California Civil Jury Instructions (CACI)

454. 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 from applicable statute of limitation].

New April 2007; Revised December 2007

Directions for Use

This instruction states the common-law rule that an action accrues on the date of injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 [245 Cal.Rptr. 658, 751 P.2d 923].) The date to be inserted is the applicable limitation period before the filing date. For example, if the limitation period is two years and the filing date is August 31, 2007, the date is August 31, 2005.

For an instruction on the delayed-discovery rule, see CACI No. 455, Statute of Limitations—Delayed Discovery. See also verdict form CACI No. VF-410, Statute of Limitations—Delayed Discovery— Reasonable Investigation Would Not Have Disclosed Pertinent Facts.

Do not use this instruction for attorney malpractice. (See CACI No. 610, Affırmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit, and CACI No. 611, Affırmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit.)

“Claimed harm” refers to all of the elements of the cause of action, which must have occurred before the cause of action accrues and the limitation period begins. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1029 [98 Cal.Rptr.2d 661].) In some cases, it may be necessary to modify this term to refer to specific facts that give rise to the cause of action.

Sources and Authority

  • Code of Civil Procedure section 335.1 provides a two-year limitation period for an action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.
  • Code of Civil Procedure section 338(c) provides a three-year limitation period for an action for taking, detaining, or injuring any goods or chattels, including an action for the specific recovery of personal property.
  • Code of Civil Procedure section 340.2(c) provides a one-year limitation period for an action for the wrongful death of any plaintiff’s decedent, based on exposure to asbestos, measured by the later of the date of death or the date the plaintiff first knew, or through the exercise of reasonable diligence should have known, that the death was caused or contributed to by exposure to asbestos.
  • “A limitation period does not begin until a cause of action accrues, i.e., all essential elements are present and a claim becomes legally actionable.” (Glue- Fold, Inc., supra, 82 Cal.App.4th at p. 1029, internal citations omitted.)
  • “Where, as here, ‘damages are an element of a cause of action, the cause of action does not accrue until the damages have been sustained. . . . “Mere threat of future harm, not yet realized, is not enough.” . . . “Basic public policy is best served by recognizing that damage is necessary to mature such a cause of action.” . . . Therefore, when the wrongful act does not result in immediate damage, “the cause of action does not accrue prior to the maturation of perceptible harm.” ’ ” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604 [129 Cal.Rptr.3d 525].)
  • “ ‘[O]nce plaintiff has suffered actual and appreciable harm, neither the speculative nor uncertain character of damages nor the difficulty of proof will toll the period of limitation.’ Cases contrast actual and appreciable harm with nominal damages, speculative harm or the threat of future harm. The mere breach of duty—causing only nominal damages, speculative harm or the threat of future harm not yet realized—normally does not suffice to create a cause of action.” (San Francisco Unified School Dist. v. W. R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1326 [44 Cal.Rptr.2d 305], internal citations omitted.)
  • “Generally, the bar of the statute of limitations is raised as an affirmative defense, subject to proof by the defendant.” (Czajkowski v. Haskell & White (2012) 208 Cal.App.4th 166, 174 [144 Cal.Rptr.3d 522].)
  • “ ‘[R]esolution of the statute of limitations issue is normally a question of fact . . . .’ ” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487 [59 Cal.Rptr.2d 20, 926 P.2d 1114].)

Secondary Sources

3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 493–507, 553–592, 673

5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal of Tort Actions, §§ 71.01–71.06 (Matthew Bender)

30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions, §§ 345.19, 345.20 (Matthew Bender)

33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150 (Matthew Bender)

14 California Points and Authorities, Ch. 143, Limitation of Actions, §§ 143.20–143.65 (Matthew Bender)

1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4, Limitation of Actions, 4.05, 4.14, 4.38, 4.39