Statutes of Limitation – How Much Time You Have to Bring a Claim

Statute of Limitations Sexual Harassment
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Sexual Harassment at Work

  • Generally 3 years to file administrative complaint, then 1 year to file lawsuit after obtaining right-to-sue notice.

Victims of workplace sexual harassment in California have three years from the harassment to file an administrative complaint with the California Department of Fair Employment and Housing (DFEH).  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 general three-year 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.

Sexual Harassment in a Professional Relationship Outside of Work Under CC §51.9

  • Law is uncertain, but file within one year to be safe

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.  However, it is recommended that you bring a claim within one year of the sexual harassment, because a one-year statute of limitations may apply.

Part of the uncertainty on the statute of limitations for these claims stems from a conflicting view based on court opinions in various cases referring to the code section that covers sexual harassment in professional relationships (CC §51.9) as being a part of the Unruh Act, or as being separate from the Unruh Act.  The statute of limitations for violations of the Unruh Act under various case law is one year.

However, it can be argued that the statute of limitations for sexual harassment in professional relationships is two years, so if you have a case that is between one and two years old, do not give up hope altogether.  The two-year statute of limitations argument is based on the reasoning that some courts have determined that the statute of limitations should be one year because sexual harassment in a professional relations is a claim for personal injury, and the statute of limitations for a personal injury at the time those cases were decided 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 timing for sexual harassment in professional relationships should be the same as the timing for personal injury claims, that would give you two years.  It is important to note, that this argument should only be relied upon if needed, and it is urgently recommended that you file a claim within one year to avoid the risk of losing your right to bring your claim.

Sexual Assault and Sexual Battery of an Adult

  • Generally two years,
    but can be extended to 10 years or 3 years from date of later discovery of injury

If the victim was 18 or older at the time of the incident, then the statute of limitations in California is generally two years. California Civil Code §1708.5(b) is the statute that specifically states that “A person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages”, and this statute does not specify the limitations period governing claims brought under it.  Therefore, the statute of limitations that generally will apply is the two-year statute for battery claims codified at CCP §335.1.

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.  If the incidents alleged meet these defined circumstances, and occurred on or after January 1, 2019, then the statute of limitations is extended to:

  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.

These extended time limitations however, only apply to “sexual assault” claims which are defined by CCP §340.16(b)(1) to include, “any of the crimes described in Section 243.4, 261, 262, 264.1, 286, 287, or 289, or former Section 288a, of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.”  It is not necessary that a criminal prosecution or proceeding was brought for the civil statute of limitations to be extended, but rather, the requirement is based on the nature of the alleged incident.

The crimes included in this section 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/§288a)
  • Sexual penetration by force or threat or with a minor (Penal Code §289)

Sexual Assault, Battery, or Abuse of a Minor | Childhood Sexual Assault Per CCP §340.1

  • Generally until the victim turns 40, or within 3 years of date of later discovery of injury (but all claims allowed, regardless of age, until December 31, 2022)

If the sexual battery was committed when the plaintiff 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 plaintiff attains the age of majority (until they are 40 years old), or within three years of the date the plaintiff 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 plaintiff.
  • 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 plaintiff.

In addition, any claim for childhood sexual assault that would otherwise be time-barred (such as because the victim is over 40), is revived from January 1, 2020 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.  CCP §340.1 does not excuse victims of childhood sexual abuse from complying 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.

Domestic Violence

  • Generally 3 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 plaintiff, or within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act of domestic violence by the defendant against the plaintiff.

Distribution of Private Sexually Explicit Materials – Violation of Civil Code §1708.85

  • Law is uncertain, but file 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.

Defamation

  • Generally one year

The statute of limitations for defamation in California is generally one year from the date of the publication of the defamatory statement pursuant to California Code of Civil Procedure §340(c).  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.  For statements made in public locations on the internet, the statute of limitations is generally one year from the date of the posting, regardless of when the victim discovered the posting.

Wrongful Termination in Violation of Public Policy

  • Generally 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.

Statutes of Limitations Extensions Due to COVID19

  • California Rules of Court, Emergency Rule 9, provides for tolling of statutes of limitation for civil causes of action.

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

Because this is a tolling statute, all causes of action with longer statutes of limitation that began to run before October 1, 2020 will have some extension. For causes of action that began to run before April 6, 2020, the extension is 178 days. For causes of action that began to run between April 6, 2020 and October 1, 2020, there is a diminishing extension as the date that your statute of limitations began to run approaches October 1, 2020.

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