CACI No. 455. Statute of Limitations - Delayed Discovery

Judicial Council of California Civil Jury Instructions (2023 edition)

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455.Statute of Limitations - Delayed Discovery
If [name of defendant] proves that [name of plaintiff]’s claimed harm
occurred before [insert date from applicable statute of limitations], [name of
plaintiff]’s lawsuit was still filed on time if [name of plaintiff] proves that
before that date,
[[name of plaintiff] did not discover, and did not know of facts that would
have caused a reasonable person to suspect, that [he/she/nonbinary
pronoun/it] had suffered harm that was caused by someone’s wrongful
[[name of plaintiff] did not discover, and a reasonable and diligent
investigation would not have disclosed, that [specify factual basis for cause
of action] contributed to [name of plaintiff]’s harm.]
New April 2007; Revised December 2007, April 2009, December 2009, May 2020
Directions for Use
Read this instruction with the first option after CACI No. 454, Affırmative
Defense - Statute of Limitations, if the plaintiff seeks to overcome the statute-of-
limitations defense by asserting the “delayed-discovery rule” or “discovery rule.”
The discovery rule provides that the accrual date of a cause of action is delayed
until the plaintiff is aware of the plaintiff’s injury and its negligent cause. (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, 2009,
the date is August 31, 2007.
Read this instruction with the second option if the facts suggest that even if the
plaintiff had conducted a timely and reasonable investigation, it would not have
disclosed the limitation-triggering information. (See Fox v. Ethicon Endo-Surgery
(2005) 35 Cal.4th 797 [27 Cal.Rptr.3d 661, 110 P.3d 914] [fact that plaintiff
suspected her injury was caused by surgeon’s negligence and timely filed action for
medical negligence against health care provider did not preclude “discovery rule”
from delaying accrual of limitations period on products liability cause of action
against medical staple manufacturer whose role in causing injury was not known
and could not have been reasonably discovered within the applicable limitations
period commencing from date of injury].)
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 medical malpractice (see CACI No. 555, Affırmative
Defense - Statute of Limitations - Medical Malpractice - One-Year Limit, and CACI
No. 556, Affırmative Defense - Statute of Limitations - Medical Malpractice - Three-
Year Limit) or 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). Also, do not use this instruction if the case was timely but a fictitiously
named defendant was identified and substituted in after the limitation period expired.
(See McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942 [63 Cal.Rptr.3d 615]
[if lawsuit is initiated within the applicable period of limitations against one party
and the plaintiff has complied with Code of Civil Procedure section 474 by alleging
the existence of unknown additional defendants, the relevant inquiry when the
plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts
the plaintiff actually knew at the time the original complaint was filed].)
“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
“An exception to the general rule for defining the accrual of a cause of
action - indeed, the ‘most important’ one - is the discovery rule. . . . It
postpones accrual of a cause of action until the plaintiff discovers, or has reason
to discover, the cause of action. [¶] . . . [T]he plaintiff discovers the cause of
action when he at least suspects a factual basis, as opposed to a legal theory, for
its elements, even if he lacks knowledge thereof - when, simply put, he at least
‘suspects . . . that someone has done something wrong’ to him, ‘wrong’ being
used, not in any technical sense, but rather in accordance with its ‘lay
understanding.’ He has reason to discover the cause of action when he has
reason at least to suspect a factual basis for its elements. He has reason to
suspect when he has ‘notice or information of circumstances to put a reasonable
person on inquiry’; he need not know the ‘specific “facts” necessary to establish’
the cause of action; rather, he may seek to learn such facts through the ‘process
contemplated by pretrial discovery’; but, within the applicable limitations period,
he must indeed seek to learn the facts necessary to bring the cause of action in
the first place - he ‘cannot wait for them to ‘find him’ and ‘sit on’ his ‘rights’;
he ‘must go find’ them himself if he can and ‘file suit’ if he does.” (Norgart v.
Upjohn Co. (1999) 21 Cal.4th 383, 397-398 [87 Cal.Rptr.2d 453, 981 P.2d 79],
original italics, internal citations and footnote omitted.)
“[I]t is the discovery of facts, not their legal significance, that starts the statute.”
(Jolly, supra, 44 Cal.3d at p. 1113.)
Jolly ‘sets forth two alternate tests for triggering the limitations period: (1) a
subjective test requiring actual suspicion by the plaintiff that the injury was
caused by wrongdoing; and (2) an objective test requiring a showing that a
reasonable person would have suspected the injury was caused by wrongdoing.
[Citation.] The first to occur under these two tests begins the limitations
period.’ (Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1552
[178 Cal.Rptr.3d 897].)
“While ignorance of the existence of an injury or cause of action may delay the
running of the statute of limitations until the date of discovery, the general rule
in California has been that ignorance of the identity of the defendant is not
essential to a claim and therefore will not toll the statute.” (Bernson v.
Browning-Ferris Industries (1994) 7 Cal.4th 926, 932 [30 Cal.Rptr.2d 440, 873
P.2d 613].)
“[U]nder the delayed discovery rule, a cause of action accrues and the statute of
limitations begins to run when the plaintiff has reason to suspect an injury and
some wrongful cause, unless the plaintiff pleads and proves that a reasonable
investigation at that time would not have revealed a factual basis for that
particular cause of action. In that case, the statute of limitations for that cause of
action will be tolled until such time as a reasonable investigation would have
revealed its factual basis.” (Fox, supra, 35 Cal.4th at p. 803.)
“The California rule on delayed discovery of a cause of action is the statute of
limitation begins to run ‘when the plaintiff has reason to suspect an injury and
some wrongful cause . . . .’ ‘A plaintiff need not be aware of the specific “facts”
necessary to establish the claim; that is a process contemplated by pretrial
discovery. . . . So long as a suspicion exists, it is clear that the plaintiff must go
find the facts; she cannot wait for the facts to find her.’ (MGA Entertainment,
Inc. v. Mattel, Inc. (2019) 41 Cal.App.5th 554, 561 [254 Cal.Rptr.3d 314].)
“[A]s Fox teaches, claims based on two independent legal theories against two
separate defendants can accrue at different times.” (E-Fab, Inc. v. Accountants,
Inc. Services (2007) 153 Cal.App.4th 1308, 1323 [64 Cal.Rptr.3d 9].)
“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. Developed
to mitigate the harsh results produced by strict definitions of accrual, the
common law discovery rule postpones accrual until a plaintiff discovers or has
reason to discover the cause of action.” (Glue-Fold, Inc., supra, 82 Cal.App.4th
at p. 1029, internal citations omitted.)
“A plaintiff’s inability to discover a cause of action may occur ‘when it is
particularly difficult for the plaintiff to observe or understand the breach of duty,
or when the injury itself (or its cause) is hidden or beyond what the ordinary
person could be expected to understand.’ (NBCUniversal Media, LLC v.
Superior Court (2014) 225 Cal.App.4th 1222, 1232 [171 Cal.Rptr.3d 1].)
“[T]he plaintiff may discover, or have reason to discover, the cause of action
even if he does not suspect, or have reason to suspect, the identity of the
defendant. That is because the identity of the defendant is not an element of any
cause of action. It follows that failure to discover, or have reason to discover, the
identity of the defendant does not postpone the accrual of a cause of action,
whereas a like failure concerning the cause of action itself does. ‘Although never
fully articulated, the rationale for distinguishing between ignorance’ of the
defendant and ‘ignorance’ of the cause of action itself ‘appears to be premised
on the commonsense assumption that once the plaintiff is aware of the latter, he
‘normally’ has ‘sufficient opportunity,’ within the ‘applicable limitations period,’
‘to discover the identity’ of the former. He may ‘often effectively extend[]’ the
limitations period in question ‘by the filing’ and amendment ‘of a Doe
complaint’ and invocation of the relation-back doctrine. ‘Where’ he knows the
‘identity of at least one defendant . . . , [he] must’ proceed thus.” (Norgart,
supra, 21 Cal.4th at p. 399, internal citations and footnote omitted.)
“The discovery rule only delays accrual until the plaintiff has, or should have,
inquiry notice of the cause of action. The discovery rule does not encourage
dilatory tactics because plaintiffs are charged with presumptive knowledge of an
injury if they have ‘information of circumstances to put [them] on inquiry’
or if they have ‘the opportunity to obtain knowledge from sources open to
[their] investigation.’ In other words, 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.” (Fox, supra, 35 Cal.4th at pp. 807-808, internal citations
“Thus, a two-part analysis is used to assess when a claim has accrued under the
discovery rule. The initial step focuses on whether the plaintiff possessed
information that would cause a reasonable person to inquire into the cause of his
injuries. Under California law, this inquiry duty arises when the plaintiff
becomes aware of facts that would cause a reasonably prudent person to suspect
his injuries were the result of wrongdoing. If the plaintiff was in possession of
such facts, thereby triggering his duty to investigate, it must next be determined
whether ‘such an investigation would have disclosed a factual basis for a cause
of action[.] [T]he statute of limitations begins to run on that cause of action
when the investigation would have brought such information to light.’
(Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251 [162 Cal.Rptr.3d
617], internal citation omitted.)
“[I]f continuing injury from a completed act generally extended the limitations
periods, those periods would lack meaning. Parties could file suit at any time, as
long as their injuries persisted. This is not the law. The time bar starts running
when the plaintiff first learns of actionable injury, even if the injury will linger
or compound. ‘[W]here an injury, although slight, is sustained in consequence
of the wrongful act of another, and the law affords a remedy therefor, the statute
of limitations attaches at once. It is not material that all the damages resulting
from the act shall have been sustained at that time, and the running of the
statute is not postponed by the fact that the actual or substantial damages do not
occur until a later date . . . .’ (Vaca v. Wachovia Mortgage Corp. (2011)
198 Cal.App.4th 737, 745 [129 Cal.Rptr.3d 354], original italics, internal citation
“[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.’
(Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th
56, 73 [215 Cal.Rptr.3d 835].)
“[T]he trial court erred in concluding that the discovery rule did not pertain to
the limitations period of section 335.1 for medical battery claims.” (Daley v.
Regents of University of California (2019) 39 Cal.App.5th 595, 606 [252
Cal.Rptr.3d 273].)
There is no doctrine of constructive or imputed suspicion arising from media
coverage. “[Defendant]’s argument amounts to a contention that, having taken a
prescription drug, [plaintiff] had an obligation to read newspapers and watch
television news and otherwise seek out news of dangerous side effects not
disclosed by the prescribing doctor, or indeed by the drug manufacturer, and that
if she failed in this obligation, she could lose her right to sue. We see no such
obligation.” (Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th
1202, 1206 [48 Cal.Rptr.3d 668].)
“The statute of limitations does not begin to run when some members of the
public have a suspicion of wrongdoing, but only ‘[o]nce the plaintiff has a
suspicion of wrongdoing.’ (Unruh-Haxton v. Regents of University of
California (2008) 162 Cal.App.4th 343, 364 [76 Cal.Rptr.3d 146], original
“Generally, the bar of the statute of limitations is raised as an affirmative
defense, subject to proof by the defendant. [¶] However, when a plaintiff relies
on the discovery rule or allegations of fraudulent concealment as excuses for an
apparently belated filing of a complaint, ‘the burden of pleading and proving
belated discovery of a cause of action falls on the plaintiff.’ (Czajkowski v.
Haskell & White, LLP (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].)
“More specifically, as to accrual, ‘once properly pleaded, belated discovery is a
question of fact.’ (Nguyen, supra, 229 Cal.App.4th at p. 1552.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 493-507, 553-592, 673
Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, When To
Sue - Statute Of Limitations, ¶¶ 5:108-5:111.6 (The Rutter Group)
5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal
of Tort Actions, § 71.03[3] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.19[3] (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, §§ 143.47,
143.52 et seq. (Matthew Bender)
McDonald, California Medical Malpractice: Law and Practice §§ 7:1-7:7 (Thomson

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