Statute of Limitations for Minors – Calculating Tolling

In most instances, the statute of limitations is tolled for minors until they reach the age of majority (NOTE: this is not the case in medical malpractice matters!).  A recent case (Shalabi v. City of Fontana (July 12, 2021, No. S256665) ___Cal.5th___ [2021 Cal. LEXIS 4762]) deals with some specific details regarding how the tolling is calculated in most instances.

On May 14, 2011, the plaintiff’s father was shot and killed by police officers.  Because plaintiff opted to bring a case alleging federal civil rights violations, the applicable statute of limitations was 2 years (May 14, 2013).  Instead of filing within 2 years of the shooting, plaintiff filed suit under 42 U.S.C. § 1983 on his 20th birthday, December 3, 2013 (2 years after he reached the age of majority).  Plaintiff’s reasoning was that the statute of limitations (2 years) was tolled until his 18th birthday until which time the clock would start on the 2 year statute of limitations.

The defendants promptly moved to have the case dismissed for being filed outside the applicable statute of limitations.  The trial court ruled that plaintiff’s claim was time-barred because he filed suit one day outside the two-year limitations period. Defendant argued that the 18th birthday counted as the first day for the purposes of counting the 2 year statute of limitations period.  The Court of Appeal, for the Fourth Dist., Div. Two, reversed.

The defendants appealed this matter to the California Supreme Court.  The Supreme Court affirmed the judgment of the Court of Appeal, holding that in cases in which the statute of limitations is tolled based on a plaintiff minor’s age, as set forth in Code Civ. Proc., § 12, the day after tolling ends is excluded in calculating whether an action is timely filed.

In this case, plaintiff’s action was timely filed because under Code Civ. Proc., § 352, subd. (a), the statute of limitations was tolled during the time he was a minor. His 18th birthday—December 3, 2011—was the triggering event because that was the first day he was no longer a minor. Excluding that date and including the last date two years later, plaintiff had to file suit no later than December 3, 2013 (Code Civ. Proc., § 335.1). He did so.

“As established by Code of Civil Procedure section 12, the general rule for computing the time by which a plaintiff must bring a cause of action is to exclude the first day of the limitations period and include the last day.”
(Shalabi v. City of Fontana (July 12, 2021, No. S256665) ___Cal.5th___ [2021 Cal. LEXIS 4762, at *1].)