How Can You Navigate the Statute of Limitations in Personal Injury Cases?

Statutes of limitations are intended to allow parties to have sufficient notice and resources to move forward, but sometimes they are so short that claimants miss their chance. It is crucial to speak with an attorney as soon as you think you may have a case. If you have little or no time left, you may be unable to make a claim against a defendant, especially a corporate defendant with the resources to cause delays.

However, an attorney may also be able to make a strong argument that, in your own circumstances, you are still within your rights to sue.

For someone who has suffered a personal injury in California, the key questions are:

• What are the grounds for your lawsuit?
• When did it happen?
• When did you know it had happened—or when should you have known it?
• Who do you have a claim against?

The General Rule

For most personal injuries, a plaintiff has two years to file a lawsuit against a private party in California. This includes, among other grounds:

• Assault (except for sexual assault)
• Dog attacks
• Auto accidents
• Premises liability cases—injuries on other people’s property, including slip-and-fall cases
• Wrongful death (unless it involved medical malpractice)

See CCP § 335.1.

The two years are counted from the date of the injury, but they may also be counted from the date on which the claimant realized—or should have realized—that they were injured. This is called the discovery rule.

There is a separate statute of limitations for personal injury claims against the state or another “public entity” in California, which may include a state agency, a city or town, or any other political subdivision. The claimant must present their claim to the entity within six months of the cause of action. See Cal. Gov. Code § 911.2. If the government denies the claim, the claimant then has six months to file a civil lawsuit; if no notice is sent, the claimant has two years. See § 945.6.

Personal injury suits against the federal government also have a separate procedure and statute of limitations. A claimant has to present their claim to the agency or government subdivision within two years of the injury. If the government denies the claim or fails to respond within six months, the claimant may then file a lawsuit within the next six months. See 28 USC §§ 2401, 2675.

Tolling

Under certain circumstances, a California statute of limitations may be paused. Pausing the limitation period is called “tolling.” A statute of limitations may be tolled while:

• The defendant is out of state
• The plaintiff is a minor
• The plaintiff “lacks legal capacity to make decisions” if this disability existed at the time of the cause of action
• The plaintiff is incarcerated, unless the claim is related to the conditions of incarceration; the statute is tolled for up to two years
• The defendant is under an order of restitution related to the claim
• The plaintiff is under a “state of war”

See CCP § 351–357. Several other situations may toll the statute, including a delay that the defendant caused. Additionally, all civil limitation periods were tolled for four to six months during 2020. See Cal. R. app. I, Emergency Rule 9. However, a plaintiff’s youth, imprisonment, or incapacity may not toll the statute if a government entity is the defendant.

Medical Malpractice

A suit for injury or wrongful death arising from medical malpractice must be filed either—

• One year after the plaintiff discovers or, through reasonable diligence, should have discovered the injury; or
• Three years after the date of the injury

—whichever is earlier. See CCP § 340.5. The suit must, in any case, be filed within three years unless the plaintiff can prove fraud, intentional concealment, or the presence of a foreign object inside their body.

A minor has three years to file suit unless they are younger than six. In that case, the statute provides three years or until the minor’s eighth birthday, whichever is longer. If the minor’s parent/guardian colluded with the provider or insurer to prevent the lawsuit, then the statute is tolled for that period.

For a minor who suffered a birth injury, the statute provides six years to file a lawsuit. This period is not tolled by disability. See § 340.4.

Domestic Violence and Sexual Assault

A civil suit for injuries sustained from domestic violence must be filed within three years of the last act of violence or the date that the injury was discovered or reasonably should have been. See § 340.15.

An adult sexual assault victim has 10 years from the last act of assault or attempted assault or 3 years from the reasonable date of discovery. See § 340.16. It may be possible to file a claim for damages resulting from childhood sexual assault at any point before the plaintiff turns 40. See § 340.11. However, this is a complicated area of law, with several exceptions, extensions, and requirements.

Determining whether the case can still proceed requires an attorney’s careful review.

Finding Your Way

In California law, there can be many ways to argue against the strict application of a statute of limitations. Only an experienced personal injury attorney can analyze the matter and determine whether or not your case can go forward. Call our Encino offices today at 818-369-3270 to schedule your free consultation.