1. What is the statute of limitations in wrongful death cases in California?
California wrongful death cases have a two-year statute of limitations. The clock starts running on the date of the victim’s death.1
Example: Henry is working out at Los Angeles gym when a defective weight machine falls on him, killing him. The accident occurred on January 1, 2020. His family has until January 1, 2022 – two years later – to bring a wrongful death lawsuit.
Therefore, families are advised to seek legal counsel as soon as possible after the accident. In the legal world, two years is not a long time to gather evidence and craft a strong case.
2. What is a statute of limitations?
A statute of limitations is a legal term meaning the time limit to bring a lawsuit. Courts do not want people suing over “stale” claims from several years ago. The more time that goes by, the more memories fade, and the more evidence disappears.
So every type of claim has its own statute of limitations. For wrongful death in California, it is generally two years after the victim died.
3. What if the statute of limitations has passed?
There may be ways to still bring a lawsuit if the statute of limitations has passed. There are various circumstances that may pause (“toll“) the statute of limitations:
One situation is if the victim’s family does not discover he/she died until after the date of death.
Example: On January 1, 2020, Kelly is hiking alone outside of Sacramento and gets electrocuted to death by an invisible electric fence. No one knows where she is. Her body is not found until February 1, 2020.
Kelly’s family wants to sue the people who put out the electric fencing. In this case, a California court judge may allow the two-year clock start running on February 1, 2020, instead of January 1, 2020. This is because Kelly’s family had no way to know she died on January 1, 2020.
Another situation is if the victim’s family discovers later on that the death was wrongful.2
Example: On January 1, 2020, Freida is running alone in San Diego when she trips over cracked pavement and dies. The coroner wrongly identifies heart disease as the cause of death. But after an investigation on February 1, 2020, the coroner changes the cause of death to blunt force trauma from falling.
Freida’s family wants to sue the city for wrongful death for not maintaining the pavement. In this case, a California court judge may allow the two-year clock to start running on February 1, 2020, instead of January 1, 2020. This is because Freida’s family had no way to know she died from wrongful circumstances on January 1, 2020.
Additionally, minor children are not expected to sue for the wrongful death of a parent until they are adults.3
Example: Jim is 10 when his dad is killed in a hit and run in San Francisco. Jim can sue the driver up until he turns 20 (two years after becoming 18). This is because the statute of limitation tolls during Jim’s minority.
An attorney can help a victim’s family determine whether they can sue after the statute of limitations has passed.
4. What if the victim died from medical malpractice?
Medical malpractice is a separate claim from wrongful death. The statute of limitations turns on the age of the victim.
If the victim is an adult (18 or older), the time limit to sue is the earlier of:
- Three years after the injury occurred, or
- One year after the plaintiff discovers – or should have discovered – the injury
If the victim is under 18, the statute of limitations is the later of:
- Three years from the date of the alleged wrongful act, or
- If the minor was five years old or younger at the time of the injury, the minor’s eighth birthday.4
Sometimes, the date of the injury is the same as the date of death. In other cases, there is a gap between when the medical provider committed malpractice and when the patient dies from it.5 An attorney can help the victim’s family determine which claims to sue for and when.
In addition, the time limit to sue tolls when the medical provider commits fraud or intentionally conceals wrongdoing.
5. What is the statute of limitations in a survival action?
Like with wrongful death, it is two years after death.6 (A survival lawsuit lets the victim’s heirs sue on behalf of his/her estate. There are often combined with wrongful death lawsuits.)
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- California Code of Civil Procedure 335.1.
- Norgart v. Upjohn Co., 21 Cal. 4th 383, 87 Cal. Rptr. 2d 453, 981 P.2d 79 (1999).
- Arizmendi v. System Leasing Corp., 15 Cal. App. 3d 730, 93 Cal. Rptr. 411 (Cal. App. 2d Dist. Mar. 2, 1971).
- California Code of Civil Procedure 340.5.
- Mishalow v. Horwald, 231 Cal. App. 2d 517, 41 Cal. Rptr. 895 (Cal. App. 2d Dist. 1964).
- California Code of Civil Procedure 366.1.