CACI 455 Statute of Limitations—Delayed Discovery

California Civil Jury Instructions CACI

455 Statute of Limitations—Delayed Discovery

If [name of defendant] proves that [name of plaintiff]’s claimed harm occurred before [insert date from applicable statute of limitations], [name of plaintiff]’s lawsuit was still filed on time if [name of plaintiff] proves that before that date,

[[name of plaintiff] did not discover, and did not know of facts that would have caused a reasonable person to suspect, that [he/she/nonbinary pronoun/it] had suffered harm that was caused by someone’s wrongful conduct.]


[[name of plaintiff] did not discover, and a reasonable and diligent investigation would not have disclosed, that [specify factual basis for cause of action, e.g., “a medical device” or “inadequate medical treatment”] contributed to [name of plaintiff]’s harm.]

New April 2007; Revised December 2007, April 2009, December 2009, May 2020

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Directions for Use

Read this instruction with the first option after CACI No. 454, Affirmative Defense—Statute of Limitations, if the plaintiff seeks to overcome the statute-of-limitations defense by asserting the “delayed-discovery rule” or “discovery rule.” The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of the plaintiff’s injury and its negligent cause. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 [245 Cal.Rptr. 658, 751 P.2d 923].) The date to be inserted is the applicable limitation period before the filing date. For example, if the limitation period is two years and the filing date is August 31, 2009, the date is August 31, 2007.

If the facts suggest that even if the plaintiff had conducted a timely and reasonable investigation, it would not have disclosed the limitation-triggering information, read the second option. (See Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4th 797 [27 Cal.Rptr.3d 661, 110 P.3d 914] [fact that plaintiff suspected her injury was caused by surgeon’s negligence and timely filed action for medical negligence against health care provider did not preclude “discovery rule” from delaying accrual of limitations period on products liability cause of action against medical staple manufacturer whose role in causing injury was not known and could not have been reasonably discovered within the applicable limitations period commencing from date of injury].)

See also verdict form CACI No. VF-410, Statute of Limitations—Delayed Discovery—Reasonable Investigation Would Not Have Disclosed Pertinent Facts.

Do not use this instruction for medical malpractice (see CACI No. 555, Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit, and CACI No. 556, Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit) or attorney malpractice (see CACI No. 610, Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit, and CACI No. 611, Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit). Also, do not use this instruction if the case was timely but a fictitiously named defendant was identified and substituted in after the limitation period expired. (See McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942 [63 Cal.Rptr.3d 615] [if lawsuit is initiated within the applicable period of limitations against one party and the plaintiff has complied with Code of Civil Procedure section 474 by alleging the existence of unknown additional defendants, the relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed].)

“Claimed harm” refers to all of the elements of the cause of action, which must have occurred before the cause of action accrues and the limitation period begins. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1029 [98 Cal.Rptr.2d 661].) In some cases, it may be necessary to modify this term to refer to specific facts that give rise to the cause of action.

Sources and Authority

“An exception to the general rule for defining the accrual of a cause of action—indeed, the ‘most important’ one—is the discovery rule. … It postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [¶] … [T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least ‘suspects … that someone has done something wrong’ to him, ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding.’ He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. He has reason to suspect when he has ‘notice or information of circumstances to put a reasonable person on inquiry’; he need not know the ‘specific “facts” necessary to establish’ the cause of action; rather, he may seek to learn such facts through the ‘process contemplated by pretrial discovery’; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place—he ‘cannot wait for’ them to ‘find him’ and ‘sit on’ his ‘rights’; he ‘must go find’ them himself if he can and ‘file suit’ if he does.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397–398 [87 Cal.Rptr.2d 453, 981 P.2d 79], original italics, internal citations and footnote omitted.)

“[I]t is the discovery of facts, not their legal significance, that starts the statute.” (Jolly, supra, 44 Cal.3d at p. 1113.)

Jolly ‘sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. [Citation.] The first to occur under these two tests begins the limitations period.’ ” (Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1552 [178 Cal.Rptr.3d 897].)

“While ignorance of the existence of an injury or cause of action may delay the running of the statute of limitations until the date of discovery, the general rule in California has been that ignorance of the identity of the defendant is not essential to a claim and therefore will not toll the statute.” (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932 [30 Cal.Rptr.2d 440, 873 P.2d 613].)

“[U]nder the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action. In that case, the statute of limitations for that cause of action will be tolled until such time as a reasonable investigation would have revealed its factual basis.” (Fox, supra, 35 Cal.4th at p. 803.)

“[A]s Fox teaches, claims based on two independent legal theories against two separate defendants can accrue at different times.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1323 [64 Cal.Rptr.3d 9].)

“A limitation period does not begin until a cause of action accrues, i.e., all essential elements are present and a claim becomes legally actionable. Developed to mitigate the harsh results produced by strict definitions of accrual, the common law discovery rule postpones accrual until a plaintiff discovers or has reason to discover the cause of action.” (Glue-Fold, Inc., supra, 82 Cal.App.4th at p. 1029, internal citations omitted.)

“A plaintiff’s inability to discover a cause of action may occur ‘when it is particularly difficult for the plaintiff to observe or understand the breach of duty, or when the injury itself (or its cause) is hidden or beyond what the ordinary person could be expected to understand.’ ” (NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1232 [171 Cal.Rptr.3d 1].)

“[T]he plaintiff may discover, or have reason to discover, the cause of action even if he does not suspect, or have reason to suspect, the identity of the defendant. That is because the identity of the defendant is not an element of any cause of action. It follows that failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action, whereas a like failure concerning the cause of action itself does. ‘Although never fully articulated, the rationale for distinguishing between ignorance’ of the defendant and ‘ignorance’ of the cause of action itself ‘appears to be premised on the commonsense assumption that once the plaintiff is aware of’ the latter, he ‘normally’ has ‘sufficient opportunity,’ within the ‘applicable limitations period,’ ‘to discover the identity’ of the former. He may ‘often effectively extend[]’ the limitations period in question ‘by the filing’ and amendment ‘of a Doe complaint’ and invocation of the relation-back doctrine. ‘Where’ he knows the ‘identity of at least one defendant … , [he] must’ proceed thus.” (Norgart, supra, 21 Cal.4th at p. 399, internal citations and footnote omitted.)

“The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have ‘ “ ‘information of circumstances to put [them] on inquiry’ ” ’ or if they have ‘ “ ‘the opportunity to obtain knowledge from sources open to [their] investigation.’ ” ’ In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Fox, supra, 35 Cal.4th at pp. 807–808, internal citations omitted.)

“Thus, a two-part analysis is used to assess when a claim has accrued under the discovery rule. The initial step focuses on whether the plaintiff possessed information that would cause a reasonable person to inquire into the cause of his injuries. Under California law, this inquiry duty arises when the plaintiff becomes aware of facts that would cause a reasonably prudent person to suspect his injuries were the result of wrongdoing. If the plaintiff was in possession of such facts, thereby triggering his duty to investigate, it must next be determined whether ‘such an investigation would have disclosed a factual basis for a cause of action[.] [T]he statute of limitations begins to run on that cause of action when the investigation would have brought such information to light.’ ” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251 [162 Cal.Rptr.3d 617], internal citation omitted.)

“[I]f continuing injury from a completed act generally extended the limitations periods, those periods would lack meaning. Parties could file suit at any time, as long as their injuries persisted. This is not the law. The time bar starts running when the plaintiff first learns of actionable injury, even if the injury will linger or compound. ‘ “ ‘[W]here an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date … .’ ” ’ ” (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 745 [129 Cal.Rptr.3d 354], original italics, internal citation omitted.)

“[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.’ ” (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 73 [215 Cal.Rptr.3d 835].)

“[T]he trial court erred in concluding that the discovery rule did not pertain to the limitations period of section 335.1 for medical battery claims.” (Daley v. Regents of University of California (2019) 39 Cal.App.5th 595, 606 [252 Cal.Rptr.3d 273].)

There is no doctrine of constructive or imputed suspicion arising from media coverage. “[Defendant]’s argument amounts to a contention that, having taken a prescription drug, [plaintiff] had an obligation to read newspapers and watch television news and otherwise seek out news of dangerous side effects not disclosed by the prescribing doctor, or indeed by the drug manufacturer, and that if she failed in this obligation, she could lose her right to sue. We see no such obligation.” (Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th 1202, 1206 [48 Cal.Rptr.3d 668].)

“The statute of limitations does not begin to run when some members of the public have a suspicion of wrongdoing, but only ‘[o]nce the plaintiff has a suspicion of wrongdoing.’ ” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364 [76 Cal.Rptr.3d 146], original italics.)

“Generally, the bar of the statute of limitations is raised as an affirmative defense, subject to proof by the defendant. [¶] However, when a plaintiff relies on the discovery rule or allegations of fraudulent concealment as excuses for an apparently belated filing of a complaint, ‘the burden of pleading and proving belated discovery of a cause of action falls on the plaintiff.’ ” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 174 [144 Cal.Rptr.3d 522].)

“ ‘[R]esolution of the statute of limitations issue is normally a question of fact … .’ ” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487 [59 Cal.Rptr.2d 20, 926 P.2d 1114].)

“More specifically, as to accrual, ‘once properly pleaded, belated discovery is a question of fact.’ ” (Nguyen, supra, 229 Cal.App.4th at p. 1552.)

Secondary Sources

3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 493–507, 553–592, 673
Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, When To Sue—Statute Of Limitations, ¶¶ 5:108–5:111.6 (The Rutter Group)
5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal of Tort Actions, § 71.03[3] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions, § 345.19[3] (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, §§ 143.47, 143.52 et seq.  (Matthew Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4, Limitation of Actions, 4.15
McDonald, California Medical Malpractice: Law and Practice §§ 7:1–7:7 (Thomson Reuters)