CACI 457 Statute of Limitations—Equitable Tolling—Other Prior Proceeding

New December 2009; Revised December 2014

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Equitable tolling, including any disputed issue of fact, is to be decided by the court, even if there are disputed issues of fact. (Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 745 [170 Cal.Rptr.3d 551].) This instruction is for use if the court submits the issue to the jury for advisory findings.

Equitable tolling is not available for legal malpractice (see Laird v. Blacker (1992) 2 Cal.4th 606, 618 [7 Cal.Rptr.2d 550, 828 P.2d 691] [statutory tolling provisions of Code Civ Proc., § 340.6 are exclusive for both one-year and four-year limitation periods]; see also 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) nor for medical malpractice with regard to the three-year limitation period of Code of Civil Procedure section 340.5. (See Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [statutory tolling provisions of Code Civ. Proc., § 340.5 are exclusive only for three-year period; one-year period may be tolled on other grounds]; see also 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.)

•Tolling for Equal Employment Opportunity Commission Investigation. Government Code section 12965(d)(1).

•“The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine. It is ‘designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations—timely notice to the defendant of the plaintiff’s claims—has been satisfied.’ Where applicable, the doctrine will ‘suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.’ ” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 [84 Cal.Rptr.3d 734, 194 P.3d 1026], internal citations omitted.)

•“The purpose of equitable tolling is to ‘ease[] the pressure on parties “concurrently to seek redress in two separate forums with the attendant danger of conflicting decisions on the same issue.” ’ It is intended to benefit the court system ‘by reducing the costs associated with a duplicative filing requirement, in many instances rendering later court proceedings either easier and cheaper to resolve or wholly unnecessary.’ ” (Long v. Forty Niners Football Co. (2019) 33 Cal.App.5th 550, 555 [244 Cal.Rptr.3d 887], internal citation omitted.)

•“While the case law is not entirely clear, it appears that the weight of authority supports our conclusion that whether a plaintiff has demonstrated the elements of equitable tolling presents a question of fact.” (Hopkins, supra, 225 Cal.App.4th at p. 755.)

•“[E]quitable tolling, ‘[a]s the name suggests … is an equitable issue for court resolution.’ ” (Hopkins, supra, 225 Cal.App.4th at p. 745.)

•“While the judge determines equitable causes of action, the judge may (in rare instances) empanel an advisory jury to make preliminary factual findings. The factual findings are purely advisory because, on equitable causes of action, the judge is the proper fact finder. ‘[W]hile a jury may be used for advisory verdicts as to questions of fact [in equitable actions], it is the duty of the trial court to make its own independent findings and to adopt or reject the findings of the jury as it deems proper.’ ” (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156 [85 Cal.Rptr.3d 337], internal citations omitted.)

•“[CACI No. 457 is] appropriate for use when a trial court ‘empanel[s] an advisory jury to make preliminary factual findings,’ with respect to equitable … tolling.” (Hopkins, supra, 225 Cal.App.4th at p. 745.)

•“The equitable tolling doctrine rests on the concept that a plaintiff should not be barred by a statute of limitations unless the defendant would be unfairly prejudiced if the plaintiff were allowed to proceed. ‘[T]he primary purpose of the statute of limitations is normally satisfied when the defendant receives timely notification of the first of two proceedings.’ ” (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 598 [95 Cal.Rptr.3d 18], internal citations omitted.)

•“Broadly speaking, the doctrine applies ‘ “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.” ’ [Citation.] Thus, it may apply where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason.” (Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 853 [234 Cal.Rptr.3d 712].)

•“[T]he effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded. As a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370–371 [2 Cal.Rptr.3d 655, 73 P.3d 517].)

•“A major reason for applying the doctrine is to avoid ‘the hardship of compelling plaintiffs to pursue several duplicative actions simultaneously on the same set of facts.’ ‘[D]isposition of a case filed in one forum may render proceedings in the second unnecessary or easier and less expensive to resolve.’ ” (Guevara v. Ventura County Community College Dist. (2008) 169 Cal.App.4th 167, 174 [87 Cal.Rptr.3d 50], internal citations omitted.)

•“[A]pplication of the doctrine of equitable tolling requires timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff. These elements seemingly are present here. As noted, the federal court, without prejudice, declined to assert jurisdiction over a timely filed state law cause of action and plaintiffs thereafter promptly asserted that cause in the proper state court. Unquestionably, the same set of facts may be the basis for claims under both federal and state law. We discern no reason of policy which would require plaintiffs to file simultaneously two separate actions based upon the same facts in both state and federal courts since ‘duplicative proceedings are surely inefficient, awkward and laborious.’ ” (Addison v. State (1978) 21 Cal.3d 313, 319 [146 Cal.Rptr. 224, 578 P.2d 941], internal citations omitted.)

•“ ‘ “The timely notice requirement essentially means that the first claim must have been filed within the statutory period. Furthermore[,] the filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim. Generally this means that the defendant in the first claim is the same one being sued in the second.” “The second prerequisite essentially translates to a requirement that the facts of the two claims be identical or at least so similar that the defendant’s investigation of the first claim will put him in a position to fairly defend the second.” “The third prerequisite of good faith and reasonable conduct on the part of the plaintiff is less clearly defined in the cases. But in Addison v. State of California, supra, 21 Cal.3d 313[,] the Supreme Court did stress that the plaintiff filed his second claim a short time after tolling ended.” ’ ” (McDonald, supra, 45 Cal.4th at p. 102, fn. 2, internal citations omitted.)

•“The third requirement of good faith and reasonable conduct may turn on whether ‘a plaintiff delayed filing the second claim until the statute on that claim had nearly run …’ or ‘whether the plaintiff [took] affirmative actions which … misle[d] the defendant into believing the plaintiff was foregoing his second claim.’ ” (Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1505 [92 Cal.Rptr.3d 131].)

•“Where exhaustion of an administrative remedy is mandatory prior to filing suit, equitable tolling is automatic: ‘It has long been settled in this and other jurisdictions that whenever the exhaustion of administrative remedies is a prerequisite to the initiation of a civil action, the running of the limitations period is tolled during the time consumed by the administrative proceeding.’ This rule prevents administrative exhaustion requirements from rendering illusory nonadministrative remedies contingent on exhaustion.” (McDonald, supra, 45 Cal.4th at p. 101, internal citation omitted.)

•“The trial court rejected equitable tolling on the apparent ground that tolling was unavailable where, as here, the plaintiff was advised the alternate administrative procedure he or she was pursuing was voluntary and need not be exhausted. In reversing summary judgment, the Court of Appeal implicitly concluded equitable tolling is in fact available in such circumstances and explicitly concluded equitable tolling is not foreclosed as a matter of law under the FEHA. The Court of Appeal was correct on each count.” (McDonald, supra, 45 Cal.4th at p. 114.)

•“Equitable tolling and equitable estoppel [see CACI No. 456] are distinct doctrines. ‘ “Tolling, strictly speaking, is concerned with the point at which the limitations period begins to run and with the circumstances in which the running of the limitations period may be suspended. … Equitable estoppel, however, … comes into play only after the limitations period has run and addresses … the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period. [Equitable estoppel] is wholly independent of the limitations period itself and takes its life … from the equitable principle that no man [may] profit from his own wrongdoing in a court of justice.” ’ ” (Lantzy, supra, 31 Cal.4th at pp. 383–384.)

•“[V]oluntary abandonment [of the first proceeding] does not categorically bar application of equitable tolling, but it may be relevant to whether a plaintiff can satisfy the three criteria for equitable tolling.” (McDonald, supra, 45 Cal.4th at p. 111.)

•“The equitable tolling doctrine generally requires a showing that the plaintiff is seeking an alternate remedy in an established procedural context. Informal negotiations or discussions between an employer and employee do not toll a statute of limitations under the equitable tolling doctrine.” (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416 [159 Cal.Rptr.3d 749], internal citation omitted.)

•“Tolling the FEHA limitation period while the employee awaits the outcome of an EEOC investigation furthers several policy objectives: (1) the defendant receives timely notice of the claim; (2) the plaintiff is relieved of the obligation of pursuing simultaneous actions on the same set of facts; and (3) the costs of duplicate proceedings often are avoided or reduced.” (Mitchell v. State Dept. of Public Health (2016) 1 Cal.App.5th 1000, 1008 [205 Cal.Rptr.3d 261].)

•“ ‘[P]utative class members would be ill advised to rely on the mere filing of a class action complaint to toll their individual statute of limitations.’ A trial court may, nonetheless, apply tolling to save untimely claims. But in doing so, the court must address ‘two major policy considerations.’ The first is ‘protection of the class action device,’ which requires the court to determine whether the denial of class certification was ‘unforeseeable by class members,’ or whether potential members, in anticipation of a negative ruling, had already filed ‘ “protective motions to intervene or to join in the event that a class was later found unsuitable,” depriving class actions “of the efficiency and economy of litigation which is a principal purpose of the procedure.” ’ The second consideration is ‘effectuation of the purposes of the statute of limitations,’ and requires the court to determine whether commencement of the class suit ‘ “notifie[d] the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” [Citation.] In these circumstances, … the purposes of the statute of limitations would not be violated by a decision to toll.’ ” (Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, 482–483 [216 Cal.Rptr.3d 390], internal citations omitted.)

•“Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive period be tolled except under those circumstances specified in the statute. Thus, the Legislature expressly intended to disallow tolling under any circumstances not enumerated in the statute.” (Laird, supra, 2 Cal.4th at p. 618 [applying rule to one-year limitation period].)

•“We see no reason to apply the second sentence of section 340.5 to the one-year period it does not mention, in addition to the three-year period it does mention. The general purpose of MICRA does not require us to expand that sentence beyond its language.” (Belton, supra, 20 Cal.4th at p. 934 [rejecting application of rule to one-year limitation period].)

•“[E]quitable tolling has never been applied to allow a plaintiff to extend the time for pursuing an administrative remedy by filing a lawsuit. Despite broad language used by courts in employing the doctrine, equitable tolling has been applied almost exclusively to extend statutory deadlines for judicial actions, rather than deadlines for commencing administrative proceedings.” (Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100, 1109 [150 Cal.Rptr.3d 405].)

•“Plaintiffs cite no authority, and we are aware of none, that would allow a plaintiff in one case to equitably toll the limitation period based on the filing of a stranger’s lawsuit.” (Reid v. City of San Diego (2018) 23 Cal.App.5th 901, 916 [234 Cal.Rptr.3d 636].)

•“Equitable tolling applies to claims under FEHA during the period in which the plaintiff exhausts administrative remedies or when the plaintiff voluntarily pursues an administrative remedy or nonmandatory grievance procedure, even if exhaustion of that remedy is not mandatory.” (Wassmann, supra, 24 Cal.App.5th at pp. 853–854.)