CACI No. 4120. Affirmative Defense - Statute of Limitations

Judicial Council of California Civil Jury Instructions (2023 edition)

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4120.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 four years before complaint was filed] unless [name of
plaintiff] proves that before [insert date four years before complaint was
filed], [he/she/nonbinary pronoun/it] did not discover, and did not know of
facts that would have caused a reasonable person to suspect, [name of
defendant]’s wrongful act or omission.
New April 2007; Renumbered from CACI No. 4106 December 2007; Revised
December 2012
Directions for Use
Read this instruction only for a cause of action for breach of fiduciary duty. For a
statute-of-limitations defense to a cause of action for personal injury or wrongful
death due to wrongful or negligent conduct, see CACI No. 454, Affırmative
Defense - Statute of Limitations, and CACI No. 455, Statute of Limitations - Delayed
This instruction assumes that the four-year “catch-all” statute of limitations of Code
of Civil Procedure section 343 applies to claims for breach of fiduciary duty. (See
Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1230 [282 Cal.Rptr.
43].) There is, however, language in several cases supporting the proposition that if
the breach can be characterized as constructive fraud, the three-year limitation
period of Code of Civil Procedure section 338(d) applies. (See Austin v. Medicis
(2018) 21 Cal.App.5th 577, 587-588 [230 Cal.Rptr.3d 528]; William L. Lyon &
Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, 1312 [139
Cal.Rptr.3d 670].) If the court determines that the claim is actually for constructive
fraud, a date three years before the complaint was filed may be used instead of a
four-year date. It is not clear, however, when a breach of fiduciary duty might
constitute constructive fraud for purposes of the applicable statute of limitations.
(Compare Thomson v. Canyon (2011) 198 Cal.App.4th 594, 607 [129 Cal.Rptr.3d
525] [suggesting that breach of fiduciary duty founded on concealment of facts
would be subject to three-year statute] with Stalberg, supra, 230 Cal.App.3d at p.
1230 [applying four-year statute to breach of fiduciary duty based on concealment of
Do not use this instruction in an action against an attorney. For a statute-of-
limitations defense to a cause of action, other than actual fraud, against an attorney
acting in the capacity of an attorney, 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. One cannot avoid a shorter limitation period for attorney malpractice
(see Code Civ. Proc., § 340.6) by pleading the facts as a breach of fiduciary duty or
constructive fraud. (See Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 67−68
[72 Cal.Rptr.2d 359]; see also Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303, 322 [166 Cal.Rptr.3d 116] [constructive fraud].)
Sources and Authority
Four-Year Statute of Limitations. Code of Civil Procedure section 343.
“The statute of limitations for breach of fiduciary duty is four years. 343.)”
(Stalberg, supra, 230 Cal.App.3d at p. 1230, internal citation omitted.)
‘[W]here the gravamen of the complaint is that defendant’s acts constituted
actual or constructive fraud, the applicable statute of limitations is the [Code of
Civil Procedure section 338, subdivision (d) three-year] limitations period,’
governing fraud even though the cause of action is designated by the plaintiff as
a claim for breach of fiduciary duty.” (Thomson, supra, 198 Cal.App.4th at p.
“Defendants argue on appeal that the gravamen of plaintiff’s complaint is that
defendants’ acts constituted actual or constructive fraud, and thus should be
governed by the fraud statute of limitations. We disagree. Plaintiff’s claim is not
founded upon the concealment of facts but upon defendants’ alleged failure to
draft documents necessary to the real estate transaction in which they
represented plaintiff. The allegation is an allegation of breach of fiduciary duty,
not fraud.” (Thomson, supra, 198 Cal.App.4th at p. 607.)
“To be sure, section 340.6, subdivision (a), exempts claims of ‘actual fraud’ from
its limitations period - but the exemption does not extend to claims of
constructive fraud.” (Austin, supra, 21 Cal.App.5th at p. 587.)
“Breach of fiduciary duty not amounting to fraud or constructive fraud is subject
to the four-year ‘catch-all statute’ of Code of Civil Procedure section 343 . . . .
Fraud is subject to the three-year statute of limitations under Code of Civil
Procedure section 338. . . . [¶][¶] However, a breach of a fiduciary duty usually
constitutes constructive fraud.” (William L. Lyon & Associates, Inc., supra, 204
Cal.App.4th at pp. 1312, 1313.)
“The statute of limitations for breach of fiduciary duty is three years or four
years, depending on whether the breach is fraudulent or nonfraudulent.”
(American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th
1451, 1479 [171 Cal.Rptr.3d 548].)
“A breach of fiduciary duty claim is based on concealment of facts, and the
statute begins to run when plaintiffs discovered, or in the exercise of reasonable
diligence could have discovered, that facts had been concealed.” (Stalberg,
supra, 230 Cal.App.3d at p. 1230, internal citation omitted.)
“We also are not persuaded by [defendant]’s contention breach of fiduciary duty
can only be characterized as constructive fraud (which does not include
fraudulent intent as an element). This simply is not true: ‘A misrepresentation
that constitutes a breach of a fiduciary or confidential a [sic] relationship may,
depending on whether an intent to deceive is present, constitute either actual or
constructive fraud. However, the issue is usually discussed in terms of whether
the misrepresentation constitutes constructive fraud, because actual fraud can
exist independently of a fiduciary or confidential relationship, while the existence
of such a relationship is usually crucial to a finding of constructive fraud.’
(Worthington v. Davi (2012) 208 Cal.App.4th 263, 283 [145 Cal.Rptr.3d 389].)
‘Where a fiduciary obligation is present, the courts have recognized a
postponement of the accrual of the cause of action until the beneficiary has
knowledge or notice of the act constituting a breach of fidelity. [Citations.] The
existence of a trust relationship limits the duty of inquiry. “Thus, when a
potential plaintiff is in a fiduciary relationship with another individual, that
plaintiff’s burden of discovery is reduced and he is entitled to rely on the
statements and advice provided by the fiduciary.” (WA Southwest 2, LLC v.
First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 157 [192 Cal.Rptr.3d
“Delayed accrual due to the fiduciary relationship does not extend beyond the
bounds of the discovery rule, which operates to protect the plaintiff who
“despite diligent investigation . . . is blamelessly ignorant of the cause of his
injuries” and should not be barred from asserting a cause of action for wrongful
conduct “before he could reasonably be expected to discover its existence.”
(Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 334 [226 Cal.Rptr.3d
“The distinction between the rules excusing a late discovery of fraud and those
allowing late discovery in cases in the confidential relationship category is that
in the latter situation, the duty to investigate may arise later because the plaintiff
is entitled to rely upon the assumption that his fiduciary is acting on his behalf.
However, once a plaintiff becomes aware of facts which would make a
reasonably prudent person suspicious, the duty to investigate arises and the
plaintiff may then be charged with knowledge of the facts which would have
been discovered by such an investigation.” (Hobbs v. Bateman Eichler, Hill
Richards, Inc. (1985) 164 Cal.App.3d 174, 202 [210 Cal.Rptr. 387], original
italics, internal citations omitted.)
‘[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].)
“[T]he statute of limitations for aiding and abetting a breach of fiduciary duty is
the same as the statute of limitations for breach of fiduciary duty.” (American
Master Lease LLC,supra, 225 Cal.App.4th at p. 1479].)
‘Constructive fraud is a unique species of fraud applicable only to a fiduciary
or confidential relationship.’ [Citation.] [¶] ‘[A]s a general principle constructive
fraud comprises any act, omission or concealment involving a breach of legal or
equitable duty, trust or confidence which results in damage to another even
though the conduct is not otherwise fraudulent. Most acts by an agent in breach
of his fiduciary duties constitute constructive fraud. The failure of the fiduciary
to disclose a material fact to his principal which might affect the fiduciary’s
motives or the principal’s decision, which is known (or should be known) to the
fiduciary, may constitute constructive fraud. . . .’ (Mark Tanner Constr. v. Hub
Internat. Ins. Servs. (2014) 224 Cal.App.4th 574, 588 [169 Cal.Rptr.3d 39].)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Actions, §§ 677-679
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, 6:425.4 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.60 (Matthew
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§ 76.170 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.19[4] (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.29 (Matthew Bender)
4121-4199. Reserved for Future Use

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