Go to Statute of Limitations
to Wrongful Death Claims
WRONGFUL DEATH - STATUTE OF LIMITATIONS (“SOL”)
Wrongful Death SOL: A wrongful death action generally accrues [i.e.
starts the statute of limitations clock] on the date of death (not the
act or injury causing death): "For it is only on the date of death that
a wrongful death cause of action becomes complete with all of its
elements ." [Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Kincaid
v. Kincaid (2011) 197 Cal.App.4th 75, 80-81].
Date of Death: The SOL statute cannot commence to run until the decedent’s
death. Arroyo v. Plosay (2014) 225 Cal. App. 4th 279,
289-295; Larcher v. Wanless (1976) 18 Cal.3d 646, 659. In other words, the accrual
date will not be before the date of death, but, in a small minority of
cases, the accrual date may be later than the date of death.
Types of Cases:
Personal Injury and Wrongful Death: A 2-year statute of limitations
applies to lawsuits for "assault, battery, or injury to, or for the
death of, an individual caused by the wrongful act or neglect of
another." [Code of Civil Procedure ("CCP") § 335.1]. However, there are special circumstances where
a different time limit is utilized.
Medical Malpractice Wrongful Death SOL: For example, actions for
medical malpractice by a healthcare provider are governed by the
California Code of Civil Procedure § 340.5.
Section 340.5, a provision of the Medical Injury Compensation Reform
Act of 1975 (MICRA), provides in relevant part that:
"In an action for injury or death against a health care provider
based upon…professional negligence, the time for the commencement of
action shall be three years after the date of injury or one year after
the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first."
The one-year limitation period of
section 340.5 is a codification of
the discovery rule, whereby a cause of action accrues when the
plaintiff is aware, or reasonably should be aware, of the injury. The
word "injury" herein signifies "both the negligent cause and the
damaging effect of
the alleged wrongful act." (Steketee v. Lintz, Williams & Rothberg
(1985) 38 Cal.3d 46,54.
State Government Claims: Claims against the State of California,
including against a state employee during the course of her/his job or
against a government entity, according to California Government Code
§911.2, must be submitted not later than six months after accrual for
causes of action "relating to ... injury to person or to personal
“A [government] claim against a public entity relating to a cause of
action for wrongful death must be presented no later than six months
after the accrual of the cause of action. (Government Code, § 911.2.)” DeVore
v. Department of California Highway Patrol (2013) 221 Cal. App. 4th 454. “The date of accrual of a cause of action for wrongful death is the
date of death." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404.)
[“The date of Levi's death, September 15, 2003, is the date on which
the six-month time period for commencement of the action began to run.”
Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198].
See possible other SOL exceptions at Exceptions to Statute of Limitations.
The SOL period applies to each claimant separately: The SOL period runs
separately against each CCP § 377.60 claimant. If the statute of
limitations has run, any new claimant's lawsuit suit is time-barred
[San Diego Gas & Electric Co. v. Superior Court (2007) 146
Cal.App.4th 1545, 1551-1553; Andersen v. Barton Memorial Hospital, lnc. (1985)
166 Cal.App.3d 678, 681, 684.
But, if the administrator of
decedent's estate brings a wrongful death
action and names the wrong claimants (heirs), then the administrator
amend the complaint to name the proper claimants. In this situation,
the amendment is not considered a new action, and, therefore,
"relates back" to filing of the original action. [See Mayo v. White
(1986) 178 Cal.App.3d 1083, 1091–1092]
SURVIVAL ACTIONS - STATUTE OF LIMITATIONS
Survival Claims SOL: Survival claims are subject to the applicable
statute of limitations period of the underlying cause of action. For
example, the decedent’s injury or wrongful death claims which survive
to the estate are normally governed by the CCP § 335.1 two-year
limitations period. However, if the plaintiff dies before expiration of
the applicable limitations period, an action may be commenced before
the expiration of the later of the following times:
(a) Six months after the person’s death.
(b) The limitations period that would have been applicable if the
person had not died.(CCP § 366.1.)
of Statute of Limitations specific articles on this website:
of limitations, and the court rules and cases that interpret and apply
are complicated. Even if you believe that the statute of
deadline might have passed or might be extended by an exception, do not
this article, but immediately seek consultation and legal advice from a
California lawyer to determine if any of the time-extending exceptions
to the statue of limitations apply or not to your case.
provided in this article is informational, only. The subject matter and
applicable law is evolving and/or constant state of change. No
advice is given and no attorney/client or other relationship is
intended. The information provided is from general sources, and
I cannot represent, guarantee or warrant that the information
this website is accurate, current, or is appropriate for the usage of
reader. Consult with your own legal
counsel before relying on any information on this website or this
If a loved one is deceased due to the wrongdoing of another person, business, or government, contact personal injury attorney Matthew B. Tozer.
to Wrongful Death Claims