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In California, the discovery rule tolls, or delays, the statute of limitations for personal injury cases until the victim reasonably should have known that he or she was hurt. This can allow victims more time to file their lawsuits. It prevents situations where victims had no way of knowing they were injured until it was too late.
What is the California statute of limitations for personal injury claims?
As a general rule, the statute of limitations for personal injury claims is 2 years in California. This means that the victim has 2 years from the date of injury to file a lawsuit. Victims who file their cause of action after this period of time has expired will likely see their claim dismissed when the defendant raises the statute as an affirmative defense.
This 2-year time period to file a claim applies to the following causes of action:
- car accidents,
- dog bites,
- wrongful death claims, and
- other personal injury claims based in negligence.
Certain types of personal injury lawsuits, known as torts, have longer or shorter time limits. For example, defamation has a 1-year statute of limitation in California.1 Lawsuits for property damage caused by trespassing have a statute of limitations of 3 years.2
Other statutes of limitations rely on the discovery rule. For example, medical malpractice cases in California have to be brought before 1 year of the discovery of the injuries, or within 3 years of the date of the injury, whichever comes first.3
How does the discovery rule work?
The discovery rule tolls, or delays the start of, the statute of limitations until the victim could reasonably have discovered his or her injuries. It is sometimes called the delayed discovery rule. Once the victim discovers their injury, or once they should have discovered it, then the applicable statute of limitations begins to run.
Under California law, to invoke the discovery rule, the plaintiff has the burden of proving that either:
- he or she did not discover, and did not know of facts that would have led a reasonable person to suspect, that he or she had suffered harm because of someone else’s wrongful act, or
- he or she did not discover, and an investigation of reasonable diligence would not have disclosed, that the specific factual basis for the lawsuit contributed to the victim’s harm.4
Victims “discover” their injury when they suspect that someone else has done something wrong to them. They reasonably should have discovered their injury when they have a reason to at least suspect that they have a case.5 Both of these focus on the victim’s awareness of their own injury. According to the California Court of Appeals, even if members of the public suspect that the victim was hurt, that does not keep the discovery rule from tolling the statute of limitations.6
If the plaintiff can prove either of these elements, then the court will delay the starting date of the statute of limitations. The new starting date is when the victim was aware that he or she was hurt and the negligence that caused the injury.7 This is the accrual date of the cause of action because it puts the onus on the victim to conduct a reasonable investigation into their injuries.8
Both of the discovery rule’s factors focus on the date the victim discovered his or her injury. Once the injury has been discovered, the statute begins to run, even if the plaintiff does not know who caused the injury.9 The statute also begins to run when the victim first discovers a persistent or lingering physical injury.10
The discovery rule is not limited to lawsuits for physical injuries. It can also apply to breach of contract lawsuits. This can help victims when the breach of a written contract is kept hidden and will not cause financial losses until well into the future.11
Why does the discovery rule exist?
The discovery rule exists to better compensate victims and to hold wrongdoers accountable for their conduct.
Without the discovery rule, victims who had no way of knowing that they had been hurt until several years had passed would be out of luck. By then, the statute of limitations would have expired. Their lawsuit for compensation would be quickly dismissed as time-barred. The negligent party would not be held accountable for the sole reason that the injuries that they caused were hidden for long enough.
For example: Cindy has a stomach surgery. During the procedure, a medical instrument breaks and a part of it is left inside her. 2 years later she begins to have stomach pains and the device is found. If there were no discovery rule, she would likely be unable to file a medical malpractice or product liability lawsuit on time. Because these incidents tend to go unnoticed for several years, a lack of a discovery rule would make it less likely that a hospital would take extra precautions to keep them from happening.
What is the point of statutes of limitations?
Statutes of limitations have several purposes. They:
- force victims to bring their claims sooner, rather than later,
- give potential defendants peace of mind once the statute has expired,
- ensure that evidence in the case will be easy to find and will not be destroyed or lost, and
- bring the claim to court before witnesses forget what happened, move somewhere else, or pass away.
Without statutes of limitations, alleged victims could bring their claims to court decades after the fact. No one would remember what happened. Crucial witnesses are nowhere to be found. Important documents have been lost or routinely destroyed.
Are there other ways to toll the statute?
The discovery rule is the most common way to convince a California court to delay the start of the limitations period. However, it is not the only way to toll the running of the statute of limitations period. Some other common situations that delay the amount of time to file a lawsuit include:
- personal injury claims where the victim was a minor at the time of the incident,
- legal claims for compensation against a criminal defendant for a serious felony offense, and
- lawsuits by child sex abuse victims.
Using one of these methods can save a case that would otherwise be dismissed by the superior court. Establishing an attorney-client relationship and getting the legal advice of an attorney from a reputable law firm is the best way to comply with the demands of the California statute of limitations.
Legal References:
- California Code of Civil Procedure 340(c) CCP.
- California Code Civ. Proc. 338 CCP.
- California Code Civ. Proc. 340.5 CCP.
- California Civil Jury Instructions (CACI) No. 455.
- Norgart v. Upjohn Co., 21 Cal.4th 383 (1999).
- Unruh-Haxton v. Regents of University of California, 162 Cal.App.4th 343 (2008).
- Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 (1988).
- Fox v. Ethicon Endo-Surgery, 35 Cal.4th 797 (2005).
- Bernson v. Browning-Ferris Industries, 7 Cal.4th 926 (1994).
- Vaca v. Wachovia Mortgage Corp., 198 Cal.App.4th 737 (2011).
- Wind Dancer Production Group v. Walt Disney Pictures, 10 Cal.App.5th 56 (2017).
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
