California Civil Jury Instructions (CACI) (2017)

457. Statute of Limitations—Equitable Tolling—Other Prior Proceeding

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457.Statute of Limitations—Equitable Tolling—Other Prior
[Name of plaintiff] claims that even if [his/her/its] lawsuit was not filed
by [insert date from applicable statute of limitations], [he/she/it] may still
proceed because the deadline for filing the lawsuit was extended by the
time during which [specify prior proceeding that qualifies as the tolling
event, e.g., she was seeking workers’ compensation benefits]. In order to
establish the right to proceed, [name of plaintiff] must prove all of the
1. That [name of defendant] received timely notice that [name of
plaintiff] was [e.g., seeking workers’ compensation] instead of filing
a lawsuit;
2. That the facts of the two claims were so similar that an
investigation of the [e.g., workers’ compensation claim] gave or
would have given [name of defendant] the information needed to
defend the lawsuit; and
3. That [name of plaintiff] was acting reasonably and in good faith
by [e.g., seeking workers’ compensation].
For [name of defendant] to have received timely notice, [name of plaintiff]
must have filed the [e.g., workers’ compensation claim] by [insert date
from applicable statute of limitations] and the [e.g., claim] notified [name
of defendant] of the need to begin investigating the facts that form the
basis for the lawsuit.
In considering whether [name of plaintiff] acted reasonably and in good
faith, you may consider the amount of time after the [e.g., workers’
compensation claim] was [resolved/abandoned] before [he/she/it] filed the
New December 2009; Revised December 2014
Directions for Use
Equitable tolling, including any disputed issue of fact, is to be decided by the
court, even if there are disputed issues of fact. (Hopkins v. Kedzierski (2014) 225
Cal.App.4th 736, 745 [170 Cal.Rptr.3d 551].) This instruction is for use if the court
submits the issue to the jury for advisory findings.
Equitable tolling is not available for legal malpractice (see Laird v. Blacker (1992)
2 Cal.4th 606, 618 [7 Cal.Rptr.2d 550, 828 P.2d 691] [statutory tolling provisions
of Code Civ Proc., § 340.6 are exclusive for both one-year and four-year limitation
periods]; see also 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) nor for medical malpractice with regard to the three-year limitation period of
Code of Civil Procedure section 340.5. (See Belton v. Bowers Ambulance Serv.
(1999) 20 Cal.4th 928, 934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [statutory tolling
provisions of Code Civ. Proc., § 340.5 are exclusive only for three-year period;
one-year period may be tolled on other grounds]; see also 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.)
Sources and Authority
• “The equitable tolling of statutes of limitations is a judicially created,
nonstatutory doctrine. It is ‘designed to prevent unjust and technical forfeitures
of the right to a trial on the merits when the purpose of the statute of
limitations—timely notice to the defendant of the plaintiff’s claims—has been
satisfied.’ Where applicable, the doctrine will ‘suspend or extend a statute of
limitations as necessary to ensure fundamental practicality and fairness.’ ”
(McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88,
99 [84 Cal.Rptr.3d 734, 194 P.3d 1026], internal citations omitted.)
• “While the case law is not entirely clear, it appears that the weight of authority
supports our conclusion that whether a plaintiff has demonstrated the elements
of equitable tolling presents a question of fact.” (Hopkins,supra, 225
Cal.App.4th at p. 755.)
• “[E]quitable tolling, ‘[a]s the name suggests . . . is an equitable issue for court
resolution.’ ” (Hopkins,supra, 225 Cal.App.4th at p. 745.)
• “While the judge determines equitable causes of action, the judge may (in rare
instances) empanel an advisory jury to make preliminary factual findings. The
factual findings are purely advisory because, on equitable causes of action, the
judge is the proper fact finder. ‘[W]hile a jury may be used for advisory
verdicts as to questions of fact [in equitable actions], it is the duty of the trial
court to make its own independent findings and to adopt or reject the findings
of the jury as it deems proper.’ ” (Hoopes v. Dolan (2008) 168 Cal.App.4th 146,
156 [85 Cal.Rptr.3d 337], internal citations omitted.)
• “[CACI No. 457 is] appropriate for use when a trial court ‘empanel[s] an
advisory jury to make preliminary factual findings,’ with respect to equitable
. . . tolling.” (Hopkins,supra, 225 Cal.App.4th at p. 745.)
• “The equitable tolling doctrine rests on the concept that a plaintiff should not be
barred by a statute of limitations unless the defendant would be unfairly
prejudiced if the plaintiff were allowed to proceed. ‘[T]he primary purpose of
the statute of limitations is normally satisfied when the defendant receives
timely notification of the first of two proceedings.’ The doctrine has been
applied ‘where one action stands to lessen the harm that is the subject of the
second action; where administrative remedies must be exhausted before a
second action can proceed; or where a first action, embarked upon in good
faith, is found to be defective for some reason.’ ” (Aguilera v. Heiman (2009)
174 Cal.App.4th 590, 598 [95 Cal.Rptr.3d 18], internal citations omitted.)
• “[T]he effect of equitable tolling is that the limitations period stops running
during the tolling event, and begins to run again only when the tolling event
has concluded. As a consequence, the tolled interval, no matter when it took
place, is tacked onto the end of the limitations period, thus extending the
deadline for suit by the entire length of time during which the tolling event
previously occurred.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370–371
[2 Cal.Rptr.3d 655, 73 P.3d 517].)
• “A major reason for applying the doctrine is to avoid ‘the hardship of
compelling plaintiffs to pursue several duplicative actions simultaneously on the
same set of facts.’ ‘[D]isposition of a case filed in one forum may render
proceedings in the second unnecessary or easier and less expensive to
resolve.’ ” (Guevara v. Ventura County Community College Dist. (2008) 169
Cal.App.4th 167, 174 [87 Cal.Rptr.3d 50], internal citations omitted.)
• “[A]pplication of the doctrine of equitable tolling requires timely notice, and
lack of prejudice, to the defendant, and reasonable and good faith conduct on
the part of the plaintiff. These elements seemingly are present here. As noted,
the federal court, without prejudice, declined to assert jurisdiction over a timely
filed state law cause of action and plaintiffs thereafter promptly asserted that
cause in the proper state court. Unquestionably, the same set of facts may be
the basis for claims under both federal and state law. We discern no reason of
policy which would require plaintiffs to file simultaneously two separate actions
based upon the same facts in both state and federal courts since ‘duplicative
proceedings are surely inefficient, awkward and laborious.’ ” (Addison v. State
(1978) 21 Cal.3d 313, 319 [146 Cal.Rptr. 224, 578 P.2d 941], internal citations
• “ ‘ “The timely notice requirement essentially means that the first claim must
have been filed within the statutory period. Furthermore[,] the filing of the first
claim must alert the defendant in the second claim of the need to begin
investigating the facts which form the basis for the second claim. Generally this
means that the defendant in the first claim is the same one being sued in the
second.” “The second prerequisite essentially translates to a requirement that the
facts of the two claims be identical or at least so similar that the defendant’s
investigation of the first claim will put him in a position to fairly defend the
second.” “The third prerequisite of good faith and reasonable conduct on the
part of the plaintiff is less clearly defined in the cases. But in Addison v. State
of California, supra, 21 Cal.3d 313[,] the Supreme Court did stress that the
plaintiff filed his second claim a short time after tolling ended.” ’ ” (McDonald,
supra, 45 Cal.4th at p. 102, fn. 2, internal citations omitted.)
• “The third requirement of good faith and reasonable conduct may turn on
whether ‘a plaintiff delayed filing the second claim until the statute on that
claim had nearly run . . .’ or ‘whether the plaintiff [took] affirmative actions
which . . . misle[d] the defendant into believing the plaintiff was foregoing his
second claim.’ ” (Tarkington v. California Unemployment Ins. Appeals Bd.
(2009) 172 Cal.App.4th 1494, 1505 [92 Cal.Rptr.3d 131].)
• “Where exhaustion of an administrative remedy is mandatory prior to filing suit,
equitable tolling is automatic: ‘It has long been settled in this and other
jurisdictions that whenever the exhaustion of administrative remedies is a
prerequisite to the initiation of a civil action, the running of the limitations
period is tolled during the time consumed by the administrative proceeding.’
This rule prevents administrative exhaustion requirements from rendering
illusory nonadministrative remedies contingent on exhaustion.” (McDonald,
supra, 45 Cal.4th at p. 101, internal citation omitted.)
• “The trial court rejected equitable tolling on the apparent ground that tolling
was unavailable where, as here, the plaintiff was advised the alternate
administrative procedure he or she was pursuing was voluntary and need not be
exhausted. In reversing summary judgment, the Court of Appeal implicitly
concluded equitable tolling is in fact available in such circumstances and
explicitly concluded equitable tolling is not foreclosed as a matter of law under
the FEHA. The Court of Appeal was correct on each count.” (McDonald, supra,
45 Cal.4th at p. 114.)
• “Equitable tolling and equitable estoppel [see CACI No. 456] are distinct
doctrines. ‘ “Tolling, strictly speaking, is concerned with the point at which the
limitations period begins to run and with the circumstances in which the
running of the limitations period may be suspended. . . . Equitable estoppel,
however, . . . comes into play only after the limitations period has run and
addresses . . . the circumstances in which a party will be estopped from
asserting the statute of limitations as a defense to an admittedly untimely action
because his conduct has induced another into forbearing suit within the
applicable limitations period. [Equitable estoppel] is wholly independent of the
limitations period itself and takes its life . . . from the equitable principle that
no man [may] profit from his own wrongdoing in a court of justice.” ’ ”
(Lantzy, supra, 31 Cal.4th at pp. 383–384.)
• “[V]oluntary abandonment [of the first proceeding] does not categorically bar
application of equitable tolling, but it may be relevant to whether a plaintiff can
satisfy the three criteria for equitable tolling.” (McDonald, supra, 45 Cal.4th at
p. 111.)
• “The equitable tolling doctrine generally requires a showing that the plaintiff is
seeking an alternate remedy in an established procedural context. Informal
negotiations or discussions between an employer and employee do not toll a
statute of limitations under the equitable tolling doctrine.” (Acuna v. San Diego
Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416 [159 Cal.Rptr.3d 749],
internal citation omitted.)
• “Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive
period be tolled except under those circumstances specified in the statute. Thus,
the Legislature expressly intended to disallow tolling under any circumstances
not enumerated in the statute.” (Laird, supra, 2 Cal.4th at p. 618 [applying rule
to one-year limitation period].)
• “We see no reason to apply the second sentence of section 340.5 to the one-
year period it does not mention, in addition to the three-year period it does
mention. The general purpose of MICRA does not require us to expand that
sentence beyond its language.” (Belton, supra, 20 Cal.4th at p. 934 [rejecting
application of rule to one-year limitation period].)
• “[E]quitable tolling has never been applied to allow a plaintiff to extend the
time for pursuing an administrative remedy by filing a lawsuit. Despite broad
language used by courts in employing the doctrine, equitable tolling has been
applied almost exclusively to extend statutory deadlines for judicial actions,
rather than deadlines for commencing administrative proceedings.” (Bjorndal v.
Superior Court (2012) 211 Cal.App.4th 1100, 1109 [150 Cal.Rptr.3d 405].)
Secondary Sources
Rylaarsdam et al., California Practice Guide: Civil Procedure Before Trial—Statutes
of Limitations, Ch. 1-A, Definitions And Distinctions ¶ 1:57.2 (The Rutter Group)
3 California Torts, Ch. 32, Liability of Attorneys, § 32.60[1][g.1] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.21 (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.46
(Matthew Bender)
458–459. Reserved for Future Use