The “Statute of Limitations” in a California Personal Injury Case

The “statute of limitations” is the amount of time in which someone can bring a lawsuit. It is also known as the “limitations period.” A plaintiff who does not file suit within that time generally loses the legal right to recover damages.

The statute of limitations in a California personal injury case varies by the nature of the claim. It generally starts to run when the plaintiff knows -- or, in the exercise of reasonable diligence, should have known -- of the injury. [1]

Common California limitations periods include: 

Injury type

CA Limitations period

Personal injury

2 years

Property damage / trespass

3 years

Wrongful death

2 years

Wrongful birth

6 years

Defamation

1 year

False imprisonment

2 years

Fraud

3 years*

Medical malpractice

1 year*

Legal malpractice

1 year*

Veterinary malpractice

1 year

Asbestos exposure

1 year*

Breach of oral contract

2 years

Breach of written contract

4 years

Felony victim

1 year**

Victim of serious felony

10 years**

 

*from discovery.

**from conviction.

To help you better understand “statute of limitations,” our California personal injury lawyers discuss the following, below:

man with briefcase running up steps to courthouse

1. What is a statute of limitations?

A statute of limitations is a deadline by which a lawsuit must be filed. Once the statute of limitations has run, a plaintiff can no longer sue for damages or other relief.

The statute of limitations varies depending on the legal theory for the lawsuit. There may be more than one type of theory on which recovery can be based.

Thus even when the statute of limitations on one theory has run, there may be another on which a claim can be brought.

Example: Jack hires Kevin to paint his house. Jack and Kevin sign a written contract. The contract provides that each party will take all reasonable steps to ensure the safety of the other.
But Jack's deck is rotting. While Kevin's ladder is on it, the deck collapses. Kevin suffers a head injury and makes a claim against Jack's homeowner's insurer for his medical bills and pain and suffering. The insurer drags out the negotiations and Kevin misses the two-year deadline to sue for negligence in California.
However, Kevin may still be able to sue Jack for breach of a written contract, which has a four-year statute of limitations.

2. How long does someone have to sue in a California personal injury case?

The general statute of limitations in a California personal injury case is two years from the date of the injury.[2]

But, as discussed below, certain types of cases have different deadlines,

In addition, in some cases the statute of limitations might be “tolled” (paused). Or it might be extended in cases of “delayed discovery.

2.1. What is “delayed discovery”?

California's “delayed-discovery rule” provides for a longer statute of limitations in some cases. It applies when the plaintiff:

  • Did not know of facts that would have caused a reasonable person to suspect that he or she had suffered harm that was caused by someone's wrongful conduct; or
  • A reasonable and diligent investigation would not have disclosed that a harmful product or situation contributed to the plaintiff's harm.[3]

In cases of “delayed discovery,” a lawsuit may be filed as late as one year after the injury was (or should have been) discovered.

2.2. “Tolling” of the statute of limitations

Sometimes the statute of limitations is suspended or does not begin running for a certain period of time. This is known as “tolling.” For instance, the statute of limitations may be tolled when the defendant is:

  • Under the age of 18, 
  • Out of the state,
  • In prison, or 
  • Legally insane.

Once the condition leading to tolling has ended, the statute of limitations begins to run or resumes.

Cases involving tolling can be quite complicated. It is highly recommended that people consult with an experienced California injury lawyer to determine whether they can still sue.

mother hugging her sick young daughter

2.3. Special cases

Some types of personal injury cases have a different statute of limitations under California law.

These include (but are not limited to):

2.3.1. Personal injury claims by minors under age 18

In California, a minor (someone under 18) lacks the legal capacity to make a decision. So when someone under 18 is injured in California, the statute of limitations is generally tolled during the period of his or her minority.[4]

However, certain types of claims are exceptions.

For instance, medical malpractice claims by a minor must be commenced within the later of:

  • Three years from the date of the alleged wrongful act, or
  • If the minor is under six years old at the time of injury, prior to his eighth birthday.

And an action by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth.[6]

2.3.2. Professional negligence (malpractice) cases

Malpractice claims have some of the shortest statutes of limitations in California.

Generally speaking, a California malpractice claim must be filed within one year of the date on which the injury was, or should have been, discovered.[7]

In addition, there is usually an absolute outside date by which a California malpractice lawsuit must be filed.

For instance, a medical malpractice may not be filed more than three years from the date of the injury.[8]

But in some cases – such as veterinary malpractice – the one-year statute of limitations starts running on the actual date of the injury.[9]

People contemplating an action for professional negligence are advised to speak to an experienced California malpractice lawyer as soon as possible to avoid losing their right to sue.

2.3.3. Claims by crime victims in California

In California, the victim of a felony has the right to sue a convicted criminal for damages.

But the victim does not necessarily have to sue within the two-year limitations period for a personal injury.

For a serious felony offense -- such as rape, kidnapping, murder or attempted murder -- the statute of limitations is 10 years from the date on which the defendant is discharged from parole.[10]

For less serious California felonies, victims have one year after judgment on the defendant is pronounced.[11]

2.3.4. Mesothelioma and other asbestos claims

Some large class-action type medical claims have longer than usual statutes of limitations in California. Mesothelioma and other claims based on exposure to asbestos must be commenced by the later of:

  • One year from the date on which the plaintiff first suffered a disability, or
  • One year after the date on which the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure.[12]

2.3.5. Dalkon Shield claims

Claims brought by, or on behalf of, a Dalkon Shield victim must be brought within 15 years of the date on which the victim's injury occurred, except that the statute is tolled starting August 21, 1985.[13]

2.3.6. Claims against a government agency

Claims against a government agency or employee must generally be commenced within six months of the injury.[14]

2.3.7. Actions to recover personal property

Lawsuits based on the recovery or conversion of personal property left at a hotel, hospital, or similar temporary lodging must be commenced within 90 days from when the owner of such personal property leaves the facility.

3. Why is there a statute of limitations?

Statutes of limitations exist out of a sense of fundamental fairness. Memories fade, evidence is inadvertently destroyed, witnesses move away.

A limitations period encourages plaintiffs to diligently pursue their claims and protects people from having to defend “stale” claims.[16]

Wondering if you can sue in California? Call us…

male receptionist

The running of the statute of limitations is one of the most frequent defenses to personal injury lawsuits. An experienced California injury lawyer knows how to preserve your rights.

If you are the victim of someone else's negligence or another wrongful act, we invite you to contact us for a free consultation.

Our California personal injury attorneys can help you determine whether you are still able to sue another party for your damages.

Call us at (855) 396-0370 to discuss your case with a lawyer.

But don't delay. The statute of limitations may be running on your claim.

Legal references:

  1. See, e.g., California Code of Civil Procedure (CCP) § 338 [fraud / property damage]; CCP §337 [breach of written contract]; CCP § 339 [breach of oral contract]; CCP §340(c) [defamation / false imprisonment].
  2. California Code of Civil Procedure §335.1.
  3. California Civil Jury Instructions (CACI) 455.
  4. CCP § 352(a)
  5. CCP § 340.5.
  6. CCP § 340.4.
  7. See, e.g., CCP § 340.6.
  8. Code of Civil Procedure 340.5, end note 5.
  9. CCP § 340(c), endnote 1.
  10. CCP § 340.3(b)(1).
  11. CCP 340.3. (a).
  12. CCP §340.2(a).
  13. The date on which the A.H. Robins Company filed for Chapter 11 Reorganization in Richmond, Virginia. See CCP §340.7
  14. See e.g., CCP § 341.
  15. CCP §341a.
  16. See, e.g., Jolly v. Eli Lilly (1988) 44 Cal.3d 1103.

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