California Statute of Limitations - Extensions Under Statutory Law

In California, as with other states, the time period within which the plaintiff must bring their legal claim depends on the specific cause of action. For personal injury claims against private persons or entities, for example, the statute of limitations period runs for two years from the date of injury, while the period for personal injury claims against public employees or entities runs for only six months. If the applicable statute of limitations period expires before the plaintiff has filed a lawsuit, then the plaintiff will no longer be legally entitled to bring the claim – and by extension, is no longer entitled to recover damages.

Importantly, California law makes available a number of statutory exceptions that allow plaintiffs to suspend or extend – in other words, to toll – the statute of limitations period so that the plaintiff’s claim remains legally actionable. You should always consult with a qualified attorney as soon as possible after an accident or commercial disagreement so as to preserve your claims. Of course, in the event that you have waited too long and you are concerned about the continued actionability of your claim, read ahead to learn more about the exceptions to the statute of limitations rules in California. The law may have preserved your claim despite the delay.

The Plaintiff is a Minor

If the plaintiff is below 18 years of age then the statute of limitations period does not begin to run (see California Code of Civil Procedure section 352(a)).

Importantly, this exception does not apply if the minor plaintiff was injured prior to birth – the statute of limitations in such circumstances is a period of six years that begins to run on the date of birth. Nor does this exception apply to medical malpractice claims, generally, or claims against government employees and/or entities.

What does this mean? Let’s consider the application of this statute of limitations exception in a standard personal injury scenario.

Suppose that plaintiff was a 16 year old driver when involved in serious accident. The plaintiff was rear-ended by the defendant, who was speeding into an intersection and did not stop his vehicle at the red light, as plaintiff had. The plaintiff suffered serious neck injuries as a result of the collision. Unfortunately, plaintiff did not seek the consultation of a personal injury attorney until he was 19 years old – three years after the date of injury. Under normal circumstances, the plaintiff would be prevented from bringing the personal injury claim against the defendant, as the two year statute of limitations period in California for personal injury claims would have expired. Thanks to CCP section 352(a), however, the statute of limitations period did not actually begin to run until the plaintiff’s eighteenth birthday. The statute of limitations was suspended, or paused. As the plaintiff is presently only 19 years old, there is still time left to file a lawsuit against the defendant and to recover damages for the injuries he suffered.

The Defendant was Out of State for a Period of Time

California Civil Code of Procedure section 351 provides for the tolling – the suspension – of the statute of limitations for the duration that the defendant is absent from the state. To put it simply, the running of the statute of limitations "pauses" while the defendant is out of state.

Worth noting, however, is that this exception does not apply to nonresident motorists (or to motorists who are licensed to drive in California, or if the car involved in the accident at-issue was registered in California, unless the plaintiff can show that reasonable efforts were taken to locate the defendant, but the defendant could not be located).

Section 351 absentee tolling is applicable in a great many cases. Defendants who have left the state for vacation, work, or other reasons may have these absentee days counted towards tolling of the plaintiff’s statute of limitations period. Consider the following example.

Suppose that a personal injury plaintiff has a personal injury claim against defendant retail store-owner under a theory of premises liability. If, during the course of the next few years (when the statute of limitations period is still running) the defendant leaves the state of California for a vacation with his family for a month, and then perhaps takes several business trips adding up to a month, the plaintiff’s statute of limitations period will be extended for two months total.

If the defendant is engaged in actual cross-state business, however – the sale of goods and/or services – then the work travel out of state may not be counted towards tolling.

Mental Incompetence of the Plaintiff

If the plaintiff has been judged mentally incompetent at the time of the defendant’s negative conduct, then the statute of limitations period will be tolled for the length of continued mental incompetence. This mental incompetence may be due to mental illness, or may be due to more physical manifestations of mental incompetence such as a coma.

Importantly, the incompetency exception to the running of the statute of limitations does not work in situations where the mental incompetency of the plaintiff happens after the accident (or after whatever conduct of the defendant’s that gives rise to a potential legal claim).

The mental incompetency exception also does not work when applied to claims brought against government employees and/or entities.

Death of the Plaintiff or Defendant

The death of the plaintiff or defendant exceptions are governed by sections 366.1 and 366.2 of the California Civil Code of Procedure.

If the plaintiff dies before the statute of limitations runs, then the lawsuit can still be filed within the statute of limitations period. Alternatively, if there are less than six months left on the statute of limitations at the time of the plaintiff’s death, then the lawsuit may be filed within six months of the plaintiff’s death.

 

If the defendant dies before the statute of limitations runs, then the lawsuit must be filed within a year of the defendant’s death. Unlike the situation with a dead plaintiff, this requirement is not shifting – in other words, the new 1 year post-death statute of limitations is final, regardless of how long the original statute of limitations period has run. Consider the following example.

Suppose that 6 months have passed since the date of injury for a personal injury plaintiff. The plaintiff would technically have 1.5 years left on his statute of limitations. If the defendant dies, however, then the plaintiff would only be left with 1 year with which to file his lawsuit. As a result, the statute of limitations period has in fact been shortened by the defendant’s death.

Plaintiff’s Prison Sentence

Under California Civil Procedure section 352.1(a), if the plaintiff is imprisoned, the statute of limitations will be tolled either until the plaintiff is released, or for a period of two years – depending on which comes sooner. For example, if the plaintiff serves a 1 year sentence, then he will have his statute of limitations tolled for 1 year, but if the plaintiff is serving a 3 year sentence, then the statute of limitations will be tolled for a maximum of 2 years.

Plaintiff’s Military Service

Military service automatically and unequivocally tolls the statute of limitations period for as long as the plaintiff is serving in the military, and this includes persons who serve in the military as a career (during peacetime and wartime).

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Though your statute of limitations period may be influenced by one of the above exceptions, do not hesitate to seek the consultation of an experienced attorney to ensure that your legal claims are preserved.

For a free consultation with an experienced San Jose plaintiff’s attorney, call the Law Offices of Brian O Grady at (650) 318-6131 to set up your appointment today.