California Civil Jury Instructions (CACI)
338. Affirmative Defense—Statute of Limitations
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not filed within the time set by law. To succeed on this defense, [name of defendant] must prove that [name of plaintiff]’s claimed harm occurred before [insert date two or four years before date of filing].
New December 2007
Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not filed within the applicable four-year period for breach of a written contract (see Code Civ. Proc., § 337(1)) or two-year period for breach of an oral contract. (See Code Civ. Proc., § 339(1).) Do not use this instruction for breach of a Uniform Commercial Code sales contract. (See Com. Code, § 2725.)
If the contract either shortens or extends the limitation period, use the applicable period from the contract instead of two years or four years.
If the plaintiff alleges that the delayed-discovery rule applies to avoid the limitation defense, CACI No. 455, Statute of Limitations—Delayed Discovery, may be adapted for use.
Sources and Authority
- Code of Civil Procedure section 337(1) provides: “Within four years: 1. An action upon any contract, obligation or liability founded upon an instrument in writing, except as provided in Section 336a of this code; provided, that the time within which any action for a money judgment for the balance due upon an obligation for the payment of which a deed of trust or mortgage with power of sale upon real property or any interest therein was given as security, following the exercise of the power of sale in such deed of trust or mortgage, may be brought shall not extend beyond three months after the time of sale under such deed of trust or mortgage.”
- Code of Civil Procedure section 339(1) provides: “Within two years: 1. An action upon a contract, obligation or liability not founded upon an instrument of writing, except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code; or an action founded upon a contract, obligation or liability, evidenced by a certificate, or abstract or guaranty of title of real property, or by a policy of title insurance; provided, that the cause of action upon a contract, obligation or liability evidenced by a certificate, or abstract or guaranty of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder.”
- “In general, California courts have permitted contracting parties to modify the length of the otherwise applicable California statute of limitations, whether the contract has extended or shortened the limitations period.” (Hambrecht & Quist Venture Partners v. Am. Medical Internat. (1995) 38 Cal.App.4th 1532, 1547 [46 Cal.Rptr.2d 33].)
- “A contract cause of action does not accrue until the contract has been breached.” (Spear v. Cal. State Automobile Ass’n (1992) 2 Cal.4th 1035, 1042 [9 Cal.Rptr.2d 381, 831 P.2d 821].)
- “The claim accrues when the plaintiff discovers, or could have discovered through reasonable diligence, the injury and its cause.” (Angeles Chem. Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 119 [51 Cal.Rptr.2d 594].)
- “[T]he discovery rule may be applied to breaches [of contract] which can be, and are, committed in secret and, moreover, where the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a future time.” (Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, 4–5 [131 Cal.Rptr.2d 680].)
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 508–548
5 Witkin, California Procedure (5th ed. 2008) Pleading, § 1072
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 344
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.42 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.120 et seq. (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining Applicable Statute of Limitations and Effect on Potential Action, 4.03 et seq.