Statutes of Limitation – How Much Time a Victim Has to File a Claim in California

• The statute of limitations in California for sexual harassment at work increased to three years to file a state administrative complaint with the Department of Fair Employment and Housing (DFEH) on January 1, 2020.  After obtaining a right-to-sue notice, a victim then has one year to file a lawsuit.

Victims of workplace sexual harassment in California now have three years from the harassment to file an administrative complaint with the California DFEH, since a law increased the time period effective January 1, 2020.  Filing an administrative compliant with the DFEH, and having the DFEH issue the victim a right-to-sue notice is a requirement before you can bring a lawsuit for workplace sexual harassment in California Superior Court. Victims then have one year from the issuance of the DFEH right-to-sue notice to file a lawsuit.  See California Government Code §12960.

Pursuant to California Government Code §12960(e), the time period allowed to file a DFEH complaint may be extended in the following limited circumstances:

1. For a period of time not to exceed 90 days following the expiration of the applicable filing deadline, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice during the 90 days following the expiration of the applicable filing deadline.
2. For a period of time not to exceed one year following a rebutted presumption of the identity of the person’s employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.
3. For a period of time, not to exceed one year from the date the person aggrieved by an alleged violation of Section 51.7 of the Civil Code becomes aware of the identity of a person liable for the alleged violation, but in no case exceeding three years from the date of the alleged violation if during that period the aggrieved person is unaware of the identity of any person liable for the alleged violation.
4. For a period of time not to exceed one year from the date that a person allegedly aggrieved by an unlawful practice attains the age of majority.

• The statute of limitations for sexual harassment in a professional relationship outside the workplace is uncertain under the law, but beginning in 2022, a victim now has three years to file a complaint with the Department of Fair Employment and Housing (DFEH), and then one year to file a lawsuit after obtaining a right-to-sue notice from the DFEH.  If the victim does not file a complaint with the DFEH, the statute of limitations is unclear in the law, as described below, but is most likely two years.

The statute of limitations is uncertain under California law for sexual harassment claims in professional relationships outside of the workplace, such as sexual harassment by a doctor, teacher, or landlord.

Filing a complaint with the DFEH and obtaining a right-to-sue letter is not a requirement for a victim before filing a lawsuit.  However, a victim of sexual harassment in a professional relationship outside of work has the option to file a complaint with the DFEH, and then one year from obtaining a right-to-sue notice from the DFEH to file a lawsuit in California Superior Court.  While the relevant statute, California Gov’t. Code §12960, was previously silent as to the period of time that victims alleging Civil Code §51.9 violations for sexual harassment in professional relationships had to file a DFEH complaint, the statute was clarified effective January 1, 2022 to specify that victims complaining of Civil Code §51.9 violations have three years to file a DFEH complaint.

If a victim does not file an optional DFEH complaint prior to filing a lawsuit, the applicable statute of limitations remains unclear.

However, the statute of limitations for sexual harassment in professional relationships, if no DFEH complaint is filed, is most likely two years.  Some courts in published decisions have found that the statute of limitations for CC §51.9 violations should be one year, reasoning that sexual harassment in a professional relationship is a claim for personal injury, and the statute of limitations for CC §51.9 violations should be the same as the statute of limitations for personal injury.  However, at the time these decisions were made, the statute of limitations for a personal injury was one year.  See W. Shield Investigations & Sec. Consultants v. Superior Court (2000) 82 Cal. App. 4th 935 and Gatto v. Cty. of Sonoma (2002) 98 Cal. App. 4th 744.  However, the statute of limitations for personal injury in California was extended to two-years in 2002.  Therefore, if the argument survives that the time limit to file a lawsuit for sexual harassment in professional relationship should be the same as the time limit for filing a lawsuit for personal injury claims, that would give the victim two years.

Long story short, if it has been more than one year since the time of the victim’s sexual harassment in a professional relationship CC §51.9 violation, then the safest thing to do is file a DFEH complaint and obtain a right-to-sue notice prior to filing a lawsuit in superior court.

• The statute of limitations for sexual assault and sexual battery in California is two years, but the statute of limitations can be extended in certain situations, described in further detail below.

If the victim was 18 or older at the time of a sexual assault or sexual battery, then the statute of limitations in California is two years.  California Code of Civil Procedure §335.1 states that battery claims have a two-year statute of limitation.

However, in 2019, a new statute was enacted that extended the statute of limitations for sexual assault and sexual battery claims in certain circumstances, CCP §340.16.  This statute was again modified effective January 1, 2023.  Now, if particular requirements are met, then the statute of limitations is extended to:

1. Ten years;
   OR
2. Three years from the date the victim discovers or reasonably should have discovered that an injury or illness resulted from the sexual assault;
   OR
3. Open statute of limitations for claims brought during the 2023 calendar year in cases involving a cover up.

In order for these extended time limitations to apply, the victim must have suffered from a sexual assault or attempted sexual assault that also would have constituted a crime that is prohibited by certain sections of the California Penal Code, which are detailed below.  However, it is not necessary that the perpetrator was found guilty of the crime.  These qualifying crimes include:

• Sexual battery (Penal Code §243.4)
• Rape, including nonconsensual sexual intercourse by means of threats, force or fraud (Penal Code §261)
• Intercourse with a spouse without consent, under force or threat, and for sexual pleasure or arousal (Penal Code §262)
• Committing an illegal to act in concert with someone who commits a rape (Penal Code §264.1)
• Sodomy by force or threat or with a minor (Penal Code §286)
• Oral copulation with minor, or with adult under force or threat (Penal Code §287, which was formerly covered by Penal Code §288a)
• Sexual penetration by force or threat or with a minor (Penal Code §289)

The language of CCP section 340.16, effective January 1, 2023, is as follows:

(a) In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff’s 18th birthday, the time for commencement of the action shall be the later of the following:

(1) Within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

(b) (1) As used in this section, “sexual assault” means any of the crimes described in Section 243.4, 261, 264.1, 286, 287, or 289, or former Sections 262 and 288a, of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.

(2) For the purpose of this section, it is not necessary that a criminal prosecution or other proceeding have been brought as a result of the sexual assault or, if a criminal prosecution or other proceeding was brought, that the prosecution or proceeding resulted in a conviction or adjudication. This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged person who committed the crime.

(3) This section applies to any action described in subdivision (a) that is based upon conduct that occurred on or after January 1, 2009, and is commenced on or after January 1, 2019, that would have been barred solely because the applicable statute of limitations has or had expired. Such claims are hereby revived and may be commenced until December 31, 2026. This subdivision does not revive any of the following claims:

(A) A claim that has been litigated to finality in a court of competent jurisdiction before January 1, 2023.

(B) A claim that has been compromised by a written settlement agreement between the parties entered into before January 1, 2023.

(c) (1) Notwithstanding any other law, any claim seeking to recover more than two hundred fifty thousand dollars ($250,000) in damages arising out of a sexual assault or other inappropriate contact, communication, or activity of a sexual nature by a physician occurring at a student health center between January 1, 1988, and January 1, 2017, that would otherwise be barred before January 1, 2020, solely because the applicable statute of limitations has or had expired, is hereby revived and, a cause of action may proceed if already pending in court on October 2, 2019, or, if not filed by that date, may be commenced between January 1, 2020, and December 31, 2020.

(2) This subdivision does not revive any of the following claims:

(A) A claim that has been litigated to finality in a court of competent jurisdiction before January 1, 2020.

(B) A claim that has been compromised by a written settlement agreement between the parties entered into before January 1, 2020.

(C) A claim brought against a public entity.

(3) An attorney representing a claimant seeking to recover under this subdivision shall file a declaration with the court under penalty of perjury stating that the attorney has reviewed the facts of the case and consulted with a mental health practitioner, and that the attorney has concluded on the basis of this review and consultation that it is the attorney’s good faith belief that the claim value is more than two hundred fifty thousand dollars ($250,000). The declaration shall be filed upon filing the complaint, or for those claims already pending, by December 1, 2019.

(d) (1) Notwithstanding any other law, any claim seeking to recover damages arising out of a sexual assault or other inappropriate contact, communication, or activity of a sexual nature by a physician while employed by a medical clinic owned and operated by the University of California, Los Angeles, or a physician who held active privileges at a hospital owned and operated by the University of California, Los Angeles, at the time that the sexual assault or other inappropriate contact, communication, or activity of a sexual nature occurred, between January 1, 1983, and January 1, 2019, that would otherwise be barred before January 1, 2021, solely because the applicable statute of limitations has or had expired, is hereby revived, and a cause of action may proceed if already pending in court on January 1, 2021, or, if not filed by that date, may be commenced between January 1, 2021, and December 31, 2021.

(2) This subdivision does not revive either of the following claims:

(A) A claim that has been litigated to finality in a court of competent jurisdiction before January 1, 2021.

(B) A claim that has been compromised by a written settlement agreement between the parties entered into before January 1, 2021.

(e) (1) Notwithstanding any other law, any claim seeking to recover damages suffered as a result of a sexual assault that occurred on or after the plaintiff’s 18th birthday that would otherwise be barred before January 1, 2023, solely because the applicable statute of limitations has or had expired, is hereby revived, and a cause of action may proceed if already pending in court on January 1, 2023, or, if not filed by that date, may be commenced between January 1, 2023, and December 31, 2023.

(2) This subdivision revives claims brought by a plaintiff who alleges all of the following:

(A) The plaintiff was sexually assaulted.

(B) One or more entities are legally responsible for damages arising out of the sexual assault.

(C) The entity or entities, including, but not limited to, their officers, directors, representatives, employees, or agents, engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.

(3) Failure to allege a cover up as required by subparagraph (C) of paragraph (2) as to one entity does not affect revival of the plaintiff’s claim or claims against any other entity.

(4) For purposes of this subdivision:

(A) “Cover up” means a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.

(B) “Entity” means a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity.

(C) “Legally responsible” means that the entity or entities are liable under any theory of liability established by statute or common law, including, but not limited to, negligence, intentional torts, and vicarious liability.

(5) This subdivision revives any related claims, including, but not limited to, wrongful termination and sexual harassment, arising out of the sexual assault that is the basis for a claim pursuant to this subdivision.

(6) This subdivision does not revive either of the following claims:

(A) A claim that has been litigated to finality in a court of competent jurisdiction before January 1, 2023.

(B) A claim that has been compromised by a written settlement agreement between the parties entered into before January 1, 2023.

(7) This subdivision shall not be construed to alter the otherwise applicable burden of proof, as defined in Section 115 of the Evidence Code, that a plaintiff has in a civil action subject to this section.

(8) Nothing in this subdivision precludes a plaintiff from bringing an action for sexual assault pursuant to subdivisions (a) and (b).

• The statute of limitations for sexual abuse of a minor in California is until the victim turns 40, or within 3 years of date of later discovery of injury (but all claims are allowed, regardless of their age, until December 31, 2022).

If sexual abuse was committed when the victim was a minor, then the California Code of Civil Procedure §340.1, the statute of limitations for childhood sexual assault, provides the limitations period.  An action for childhood sexual assault may be brought within 22 years of the date the victim attains the age of majority (until they are 40 years old), or within three years of the date the victim discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual assault, whichever period expires later. This extended statute of limitations applies to:

• An action against any person for committing an act of childhood sexual assault.
• An action for liability brought against any person or entity who owed a duty of care to the plaintiff, when a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault which resulted in the injury to the victim.
• An action for liability brought against any person or entity when an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the victim.

In addition, any claim for childhood sexual assault that would otherwise be time-barred (such as because the victim is over 40), is revived through December 31, 2022.

It is important to note that there is an exception to this extended statute of limitations if the perpetrator is a public entity.  Victims of childhood sexual abuse from still must comply with the government claims statute when suing a public entity defendant, which claims are generally limited to the very short statute of limitations of bringing a special claim called a government tort claim within 180 days of the incident.  See Rubenstein v. Doe (2017) 3 Cal. 5th 903, 911.  In Rubenstein, the Court found that the victim of sexual abuse by her public high school’s track coach could not sue the high school years later.  Before suing a public entity for personal injury, a victim must present a special notice to the public entity within 180 days of incident. The Court ruled that although the victim was otherwise within the time limits to sue for childhood sexual abuse, her high school is a public entity, and she did not comply with the requirement to serve a tort claim within the required time period, and so her lawsuit could not move forward against the school.

• The statute of limitations for domestic violence in California is three years.

According to California Code of Civil Procedure §340.15, a civil lawsuit for domestic violence must be brought within three years from the date of the last act of domestic violence by the defendant against the victim, or within three years from the date the victim discovers or reasonably should have discovered that an injury or illness resulted from an act of domestic violence by the defendant against the victim.

• The statute of limitations for the distribution of sexually explicit materials in California is uncertain, but victims should file a lawsuit within two years to be safe.

The statute of limitations for distribution of private sexually explicit materials is an unsettled area of the law, and practice guides determine the statute of limitations for these claims as “unclear”.  See Cal. Prac. Guide Civ. Pro. Trial Claims and Def. Ch.2 XII (B).  An argument can be made that the statute of limitations for these claims is three years based on CCP §338(a), because it is a claim based on a particular statute that does not specify the statute of limitations.  However, it would be a better practice to bring this type claim within two years, in case the court applies the statute of limitations applicable to personal injury claims pursuant to CCP §335.1.

• The statute of limitations for defamation in California is one year, except if the statement was made in a way that was not public or discoverable by the victim, then the statute of limitations can be extended to begin from the date that the victim discovers or reasonably should have discovered the publication of the defamatory statement.

The statute of limitations for defamation in California is one year from the date of the publication of the defamatory statement pursuant to California Code of Civil Procedure §340(c), except if the statement was made in a way that was not public or discoverable by the plaintiff, then the statute of limitations can be extended to begin from the date that the victim discovers or reasonably should have discovered the publication of the defamatory statement.  However, this extension does not apply to online publications.

For statements made in public locations on the internet, the statute of limitations is one year from the date of the posting, regardless of when the victim discovered the posting.  In the case of Traditional Cat Ass’n, Inc. v. Gilbreath (2004) 118 Cal. App. 4th 392, for example, the court found that the plaintiff’s action for defamation was untimely because the action was filed more than a year after the last update to allegedly defamatory material published on the defendant’s website.  In that case, the plaintiff had argued that given the unique and dynamic character of the Internet, their defamation cause of action arose continuously while the website was operating.  However, the Court found that the statute of limitations began to run on the date the article was initially posted, and expired one year later. In addition, the date that a defamation victim discovers a statement publically posted on the internet does not extend the limitations period.

Case law has also found that notice given to a website about the falsity of its contents does not restart the statute of limitations.  In the case of Roberts v. McAfee, Inc. (9th Cir. 2011) 660 F.3d 1156, 1167–1169, the Ninth Circuit Court of Appeals held that the failure to remove an allegedly defamatory press release from a website after the website was informed about the falsity of its contents did not constitute a republication of that press release for purposes of triggering a new limitations period.

However, changes made to defamatory material on a website could restart the one-year clock.  For example, in Roberts v. McAfee, Inc. (9th Cir. 2011) 660 F.3d 1156, while the court did not reach the issue, it noted that in certain circumstances changes to a webpage might be so extensive as to constitute a republication of that webpage and restart the limitations period.

Further, in the unpublished California case of LegacyQuest v. Rosen, No. A129177, 2012 WL 267509, at *5 (Cal. Ct. App. Jan. 27, 2012) the Court stated that “changes to defamatory material on a website may begin a new limitations period.”  While unpublished cases do not control the law, they are informative as to what another court would decide on the same issue.

Out-of-state cases have also held that changes to defamatory material on a website could restart the limitations period.  For example, in Larue v. Brown (Ariz. Ct. App. 2014) 235 Ariz. 440, 333 P.3d 767, 772-773, the Court found republication sufficient to restart the statute of limitations where, an “update or modification affects the substance of the allegedly defamatory material.” In that case, the Court held that the defendants’ responses to online comments that were posted below the original article both repeated the earlier defamatory statements and also added to and altered the substance of the original material. The Court ruled that where the statement itself is substantively altered or added to, or the website is directed to a new audience, the statement will be considered to be “republished.”

However, as explained in the New York case of Firth v. State (N.Y. 2002), 98 N.Y.2d 365, adding material to a website that is unrelated to previously posted defamatory material has not been found to be a republication and would not restart the statute of limitations for the defamatory material.  The Court in Firth reasoned that many websites are in a constant state of change, with information posted sequentially on a frequent basis, and to find republication with every minor alteration to a website “would either discourage the placement of information on the Internet or slow the exchange of such information, reducing the Internet’s unique advantages. In order not to retrigger the statute of limitations, a publisher would be forced either to avoid posting on a Web site or use a separate site for each new piece of information.”  California Courts would be likely to follow this same reasoning and come to the same conclusion that unrelated changes to a webpage containing defamatory material would not restart the limitations period.

Other states have also found that a new online link to an old defamatory article is not enough to reset the statute of limitations period.  For example, in the Delaware case of Perlman v. Vox Media Inc. (2015) Civil Action No. 10046-VCP, 2015 Del. Ch. LEXIS 248, at *56-57, the Court found that a hyperlink and reference to an unchanged article is not a republication.  Also, the case of In re Phila. Newspapers, LLC (3d Cir. 2012) 690 F.3d 161, 175, the Court held that “though a link and reference may bring readers’ attention to the existence of an article, they do not republish the article.” California Courts would likely reach the same conclusion.

Originator Liable for Repetition of Defamatory Statement

Ordinarily, the originator of the defamatory statement is also liable for each repetition of their statement if they could reasonably have foreseen that the repetition was likely to occur.  For example, in the case of Stoneking v. Briggs (1967) 254 Cal.App.2d
563, 577, a newspaper repeated statements that the defendant, Briggs, made to a reporter.  The Court found that Briggs could be liable for the repetition of his defamatory statements by the newspaper because he could foresee that the reporter was going to repeat his statements.  As another example, in the case of Neary v. Regents of the Univ. of California (1986) 185 Cal.App.3d 1136, 1147, the Court held that the defendant could be held liable for repetition by others of statements he made in a report analyzing the reasons for the death of many of the plaintiff’s cattle because the defendant had admitted that he “assumed” the report he was working on was going to be reviewed very publicly, showing that he foresaw the likelihood of its republication.

By way of another example, if John Doe starts a false rumor about his co-worker Suzy Smith, and can reasonably foresee that his false rumor is going to be repeated to others, then John can be held responsible for the damage caused by others repeating the false rumor he started.  This rule brings the statute of limitation into play because even if John’s original statement is beyond the one year statute, John could still be sued for defamation if the repetition of his rumor occurred within the last year.

• The statute of limitations for wrongful termination in violation of public policy in California is two years.

The two-year limitations prescribed by CCP § 335.1 applies to claims for wrongful termination.  See Prue v. Brady Company/San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1382, in which the Court explained, “Prue’s common law tort cause of action for wrongful termination in violation of public policy is not barred by FEHA’s [then] one-year statute of limitations. Instead, Code of Civil Procedure section 335.1 applies, providing a two-year statute of limitations for tort actions based on injuries to plaintiffs caused by the wrongful act or neglect of others.”

• California Rules of Court, Emergency Rule 9, provided for tolling of statutes of limitation for civil causes of action based on COVID, giving victims extra time.

California Rules of Court, Emergency Rule 9, provides that if a victim’s applicable statute of limitations is more than 180 days (true for most claims other than claims against public entities), then California “tolled”, or paused, the statute of limitations between April 6, 2020 and October 1, 2020 (178 days).  In addition, if a victim’s applicable statute of limitations is 180 days or less (such as with claims against public entities), then California “tolled”, or paused, the statute of limitations between April 6, 2020 and August 3, 2020 (119 days).

So for each of the causes of action described above in this article (other than cases against public entities), where the incident occurred before April 6, 2020, the amount of time a victim has to file is extended by 178 days. For incidents that happened between April 6, 2020 and October 1, 2020, there is a diminishing extension as the date that the incident happened approaches October 1, 2020.  For example, if the incident happened on September 1, 2020, the statute of limitations is extended 30 days (the amount of time between the incident and October 1, 2020).