To survive a demurrer in a civil case, the plaintiff must assert his claims before the statute of limitations expires. However, the statutory deadline may be extended—or tolled—if, among other reasons, the plaintiff is “imprisoned on a criminal charge” when the cause of action accrues. A cause of action accrues when a party is entitled to prosecute an action based upon it.
In a case of first impression, the Second Appellate District holds in Austin v. Medicis that a plaintiff is “imprisoned on a criminal charge” within the meaning of Code of Civil Procedure section 352.1 when plaintiff is serving a term of imprisonment in state prison–not when plaintiff is merely incarcerated, pretrial, in the county jail.
The California Supreme Court holds that where a plaintiff’s injury results from alleged negligence in the use and maintenance of equipment needed to implement a physician’s order concerning plaintiff’s medical treatment, the claim sounds in professional, rather than ordinary, negligence. The special statute of limitations period “for injury or death against a health care provider based upon such person’s alleged professional negligence” is applicable.
Generally, a personal injury action generally must be filed within two years of the date on which the challenged act or omission occurred. [Code Civ. Proc., § 335.1.] However, unlike most personal injury actions, professional negligence actions against health care providers must be brought within “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” [Code Civ. Proc., § 340.5.]
The facts of any particular case for personal injury against a health care provider will determine whether the statute of limitations is lengthened, or shortened, by this holding. The case is Flores v. Presbyterian Intercommunity Hospital.
What is the statute of limitations on a promissory note? The statute of limitations for an action upon any contract, obligation or liability founded upon an instrument in writing is four years from breach per Code of Civil Procedure section 337. However, Commercial Code section 3118(a) provides a six-year statute of limitations for “an action to enforce the obligation of a party to pay a note payable at a definite time.” The period runs from “the due date or dates stated in the note.” Continue reading →
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 →
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 →
This case, Doe v. Doe, caught my eye because of the title. There are very few published cases entitled Doe v. Doe or Doe v. Roe. So, I had a look-see. The case is about the sexual molestation of a young parishioner by a Catholic priest and whether the case is time barred.
There are no salacious or illicit details and it’s a tedious read — probably only of interest to the Catholic Church and its childhood sexual abuse victims – because of the tortured history of the statute of limitations. The case turns on the question of whether Insurance Code section 11583 operates to toll the statute of limitations so that, under the specific facts of the case, plaintiff’s action was timely filed. Continue reading →