Cal.App.2d 858.

3. Sexual abuse cases which are now regulated by tolling provisions of CCP 340.1.

4. Government (public entity) claims generally, but there are exceptions.


Mental Disability / Incompetence: CCP Section 352(a)

Insanity: If plaintiff was “insane” (mentally incompetent) at the time of (or because of) the tortuous wrongdoing, the statute of limitations is suspended (tolled, clock stops) for as long as the mental incompetence continues [Tzolov v. International Jet Leasing, Inc. (1991) 232 Cal.App.3d 117].

Example: In Feeley v Southern Pacific Transportation Co. (1991) 234 Cal.App.3d 649, the plaintiff was in a coma for twelve days after being knocked unconscious while on the defendant's premises. His suit, filed one year and one day after the attack, was timely because the statute was tolled while he was unconscious.

This SOL exception generallydoes not apply to Government (public entity) claims, but there are times when it may apply.

Prison: CCP Section 352.1(a)

Incarceration / imprisonment of plaintiff tolls (suspends) the statute of limitations for whichever comes first:  Either (1) until release from prison; or (2) for two years [Carlson v. Blatt (2001) 87 Cal.App.4th 646, 649-650]

This SOL exception does not generally apply to Government (public entity) claims, but there are times when it may apply.

Restitution Order: CCP Section 352.5

If a tortfeasor comes under an order of restitution as a condition of probation with respect to a specific act giving rise to his liability, then the statute of limitations time period is tolled (suspended, put on hold) during the time the order for restitution is in effect.

Death: CCP Sections 366.1 and 366.2


Plaintiff dies: If Plaintiff dies before the applicable statute of limitations period and the action survives, then the action must be commenced the later of six months after Plaintiff’s death or within the applicable statute of limitations period (CCP 366.1)

Defendant dies: If Defendant dies before the applicable statute of limitations period and the action survives, then the action must be commenced within one year after the date of death (The applicable statute of limitations period does not apply) (CCP 366.2).

State Bar Takes Over Attorney’s Law Practice: CCP Section 353.1

If the state court assumes jurisdiction over practice of plaintiff's attorney due to legal or other causes, and if a plaintiff has not yet filed a lawsuit, Code of Civil Procedure Section 353.1 extends the applicable statute of limitations by six months (6 months) from the entry of the order taking over the attorney's practice, but only if the statute of limitations had not already passed when the order was made.

War: CCP Section 354


When and while a state of war bars plaintiff's access to court, the statute of limitations period is tolled (suspended, time clock stops).

Bankruptcy: CCP Section 356


When and while the commencement or continuing of an action is stayed by injunction or statutory prohibition, for example, bankruptcy “automatic stay”, the statute of limitations period is tolled (suspended, put on hold, time clock stops). Schumacher v. Worcester (1977) 55 Cal.App.4th 376, 380 ; Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 376.)

Under federal law, the statute of limitations is the applicable statute of limitations period (including suspensions) or 30 days after termination or expiration of the bankruptcy automatic stay [11 USC 108(c)].

There may be a conflict between federal and state law.  But, arguably the two statutes can and ought to be harmonized to extend the statute of limitations period by either federal or state law, whichever is longer.

Voluntary Agreement: CCP 360.5

A limitation period also may be extended by parties’ written agreement. 

Warning/Caveat: But any other parties to a lawsuit who did not agree to extend the statute are not subject to the extension of the SOL that was agreed upon.

See also Don Johnson Productions, Inc. v Rysher Entertainment (2012) 209 CA4th 919, 928-930].


Felony Conviction: CCP 340.3(a)

Under California Code of Civil Procedure Section 340.3(a), an action for damages against a defendant arising from a felony offense may be filed within one year after the felony conviction judgment even though, for example, the two-year negligence statute of limitations has passed.

An example of this could be an automobile accident involving a felony DUI (driving under the influence of alcohol or other intoxicating substances).

Military: Statute of limitations tolled. 50 U.S.C. App. 526

Any period of military service is to be excluded when computing the statute of limitations for any action by or against a service member in a Federal, state or municipal court, board or agency (50 U.S.C. App. 526).  See the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. App. 501 et seq.).  The tolling provision is absolute, unequivocal and unlimited, even to career military persons serving in times of peace [See Conroy v. Aniskoff, 507 US 511, 514 (1993)].



2. JUDGE-MADE, JUDICIALLY CREATED LAW:

Delayed Discovery Rule. 

"Under the [delayed] discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that [his or] her injury was caused by wrongdoing, that someone has done something wrong to [him or] her" (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110).

The delayed discovery suspends (delays, extends, lengthens) the statute of limitations deadline by not starting the SOL time period until the Plaintiff / victim discovers (or by the exercise of reasonable diligence should have discovered), both:

(1) the injuries or harm; and

(2) that was caused by the wrongdoing of the defendant / perpetrator.  

See (Jolly, supra, at p. 1109).

Generally, in "ordinary tort and contract actions," the limitations period begins when the "last essential element to the cause of action" occurs. (Neel v. Magana, Olney, Levy, Cathcart and Gelfand (1971) 6 Cal.3d 176, 187), that is, when the cause of action “accrues,” even if the Plaintiff was ignorant thereof, and even if he or she did not know the identity of the wrongdoer (tortfeasor) (Id. at p. 187).

But where it would be manifestly unjust to deprive a plaintiff of a cause of action before he is aware he or she has been injured, the delay discovery rule can, in many types of cases, be applied. 

The terms "wrong," "wrongdoing" and "wrongful" are to be construed in their "lay understanding." (See Jolly, supra., at p. 1110, footnote 7).  The "discovery of facts, not their legal significance" determines the accrual of a cause of action (i.e., starting date of the statute of limitations). (Id. at p. 1113).

In sexual abuse cases, the delayed discovery rule has been codified and modified (CCP 340.1).  This article does not cover that subject in relation to the statute of limitations.  But such laws continue to be scrutinized and litigated and may change from time to time.

See related article describing Defamation and the Delayed Discovery Rule.

See related article discussing Fraud and the Delayed Discovery rule Codified

Equitable Tolling:

The statute of limitations may be equitably tolled (extended, suspended, put on hold) when under certain circumstances:

Impossible: Filing a lawsuit earlier was impossible or virtually impossible [Lewis v. Superior Court (1985) 175 Cal.App.3d 366].

Example: Plaintiff's lawyer was hit by a car and seriously injured. While he was incapacitated, the statute of limitations ran on one of his cases.  The statute of limitations was equitably tolled per Civil Code 3531 which states: "The law never requires impossibilities." Lewis v. Superior Court (1985) 175 CA3d 366, 380.

Catastrophic fire or earthquake could also invoke the impossibility grounds (Lewis, supra, at page 378).

Interference: The defendant’s conduct contributed to the plaintiff’s delay in filing suit. [Bollinger v National Fire Ins. Co. (1944) 25 C2d 399, 411.

Alternative Second Claim Tolling Rule. The limitations period is extended when a person has several legal remedies and, “reasonably and in good faith,” “timely” (within the SOL) pursues one of them but believing the second “similar” claim is unnecessary or can’t be filed until the first remedy is pursued; and the defendant is not prejudiced because the first claim alerts the defendant to begin investigating the facts which form the basis for the second factually similar claim.  Collier v. City of Pasadena (1983) 142 Cal. App. 3d 917, 924-926; Myers v. County of Orange (1970) 6 CA3d 626, 634.


3. INSURANCE COMPANY DISCLOSURE:

The statute of limitations is delayed if the insurance company fails to disclose and notify the plaintiff / claimant of the statute of limitations if he or she is not represented by an attorney at law. See:

Partial Payments: Insurance Code Section 11583 (applies when insurance company made partial payments);

Fraud / Misrepresetation: Case law based on estoppel where insurance company misled the claimant to not file a lawsuit until after the statute of limitations had run (see Vu v. Prudential Prop. & Cas. Ins. Co. (2001) 26 Cal.4th 1142, 1152); and

Regulations: Estoppel based on insurance law regulations which require warning of applicable time limits (see Gould & Bowers v. Associated Int'l Ins. Co. (1999) 71 Cal.App.4th 1260, 1263).


4. OTHER ALTERNATIVES:

Other Remedies:  If a cause of action is lost due to the statute of limitations deadline passing, another alternative cause of action with longer limitations may be available. 

For example, in some cases, a federal claim may have a longer statute of limitations than a similar state law claim (e.g. civil rights claims against a government entity).  Or one state cause of action have a longer statute of limitations than another state cause of action (e.g. breach of written contract (4 year statute) has a longer SOL than fraud (3 year statute).

Other States: Alternative (other) states besides California with longer statute of limitations time periods for the same cause of action.  See Ferens v. John Deer Co. 110 S.Ct. 1274 (1990). 

Many states have statutes of limitation longer than in California.  A California time-barred claim might not be time-barred in another state which has a longer statute of limitations than California. 

Certain types of cases allow filing a lawsuit where the accident occurred or where the defendant resides or does business.  So if the injury occurred in California with, let’s say, a 2-year statute of limitations, but the defendant corporation did business in the state of Maine (with a 6 year statute of limitations), in some types of cases and under certain circumstances, more than two years after the injury, you could file a lawsuit in a Maine court and not violate the statute of limitations.


4. NUMEROUS OTHER EXCEPTIONS: 

This article only touches on and summarizes common exceptions to the statute of limitations (“SOL”).  Other exceptions and limitations to exceptions exist.


CAVEATS / WARNINGS:

SOL laws are complicated: Statutes of limitations, and the court rules and cases that interpret and apply them, are complicated.  Even if you believe that the statute of limitation deadline might have passed or might be extended by an exception, do not rely on this article, but immediately seek consultation and legal advice from a lawyer to determine if any of the time-extending exceptions or rules to the statue of limitations apply or not to your case.

SOL exceptions have limitations.  Also, sometimes some exceptions don’t apply or apply differently to certain types of cases.  (For example: government claims, medical malpractice claims, and uninsured motorist claims).  This article did not mention all limitations but gives some examples of some limitations in certain contexts.  For example, this article may have stated that one exception did not apply generally to a government claim.  But another exception listed in this article might also not generally apply to government claim, yet this article may not have mentioned that fact.

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change.  No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is urged, advised, and recommended that readers of this information consult with their own legal counsel before relying on any information on this website or this article.


Copyright 2011
By MB Tozer Esq.

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