Some of the situations in which section 352 does not apply
are also discussed. The laws in the
State of California impose time limitations or deadlines to take legal action
which are known as the “statute of limitations” (SOL). If someone fails to fully settle their claim
or file a lawsuit within a certain time period, they will forever lose their
right to any recovery or other legal remedy against the other person, business
or entity if the SOL defense is asserted and proven as a defense to their lawsuit.
The statute of limitations laws in California are fixed and
very strict in their application unless
a particular exception applies. Knowledge
of the exceptions can mean all the difference in the world in certain
situations.
Some of the more common statutory exceptions are found in
sections 351 through 356 of the Code of Civil Procedure. This blog post will discuss only section 352.
Code of Civil Procedure § 352 states that “(a) If a person
entitled to bring an action, mentioned in Chapter 3 (commencing with Section
335) is, at the time the cause of action accrued either under the age of
majority or insane, the time of the disability is not part of the time limited
for the commencement of the action. (b) This section does not apply to an action
against a public entity or public employee upon a cause of action for which a
claim is required to be presented in accordance with Chapter 1 (commencing with
Section 900) or Chapter 2 (commencing with Section 910) of Part 3, or Chapter 3
(commencing with Section 950) of Part 4, of Division 3.6 of Title 1 of the
Government Code. This subdivision shall not apply to any claim presented to a
public entity prior to January 1, 1971.”
The first statutory exception in section 352 is that of a
plaintiff or claimant who is under the age of 18, meaning under the age of
majority. Family Code section 6500 specifies the age of majority, and section 7050(e)(4)
may also be applicable depending on the particular case. Under section 352 the statute of limitations
does not start running until the plaintiff or claimant turns eighteen years
old, or is emancipated by court order.
However this exception does not apply to a minor child injured before birth or in the course of birth, in those cases the SOL is six years after the date of birth pursuant to Code of Civil Procedure § 340.4.
The minority exception and the unborn exceptions do not
apply to:
1. Medical
malpractice cases in general which are instead regulated by Code of Civil
Procedure § 340.5; see also Photias v. Doerfler (1996) 45 Cal. App. 4th 1014,
1018-1020;
2. Uninsured
motorist cases which are governed by Insurance Code §11580.1(i)(1); see also Allstate
Ins. Co. v. Orlando (1968) 262 Cal.App.2d 858, 865;
3. Sexual abuse
cases which are now regulated by the tolling provisions specified in Code of
Civil Procedure §340.1, and
4. Government meaning
public entity claims generally, but there can be exceptions which are not
discussed in this blog post.
The second exception in section 352 is the mental disability
or incompetence of a plaintiff.
If plaintiff was “insane” also known as mentally incompetent
at the time of or because of the tortuous wrongdoing, the statute of
limitations is suspended for as long as the mental incompetence continues, even
if a guardian ad litem has been appointed. See Tzolov v. International Jet
Leasing, Inc. (1991) 232 Cal.App.3d 117, 120.
In the case of Feeley v. Southern Pacific Transportation Co.
(1991) 234 Cal.App.3d 949, 953 the plaintiff was in a coma for twelve days
after being knocked unconscious while on the defendant's premises. His suit,
filed one year and one day after the attack, was timely because the statute was
tolled while he was unconscious.
These SOL exceptions generally do not apply to Government or
public entity claims, but there are times when they may apply which are not
discussed in this blog post.
Attorneys or parties in California who would like to view portions
of over 200 sample legal documents for California and Federal litigation sold
by the author can use the following link: View over 200 sample legal documents
DISCLAIMER:
Please note that the author of this blog post, Stan Burman
is NOT an attorney and as such is unable to provide any specific legal advice.
The author is NOT engaged in providing any legal, financial, or other
professional services, and any information contained in this blog post is NOT intended
to constitute legal advice.
These materials and information contained in this blog post
have been prepared by Stan Burman for informational purposes only and are not
legal advice. Transmission of the information contained in this blog post is
not intended to create, and receipt does not constitute, any business
relationship between the author and any readers. Readers should not act upon
this information without seeking professional counsel.
