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Statutes of limitations: what you need to know

By March 20, 2020No Comments

Currently, the courts in California are, shall we say, a little in disarray because of the coronavirus. Most jurisdictions are closed in some fashion or another, some are sort of open, to differing degrees of effectiveness (See Orange County, Headline: “Complete Chaos“).  The declaration yesterday from Governor Newsom has only further muddied the waters, though we anticipate that in the coming days, as presiding judges from each Superior Court discuss, we will be getting clarification.

So what do we do in order to meet our statues of limitations for our incoming cases? It depends.

Government Claim Statutes

For any case involving a government entity, the governmental claim form has to be filed with and pursuant to each individual entity’s guidelines within 6 months of the date of loss for state and local claims within California. To meet the governmental claims form statute, the claim form must be sent in a sealed envelope postmarked within the statute to ensure delivery to the entity no later than the 6 month deadline. We have heard accounts of firms shoving the forms under the locked doors of their respective jurisdictions! We don’t need to go to that extreme. We do, however, have to make sure that, as long as the USPS is operating, we ensure that claim form deadlines are complied with in regular due course.

Statute of Limitations Filing in State Courts

For non-government cases, we need to file our suits though the courts directly. In California, most of them are for all intents and purposes closed. Here is our plan of action for statutes.  First, we will work with our vendor partners to determine what the current situation is on the ground at the Clerk’s Office of the relevant jurisdiction to see if filing is even possible.  If it is possible, we will file the pleading as we normally would to protect the statute.

If the Clerk’s Office is not accepting new filings and is closed we are currently researching a plan to defer to the code on court holidays, which follows:

  1. THE STATUTE IS TOLLED (paused) UNTIL “THE NEXT DAY THE COURT IS OPEN FOR BUSINESS.” – The suit must be filed on the very first day the court is open. In due diligence, we will be including in our pleadings that the statute of limitations was not met due to coronavirus. We, along with our process servers, will be keeping a very watchful eye on all jurisdictions and their decisions as to when they will reopen, or cancel their “holiday.”
  2. THE STATUTE OF LIMITATIONS IS TOLLED UNTIL THE FIRST DAY THE COURT IS OPEN IF THE LAST DAY TO FILE IS A WEEKEND, HOLIDAY, OR DURING AN EMERGENCY COURT CLOSURE: See: Code of Civil Procedure Sections 10, 12, 12a, 12b, and 135; Government Code Section 6700. See also Mink v. Superior Court (1992) 2 Cal. App. 4th 1338, 1342; Tran v. Fountain Valley Community Hospital (1997) 51 Cal. App. 4th 1464, 1466. “If any city, county, state, or public office, other than a branch office, is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday for the purposes of computing time under Sections 12 and 12a.” Code of Civil Procedure Section 12b. [For a discussion of the term “other than a branch office”, see Bennett v. Suncloud (1997) 56 Cal.App.4th 91,98-99 where an earthquake closed the branch court but not the main court where the lawsuit could have been filed on time – thus, no extension of time was granted.
  3. PLEADING STATUTE OF LIMITATIONS EXCEPTIONS IN THE COMPLAINT: Where the complaint’s allegations or judicially noticeable facts reveal the existence of an affirmative defense [e.g. statute of limitations], the “plaintiff must plead around’ the defense, by alleging specific facts that would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action ….” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) ¶ 6:179, p. 6-39, citing Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922, 259 Cal. Rptr. 117, and Spray, Gould & Bowers v. Associated Int’l Ins. Co. (1999) 71 Cal. App.4th 1260, 1266, fn. 4, 84 Cal.Rptr.2d 552. (“[W]hen a complaint shows on its face (or with the help of judicially noticed facts) that a pleaded cause of action is apparently barred by the statute of limitations, plaintiff must plead facts which show an excuse, tolling, or other basis for avoiding the statutory bar.

Of course, this is a first impression situation and we are being fluid and hope, in coming days, the courts will give us specific guidelines that govern this situation.

We will be monitoring the situation and will post updates here as they come in.

Be Safe!