WHEN DOES MY STATUTE EXPIRE? LET ME COUNT THE DAYS.
Mark E. Hancock
A brief visit to legal websites like Avvo.com will demonstrate that there is some confusion among practitioners about just when a statute of limitations will expire. Two schools of thought have been: counting the days and the anniversary method. Now, thanks to the California Supreme Court and its decision in Shalabi v. City of Fontana (2021 WL 2908526), there should be more certainty about how a statute of limitations is calculated and when it expires. So, just how does one calculate a statute of limitations?
According to California Supreme Court, a statute of limitations sets the maximum time in which to initiate legal proceedings. Under Code of Civil Procedure (“C.C.P.”) § 12, the general rule for computing the time in which any act required by law is to be done (which includes the filing of an action) is computed by excluding the first day and including the last, except where the last day is also a holiday and then it is also excluded. The Court stated both that this uniform rule promotes clarity and stability and that there must be a clearly expressed intention to take something out of this general rule, and to provide for a different method of computing time, before the general rule will not apply. Specifically, the Court cited to In re Anthony B. (2002) 104 Cal.App.4th 677, 682 for the proposition that: “’[a]bsent a compelling reason for a departure,[section 12] governs the calculation of all statutorily prescribed time periods.’”
While the Shalabi case specifically involved calculation of the 2 year statute for personal injury and wrongful death in a 1983 action brought by a plaintiff, who had been a minor when his father was killed but had since turned 18, it is clear from the case that the holding applies generally. In fact, the Court stated: “[S]uch a construction [i.e, their holding that the general rule applies] ensure[s] that a plaintiff minor receives the same first day exclusion benefit as a plaintiff adult whose action has accrued …[and] it also avoids creating an exception to the generally applicable rule.”
In Shalabi, the plaintiff turned 18 on December 3, 2011 and his lawsuit was filed on December 3, 2013. One following the anniversary method might ask: “so what is the time problem?” Well, in a case of hair-splitting, spanning nearly a decade, that went all the way to the highest State Court, the defense argued:
1. when a cause of action accrues on a partially spent day that day is excluded under C.C.P. § 12, but
2. when a cause of action accrues on the first minute of a day, that day should be included, and
3. an individual always turns 18 on the first minute of his or her birthday,
4. ergo, one should count from December 3, 2011 [and not from December 4).
The California Supreme Court rejected this argument and attempt to create an exception, holding that the plain language of C.C.P. § 12 does not limit the first day exclusion rule to partially spent days. If it had intended to do that, it could have easily said so, but it did not.
The defense did point out that a year is statutorily defined as 365 days under Government Code § 6803 and the Court seems to have agreed that is the case. Not specifically addressed in the case, however, is the fact that 2012 was a leap year, so it would appear that the defense was trying to use that to their advantage, because a leap year has 366 days in it. [Also not addressed was what the plaintiff in Shalabi was going to do with his “full day,” as a practical matter, since his birthday fell on a Saturday in 2011.]
So, what are the take-aways from Shalabi? One is that, in calculating the length of a statute of limitations, one counts from the day after the accrual date (whether the action accrues at the beginning of the day, in the middle of the day, or at the end of it). There is no distinction between whole days and partial days. Another is that one counts 365 days for each “year” from there. There may be some short additional time if the last day falls on a holiday. Finally, be careful of leap years; don’t assume the anniversary method will be correct.
Mark E. Hancock is an Attorney, with offices in Ventura, who handles claims under disability and other insurance policies and personal injury, insurance and real estate litigation.
THIS ARTICLE WAS PUBLISHED, WITH THE AUTHOR'S PERMISSION, IN THE DECEMBER, 2021 EDITION OF CITATIONS MAGAZINE,
THE OFFICIAL PUBLICATION OF THE VENTURA COUNTY BAR ASSOCIATION
OF WHICH ATTORNEY MARK E. HANCOCK IS A LONG-TIME MEMBER.