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Statute of Limitations

July 19, 2010

By Barbara Haubrich-Hass, ACP/CAS

A. Pre-Litigation:

What are they?

A statute of limitations, often considered by attorneys as one of the most important dates to track in a civil lawsuit, is the time in which a lawsuit must be commenced by the injured party or thereafter be barred from making the claim. Statutes of limitations are enacted by the legislature. “Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.” [CCP § 312]. A court cannot extend the time period unless the statute provides such authority, such as in a court’s authority to approve the filing of a late Claim against a public entity. Depending upon the statute, the parties themselves may either shorten or extend the prescribed time period by agreement, such as a provision in a contract [CCP § 360.5].

A statute of limitations has nothing to do with the merits of the plaintiff’s case. It is merely concerned with the passage of time, and is designed to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become obscure through the passage of time.

Why are they important?

It is a fatal error to have an action filed after the statute of limitations has elapsed. If a plaintiff files a lawsuit after a statute of limitations period has elapsed, this error will be a defense asserted by a defendant to defeat the action. The defendant must plead this defense, however, either through the filing of a Demurrer or as an affirmative defense in defendant’s Answer to plaintiff’s Complaint [CCP § 430.10]. If the defendant does not plead this defense, the defendant is regarded as having waived this defense and will not be permitted to use it in any subsequent proceedings [CCP § 430.80].

Which statute controls a case?

When determining which statute of limitations will control a particular civil action, you must first make yourself familiar with the facts or your particular case. As you make yourself familiar with the facts, you will determine which cause, or causes, of action you intend to pursue. The cause of action will dictate which statute of limitations will apply. For example, an action for personal injury, based on negligence, against a non-public entity, is subject to a two (2) year statute of limitations. [C.C.P. § 335.1]. However, an action for fraud is subject to a three (3) year statute of limitation. [C.C.P. § 338]. There are also a number of statutes of limitation that accrue not from the date of incident or injury, but from a date that the plaintiff knew, or should have known, the cause of action to exist. This is accrual date for actions such as fraud or medical malpractice.

When does a statute begin to run?

In almost all cases, unless there is some special circumstance, the statute of limitations begins to run from the date of the occurrence that caused the injury. This is referred to as the date on which the cause of action accrued. This is not always the case, however, so it is important to check the statute of limitations for every matter so that the correct date is calendared. Some cases may have more than one type of statute of limitation cut-off date, so it is very important at the time a matter is accepted by the attorney to closely evaluate the matter to determine the correct statute that applies to the matter. ALWAYS select the most conservative date so that a statute of limitation does not elapse.

Can a statute be tolled?

Various events or circumstances can toll a statute of limitations. It can be tolled when one of the parties is under a legal disability, a lack of legal capacity to do an act, at the time the cause of action accrues. A child or a person with a mental illness is regarded as being incapable of initiating a legal action on her own behalf. Therefore, the time limit will be tolled until some fixed time after the disability has been removed. For example, once a child reaches the age of majority, the counting of time will be resumed. A personal disability that postpones the operation of the statute against an individual may be asserted only by that individual. If a party is under more than one disability, the statute of limitations does not begin to run until all the disabilities are removed. Once the statute begins to run, it will not be suspended by the subsequent disability of any of the parties unless specified by statute.

What is the paralegal’s role?

It is the responsibility of the attorney to determine the appropriate statute of limitations for each matter to ensure that these dates are not missed. A paralegal, however, has the knowledge and expertise to review the documents in a matter to discuss with the attorney the applicable statute of limitation. Some attorneys will have the paralegal track the statute of limitations. If this is the case, it is important for the paralegal to have more than one way to track this very important date. For the statutes that I track, I have two systems, and sometimes utilize three. First, the firm I work for has a statute tracking system in the case management program we utilize. It will run a report to let me know the upcoming statutes. Second, computers go down, so I utilize the old fashioned rolodex card system with the name of the case and the statute on a card. Third, sometimes a case may have something unique, so I will give myself a task in Outlook well ahead of the deadline as a constant pop-up reminder not to miss this date.

B. Post Litigation:

What are they?

When you think of the topic of “statute of limitations”, it is easy to only discuss the statutes that apply to the commencement of an action. There are, however, statutes that are very important to track that take effect as soon as an action is commenced or a judgment entered. These statutes include: 2 year; 3 year; 5 year; and 10 year. Two important reminders on tracking these dates:

a) The 2, 3 and 5 year statutes are triggered by the filing of the complaint, not the summons. This is a common mistake and can be a fatal mistake!

b) The 10 year statute is triggered from the entry of the judgment, not the date the judgment is filed with the court.

The diagram below illustrates these statutes with a brief explanation of each:

Commencement of Civil Action

C.C.P. § 411.10:

A civil action is commenced by filing a Complaint with the court.

↓

2 Year Statute of Limitations

C.C.P. § 583.420:

The court may dismiss an action for delay in prosecution if the service of the

Summons and Complaint is not made within 2 years after the action is commenced against a defendant.

↓

3 Year Statute of Limitations

C.C.P. § 583.210:

The Summons and Complaint shall be served upon a defendant

within 3 years after the action is commenced against the defendant.

↓

5 Year Statute of Limitations

C.C.P. § 583.310:

An action shall be brought to trial within 5 years after the

action is commenced against a defendant.

↓

10 Year Statute of Limitations

C.C.P. § 683.020:

A judgment may not be enforced after 10 years from the date

of entry of a money judgment or a judgment for possession or sale of property.

Therefore, be sure to renew the judgment prior to the 10 year expiration.

What is the paralegal’s role?

Once a civil action is commenced, or a judgment entered, the statute is triggered. A paralegal does not need to depend on the attorney to calculate these cut-offs. They are simply trigger dates that can be calculated. Therefore, it is important that the paralegal track these dates automatically once the date is triggered.

As the old adage goes, “one must know one’s limitations”. This is so true on the subject of statute of limitations. Always remember that all civil rules, procedures, and statutes are subject to change. Be sure to verify the statute of limitation that applies to your case to ensure proper calendaring of these very important dates!

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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this e-zine/article may be linked.