Statutory tolling of the statute of limitations in California under Code of Civil Procedure section 352

Statutory tolling of the statute of limitations in California under California Code of Civil Procedure section 352 is the topic of this blog post which is the second in a series that will discuss statutory tolling of the statute of limitations in California. 

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.

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The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. Visit the author's Facebook page at Visit my Facebook page

 

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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.