CACI No. 454. Affirmative Defense - Statute of Limitations

Judicial Council of California Civil Jury Instructions (2023 edition)

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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
Two-Year Statute of Limitations. Code of Civil Procedure section 335.1.
Three-Year Statute of Limitations. Code of Civil Procedure section 338(c).
One-Year Statute of Limitations. Code of Civil Procedure section 340.2(c).
“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.)
“Ordinarily this is when the wrongful act is done and the obligation or the
liability arises, but it does not ‘accrue until the party owning it is entitled to
begin and prosecute an action thereon.’ . . . In other words, “[a] cause of
action accrues ‘upon the occurrence of the last element essential to the cause of
action.’ (Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 323
[226 Cal.Rptr.3d 267], original italics.)
“It is undisputed that plaintiffs discovered shortly after the accident in 2010 that
[defendant] had failed to secure the insurance coverage plaintiffs requested.
Thus, this case does not involve the delayed discovery doctrine, which makes
‘accrual of a cause of action contingent on when a party discovered or should
have discovered that his or her injury had a wrongful cause.’ In delayed
discovery cases, ‘plaintiffs are required to conduct a reasonable investigation
after becoming aware of an injury, and are charged with knowledge of the
information that would have been revealed by such an investigation.’ Here, the
question is when plaintiffs incurred ‘actual injury’ - not when they discovered
[defendant]’s negligence. The trial court erred to the extent that it relied on the
delayed discovery doctrine to determine when plaintiffs incurred actual injury.”
(Lederer v. Gursey Schneider LLP (2018) 22 Cal.App.5th 508, 521 [231
Cal.Rptr.3d 518], 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].)
“[W]hen a defendant asserts a statute of limitations defense against a FEHA
failure to promote claim, the burden is on the defendant to prove when the
plaintiff knew or should have known of the adverse promotion decision. (Pollock
v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 947 [281
Cal.Rptr.3d 498, 491 P.3d 290].)
‘[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.)
“Violations of a continuing or recurring obligation may give rise to ‘continuous
accrual’ of causes of action, meaning that “a cause of action accrues each time
a wrongful act occurs, triggering a new limitations period.” [Citation.]’
(Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 59 [247 Cal.Rptr.3d 875].)
“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 Int’l, Inc. (1996) 14 Cal.4th 479, 487 [59
Cal.Rptr.2d 20, 926 P.2d 1114].)
“Commencement of the statute of limitations is usually a factual question, but
can be resolved as a matter of law when, as here, the material facts are not
disputed.” Moss v. Duncan (2019) 36 Cal.App.5th 569, 574 [248 Cal.Rptr.3d
“Because the relevant facts are not in dispute, the application of the statute of
limitations may be decided as a question of law.” (Lederer, supra, 22
Cal.App.5th at p. 521.)
“Based upon our review of legal precedent and our understanding of the
principles and policies of the continuous accrual theory, we conclude that the
theory is not limited in its application to cases in which a payor has acted
‘wrongfully’ in the sense of failing or refusing to make a periodic payment to a
payee.” (Blaser v. State Teachers’ Retirement System (2019) 37 Cal.App.5th 349,
372 [249 Cal.Rptr.3d 701].)
“So long as the time allowed for filing an action is not inherently unreasonable,
California courts afford ‘contracting parties considerable freedom to modify the
length of a statute of limitations.’ (Wind Dancer Production Group v. Walt
Disney Pictures (2017) 10 Cal.App.5th 56, 74 [215 Cal.Rptr.3d 835].)
Secondary Sources
4 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 et seq.
(Matthew Bender)
1 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 17,
Preparing the Answer, § 17-IV[I]

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