When to File a Lawsuit

When to Sue

Deciding when to sue someone based on a personal injury can be confusing even for some attorneys. There are so many nuances to the law and exceptions to consider when calculating the time limit to file a lawsuit. This time limit is referred to as the “statute of limitations“. Civil actions may only be commenced within the periods prescribed by law, unless the defendant is stopped to raise such defense for equitable reasons or waives the defense through failure to allege it by demurrer or answer. Hence, a first consideration in deciding to sue is determining when a suit must be filed to avoid a statute of limitations bar.

Generally, the statute of limitations for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” is two-years. (CCP § 335.1.) Some personal injury actions are subject to a one-year statute of limitations—including actions for libel, slander and false imprisonment. (CCP § 340(c).) For government claims, you must file your administrative claim within 6 months of the date of accrual of the cause of action.

California Government Code Section 911.2(a) states:

“A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented…not later than six months after the accrual of the cause of action…”

How long is six months?   Probably six calendar months or 182 days, whichever is longer.  See Government Code Sections 6803-6804 and cases that interpreted Section 6803-6804 such as Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 605-606.  But since the time computation method of Govt. Code Section 911.2 might not yet have been been specifically interpreted by case law, to be safe, one should calculate the shorter time period of the two dates.

What is the date of presentation (i.e. the filing date)? If you deliver the claim in person, the presentation/filing date is the delivery date. If you mail the claim, the presentation/filing date is the date of mailing (and not the date of receipt).  If the claim is mailed, it is usually recommended that it be mailed via certified mail with return receipt requested.

The § 335.1 period—like any statute of limitations—begins to run when the cause of action “accrues.”

Ordinarily, a cause of action “accrues” when, under the substantive law, the wrongful act is committed and the liability arises; or, stated another way, upon occurrence of the last fact essential to the cause of action. It is immaterial that plaintiff may be ignorant of the cause of action or of the tortfeasor’s identity. (See generally, Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 C4th 797, 807-809, 27 CR3d 661, 667-669; Norgart v. Upjohn Co.(1999) 21 C4th 383, 397, 87 CR2d 453, 463.)

Under some situations, accrual of a cause of action may be delayed until the plaintiff discovers the facts constituting the cause of action or, as a reasonable person, should have been put on inquiry that his or her injury was caused by tortious wrongdoing. This is the so-called “delayed discovery rule,” which virtually swallows up the general rule measuring accrual from the date the wrongful act occurred. (See generally, Fox v. Ethicon Endo-Surgery, Inc., supra, 35 C4th at 807-809, 27 CR3d at 667-669; Norgart v. Upjohn Co., supra, 21 C4th at 397-398, 87 CR2d at 463; and Civ.C. § 19—“Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact.”)

Specifically, the “delayed discovery rule” postpones accrual of the cause of action until plaintiff suspects or reasonably should suspect (i) that he or she has been injured, (ii) the cause of injury, and (iii) the tortious nature of the conduct causing the injury. Plaintiff’s knowledge is measured both subjectively and objectively: i.e., plaintiff is held to his or her actual knowledge, as well as knowledge that could be discovered through reasonable investigation after being put on inquiry. (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 C4th at 807-809, 27 CR3d 667-669; Norgart v. Upjohn Co., supra, 21 C4th at 398, 87 CR2d at 463-464.) Accrual is also delayed where defendant fraudulently concealed facts that would have led plaintiff to discover a potential cause of action. Here, the cause of action accrues when plaintiff actually discovers or is put on “inquiry notice” of the operative facts. (Community Cause v. Boatwright (1981) 124 CA3d 888, 900-902, 177 CR 657, 664-665; see Sun ‘N Sand, Inc. v. United Calif. Bank (1978) 21 C3d 671, 701-702, 148 CR 329, 350.)

The statute continues to run from the point of accrual until the complaint is filed. But so long as the complaint is filed within the applicable period, it is immaterial that the summons and complaint are not served until after the limitations period has run. (CCP § 350; Marriage of Flack (1988) 200 CA3d 18, 21, 245 CR 745, 746-747.)

Please keep in mind, the above is intended for informational purposes only and is not intended to constitute legal advice. Please contact our offices for a free consultation if you or a loved one were injured in an accident. Contact us day or night.

Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.