CACI No. 338. Affirmative Defense - Statute of Limitations

Judicial Council of California Civil Jury Instructions (2020 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
Copyright Judicial Council of California
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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