CACI 338 Affirmative Defense—Statute of Limitations

California Civil Jury Instructions CACI

338 Affirmative Defense—Statute of Limitations

[Name of defendant] contends that [name of plaintiff]’s lawsuit was not filed within the time set by law. To succeed on this defense, [name of defendant] must prove that [name of plaintiff]’s claimed harm occurred before [insert date two or four years before date of filing].

Directions for Use

This instruction is for use if the defendant claims that the plaintiff’s action was not filed within the applicable four-year period for breach of a written contract (see Code Civ. Proc., § 337(1)) or two-year period for breach of an oral contract. (See Code Civ. Proc., § 339(1).) Do not use this instruction for breach of a California Uniform Commercial Code sales contract. (See Com. Code, § 2725.)

If the contract either shortens or extends the limitation period, use the applicable period from the contract instead of two years or four years.

If the plaintiff alleges that the delayed-discovery rule applies to avoid the limitation defense, CACI No. 455, Statute of Limitations—Delayed Discovery, may be adapted for use.

Sources and Authority

Four-Year Statute of Limitations: Contract. Code of Civil Procedure section 337(a).

Two-Year Statute of Limitations: Contract. Code of Civil Procedure section 339(1).

“In general, California courts have permitted contracting parties to modify the length of the otherwise applicable California statute of limitations, whether the contract has extended or shortened the limitations period.” (Hambrecht & Quist Venture Partners v. Am. Medical Internat. (1995) 38 Cal.App.4th 1532, 1547 [46 Cal.Rptr.2d 33].)

“A contract cause of action does not accrue until the contract has been breached.” (Spear v. Cal. State Automobile Assn. (1992) 2 Cal.4th 1035, 1042 [9 Cal.Rptr.2d 381, 831 P.2d 821].)

“The claim accrues when the plaintiff discovers, or could have discovered through reasonable diligence, the injury and its cause.” (Angeles Chem. Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 119 [51 Cal.Rptr.2d 594].)

“[T]he discovery rule may be applied to breaches [of contract] which can be, and are, committed in secret and, moreover, where the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a future time.” (Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, 4–5 [131 Cal.Rptr.2d 680].)

Secondary Sources

3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 508–548
5 Witkin, California Procedure (5th ed. 2008) Pleading, § 1072
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 345
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.42[2] (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.120 et seq. (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining Applicable Statute of Limitations and Effect on Potential Action, 4.03 et seq.