CACI No. 338. Affirmative Defense - Statute of Limitations

Judicial Council of California Civil Jury Instructions (2023 edition)

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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 California
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
Four-Year Statute of Limitations: Contract. Code of Civil Procedure section
Two-Year Statute of Limitations: Contract. Code of Civil Procedure section
“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 Assn. (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].)
Secondary Sources
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 (11th ed. 2017) Contracts, § 345
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.42[2]
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.120 et seq. (Matthew
Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining
Applicable Statute of Limitations and Effect on Potential Action, 4.03 et seq.
339-349. Reserved for Future Use

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