Determining when the statute of limitations expires is not always easy. This is particularly true in medical malpractice cases which are governed by two Code of Civil Procedure sections: 340.5 and 364. Additionally, other statutes may act to toll the applicable statute of limitations. One such statute is Insurance Code section 11583. It provides that the applicable statute of limitations is tolled when advance or partial payment is made to an injured and unrepresented person without notifying him of the applicable limitations period. Continue reading
A trustee is required to provide notice to heirs and beneficiaries when all or part of a revocable trust becomes irrevocable due to the death of a settlor pursuant to Probate Code section 16061.7. Under Probate Code section 16061.8 any action contesting the trust must be filed within 120 days from the date the notification by trustee is served upon the contestant “or 60 days from the day on which a copy of the terms of the trust is mailed or personally delivered to him or her during that 120-day period, whichever is later.”
Does Code of Civil Procedure section 1013 (which extends time for service by means other than personal delivery) apply to section 16061.8? No. A petition filed past the limitations period is untimely and a demurrer to the petition is properly sustained without leave to amend. Bridgeman v. Allen.
The rules which govern how a party petitions the court to vacate an arbitration award contain a potential jurisdictional trap. Specifically, Code of Civil Procedure section 1288 requires that a petition to vacate an arbitration award shall be both served and filed not later than 100 days after the date of service of a signed copy of the award on petitioner. Failure to serve within the statutory period is jurisdictional and fatal. Continue reading
Laches is an equitable defense which may be asserted when unreasonable delay in bringing a cause of action results in prejudice. While the statute of limitations specifies the outside time limit within which a cause of action must be brought, laches considers the totality of circumstances surrounding delay, and any resulting prejudice, to deny a remedy when a claimant has “slept on his rights.” Continue reading
The statute of limitations period, the period in which a plaintiff must bring suit or be barred, runs from the moment a claim accrues. Traditionally a cause of action accrues when it is complete with all of its elements: wrongdoing, harm, and causation.
This is known as the last element accrual rule. Ordinarily the statute of limitations runs from the occurrence of the last element essential to the cause of action. Over time there has developed a handful of equitable exceptions and modifications to this rule. One such exception is the continuous accrual rule. Continue reading
In a case of first impression the court in Allen v. Stoddard was confronted with the circumstance where plaintiff’s suit — based upon an alleged contract to make a will against the executor of an estate — was filed 91 days after rejection by the estate of his creditor’s claim but within a year of the decedent’s death.
Probate Code sections 9350 to 9354 govern claims against decedents’ estates and section 9353 unambiguously states that regardless of any other statute of limitations, any claimant against an estate has only 90 days after notice of rejection of the claim by the estate to file suit. If section 9353 governs plaintiff’s claim is time-barred.
However, Code of Civil Procedure section 366.3 specifically gives persons who have claims against estates based on promises to make a distribution after death (such as contracts to make a will) a full year from the date of the decedent’s death to file suit. Was plaintiff’s suit, therefore, timely? The court held that it was. Continue reading