Suing Within the Statute of Limitation | California
Updated: Dec 19, 2022
Statute of limitation (SOL) refers to the time period within which certain kinds of legal action may be brought. Statutes of limitation differ depending on the jurisdiction and the type of legal claim. For example, many U.S. states require a personal injury lawsuit be filed within one year from the date of injury, but some allow two years. As with most elements of law, litigants should consult the rules for their jurisdiction to find the timelines that apply to their particular cause of action (claim type).
Here are some common legal claim types and the different SOL for each:
Breach of contract
Oral (verbal) contracts: 2 years from the day the contract was broken
Written contracts: 4 years from the day the contract was broken
Written contracts do not require formal legal language. A signed work order or an agreement scrawled on scratch paper can still be considered a written contract.
2 years from the date of injury
Assault and battery
2 years from the date of the event
Personal or real property damage
3 years from the date of damage, OR
10 years from the date of damage if property damage was caused by latent defects in the planning, construction, or improvement of real property.
3 years from the date of the discovery of the fraud
Libel and slander
Professional negligence against health care providers
3 years after the date of the injury, OR
1 year from the discovery by the plaintiff or from the time the plaintiff should have discovered it through reasonable diligence
Suits against government agencies
Before you can sue any city, county, or state government, you must file a claim form within
6 months, for personal injury and/or damage to personal property, OR
1 year, for breach of contract and/or damage to real property
If the government entity rejects your claim, you have an additional 6 months to file the lawsuit. If the government does not act on your claim, you have 2 years from when you first had the right to sue to file your case in small claims court.
For a full list of SOL in CA, please refer toCal. Civ. Proc. Code §§ 312–366.3.
Now that you know your SOL period, let's talk about how to calculate the SOL. You will want to know the key event date that determines the date to start counting. The key event dates will change depending on the claim type and generally are:
Date of injury
Date of damage
Date of discovery
Date when the contract was broken
Date of the event (assault, battery, libel, slander, false imprisonment, etc)
For most claim types, you can calculate whether you are within the SOL by taking the key event dates and adding the number of years onto that event date to calculate the amount of time you have to take a case to court. For example, you have a written loan agreement dated on Jun 1st, 2019, with the other party agreeing to pay you back on Dec 31st, 2019. The other party did not pay you back on Dec 31st, 2019, which means you have until Dec 31st, 2023 (SOL is 4 years for written contracts) to sue in small claims court for repayment.
For installment contracts, the SOL will apply for each of the installments. For example, if a written contract loan is to be paid back in 5 separate payments—5 installments of $1000 each—to be paid monthly starting January 1st, 2019. If the borrower fails to pay the first payment, you have until Jan 1st, 2023 (SOL is 4 years for written contracts) to sue in small claims court for the first payment. If the borrower fails to pay the second payment due to Feb 1st, 2019, then you have until Feb 1st, 2023 to sue in small claims court for the second payment. If you sued on January 15th, 2023, the January missed payment would fall outside of SOL, but the February payment would be within SOL.
How SOL affects damages
SOL is important in calculating damages because it's unlikely that you will be able to recover damages that are outside of SOL. Using the same example as previously on installment loans, if you don't take the case to small claims court until Jan 15th, 2023, you may not be able to recover the first missed payment, although you will be able to recover the second missed payment, as you are still within that event’s SOL.
If the plaintiff does not sue the defendant in time (the case is outside of the statute of limitation), the defendant can bring up this procedural defense to argue that they owe the plaintiff less.
Examples of the statute of limitation:
Case date: 4/1/2022; written contract;
- Due date: 4/1/2019, $1000 ➡ ✅ In SOL
- Total owed: $1000
Case date: 4/1/2022; written contract
- Due date: 3/1/2018, $500 ➡❌ Out of SOL
- Total owed: $0
Case date: 4/1/2022; written contract
- Due date: 3/1/2018, $1000 owed ➡❌ Out of SOL
- Due date: 3/1/2019, $500 owed ➡ ✅ In SOL
- Total owed: $500
Note that it is up to the defendant to bring up the statute of limitation defense. If it's not raised by the defendant, the judge may include the amount owed that is outside of the statute of limitation.
NEED HELP WITH YOUR JUSTICE JOURNEY?
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*Currently, JusticeDirect can only help litigants sue in California’s small claims court.