Fox v. Ethicon Endo-Surgery, Inc., 110 P. 3d 914 – Cal: Supreme Court 2005
“Statute of limitations” is the collective term applied to acts or parts of acts that prescribe the periods beyond which a plaintiff may not bring a cause of action. (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 405, p. 509; accord, Norgart, supra, 21 Cal.4th at p. 395, 87 Cal. Rptr.2d 453, 981 P.2d 79.) There are several policies underlying such statutes. One purpose is to give defendants reasonable repose, thereby protecting parties from “defending stale claims, where factual obscurity through the loss of time, memory or supporting documentation may present unfair handicaps.” (Bernson, supra, 7 Cal.4th at p. 935, 30 Cal.Rptr.2d 440, 873 P.2d 613; Jolly, supra, 44 Cal.3d at p. 1112, 245 Cal.Rptr. 658, 751 P.2d 923; see also Davies v. Krasna (1975) 14 Cal.3d 502, 121 Cal.Rptr. 705, 535 P.2d 1161.) A statute of limitations also stimulates plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395, 87 Cal.Rptr.2d 453, 981 P.2d 79; Jolly, supra, 44 Cal.3d at p. 1112, 245 Cal.Rptr. 658, 751 P.2d 923; see, e.g., Bernson, supra, 7 Cal.4th at p. 935, 30 Cal.Rptr.2d 440, 873 P.2d 613.) A countervailing factor, of course, is the policy favoring disposition of cases on the merits rather than on procedural grounds. (Norgart, supra, 21 667*667 Cal.4th at p. 396, 87 Cal.Rptr.2d 453, 981 P.2d 79; Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 152, 216 Cal.Rptr. 405, 702 P.2d 563.)
A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc., § 312 [“Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued”]; Norgart, supra, 21 Cal.4th at p. 397, 87 Cal.Rptr.2d 453, 981 P.2d 79.) In other words, statutes of limitation do not begin to run until a cause of action accrues. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487, 59 Cal.Rptr.2d 20, 926 P.2d 1114.)
Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements.” (Norgart, supra, 21 Cal.4th at p. 397, 87 Cal.Rptr.2d 453, 981 P.2d 79; see Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 187, 98 Cal.Rptr. 837, 491 P.2d 421 (Neel).) An important exception to the general rule of accrual is the “discovery rule,” which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Norgart, supra, 21 Cal.4th at p. 397, 87 Cal.Rptr.2d 453, 981 P.2d 79; Neel, supra, 6 Cal.3d at p. 187, 98 Cal.Rptr. 837, 491 P.2d 421.)
A plaintiff has reason to discover a cause of action when he or she “has reason at least to suspect a factual basis for its elements.” (Norgart, supra, 21 Cal.4th at p. 398, 87 Cal.Rptr.2d 453, 981 P.2d 79, citing Jolly, supra, 44 Cal.3d at p. 1110, 245 Cal.Rptr. 658, 751 P.2d 923; see also Gutierrez v. Mofid, supra, 39 Cal.3d at p. 897, 218 Cal.Rptr. 313, 705 P.2d 886 [“the uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim”].) Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. (Norgart, supra, 21 Cal.4th at p. 398, fn. 3, 87 Cal.Rptr.2d 453, 981 P.2d 79; Jolly, supra, 44 Cal.3d at p. 1112, 245 Cal.Rptr. 658, 751 P.2d 923.) Norgart explained that by discussing the discovery rule in terms of a plaintiff’s suspicion of “elements” of a cause of action, it was referring to the “generic” elements of wrongdoing, causation, and harm. (Norgart, supra, 21 Cal.4th at p. 397, 87 Cal. Rptr.2d 453, 981 P.2d 79.) In so using the term “elements,” we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.
The discovery rule, as described in Bernson, allows accrual of the cause of action even if the plaintiff does not have reason to suspect the defendant’s identity. (See Bernson, supra, 7 Cal.4th at p. 932, 30 Cal.Rptr.2d 440, 873 P.2d 613.) The discovery rule does not delay accrual in that situation because the identity of the defendant is not an element of a cause of action. (See Norgart, supra, 21 Cal.4th at p. 399, 87 Cal.Rptr.2d 453, 981 P.2d 79; Bernson, supra, 7 Cal.4th at p. 932, 30 Cal.Rptr.2d 440, 873 P.2d 613.) As the court reasoned in Norgart, “[i]t 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.” (Norgart, supra, 21 Cal.4th at p. 399, 87 Cal.Rptr.2d 668*668 453, 981 P.2d 79.) In Norgart, we distinguished between ignorance of the identity of the defendant and ignorance of the cause of action based 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.” (Norgart, supra, 21 Cal.4th at p. 399, 87 Cal.Rptr.2d 453, 981 P.2d 79, quoting Bernson, supra, 7 Cal.4th at p. 932, 30 Cal.Rptr.2d 440, 873 P.2d 613.)
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[2] 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.”‘” (Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 896-897, 218 Cal. Rptr. 313, 705 P.2d 886, quoting Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 101, 132 Cal.Rptr. 657, 553 P.2d 1129.) 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.
The Legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause. (E.g., Code Civ. Proc., §§ 340.1, subd. (a) [“within three years of the date the plaintiff discovers or reasonably should have discovered”], 340.15, subd. (a)(2) [“[w]ithin three years from the date the plaintiff discovers or reasonably should have discovered”], 340.2, subd. (a)(2) [“[w]ithin one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known”], 340.5 [“one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered”].) This policy of charging plaintiffs with presumptive knowledge of the wrongful cause of an injury is consistent with our general policy encouraging plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395, 87 Cal.Rptr.2d 453, 981 P.2d 79.)
In order to rely on the discovery rule for delayed accrual of a cause of action, “[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, 86 Cal.Rptr.2d 645.) In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to “show diligence”; “conclusory allegations will not withstand demurrer.” (Ibid.)
Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light. In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.