457 . Statute of Limitations - Equitable T olling - Other Prior
Proceeding
[ Name of plaintiff ] claims that even if [his/her/ nonbinary pr onoun /its]
lawsuit was not filed by [ insert date fr om applicable statute of limitations ],
[he/she/ nonbinary pr onoun /it] may still proceed because the deadline for
filing the lawsuit was extended by the time during which [ specify prior
pr oceeding that qualifies as the tolling event, e.g., she was seeking workers’
compensation benefits ]. In order to establish the right to pr oceed, [ name of
plaintiff ] must prove all of the following:
1. That [ name of defendant ] received timely notice that [ name of
plaintiff ] was [ e.g., seeking workers’ compensation ] instead of filing
2. That the facts of the two claims were so similar that an
investigation of the [ e.g., workers’ compensation claim ] gave or
would have given [ name of defendant ] the information needed to
defend the lawsuit; and
3. That [ name of plaintiff ] was acting reasonably and in good faith
by [ e.g., seeking workers’ compensation ].
For [ name of defendant ] to have received timely notice, [ name of plaintiff ]
must have filed the [ e.g., workers’ compensation claim ] by [ insert date fr om
applicable statute of limitations ] and the [ e.g., claim ] notified [ name of
defendant ] of the need to begin investigating the facts that form the basis
for the lawsuit.
In considering whether [ name of plaintiff ] acted reasonably and in good
faith, you may consider the amount of time after the [ e.g., workers’
compensation claim ] was [resolved/abandoned] befor e [he/she/ nonbinary
pr onoun /it] filed the lawsuit.
New December 2009; Revised December 2014
Directions for Use
Equitable tolling, including any disputed issue of fact, is to be decided by the court,
even if there are disputed issues of fact. ( Hopkins v . Kedzierski (2014) 225
Cal.App.4th 736, 745 [170 Cal.Rptr .3d 551].) This instruction is for use if the court
submits the issue to the jury for advisory findings.
Equitable tolling is not available for legal malpractice (see Lair d v . Blacker (1992) 2
Cal.4th 606, 618 [7 Cal.Rptr .2d 550, 828 P .2d 691] [statutory tolling provisions of
Code Civ Proc., § 340.6 are exclusive for both one-year and four-year limitation
periods]; see also CACI No. 610, Affırmative Defense - Statute of
Limitations - Attorney Malpractice - One-Y ear Limit , and CACI No. 61 1, Affırmative
Defense - Statute of Limitations - Attorney Malpractice - Four-Y ear Limit ) nor for
medical malpractice with regard to the three-year limitation period of Code of Civil
Procedure section 340.5. (See Belton v . Bowers Ambulance Serv . (1999) 20 Cal.4th
928, 934 [86 Cal.Rptr .2d 107, 978 P .2d 591] [statutory tolling provisions of Code
Civ . Proc., § 340.5 are exclusive only for three-year period; one-year period may be
tolled on other grounds]; see also CACI No. 555, Affırmative Defense - Statute of
Limitations - Medical Malpractice - One-Y ear Limit , and CACI No. 556, Affırmative
Defense - Statute of Limitations - Medical Malpractice - Thr ee-Y ear Limit .)
Sources and Authority
• T olling for Equal Employment Opportunity Commission Investigation.
Government Code section 12965(e)(1), (f)(1).
• “The equitable tolling of statutes of limitations is a judicially created,
nonstatutory doctrine. It is ‘designed to prevent unjust and technical forfeitures
of the right to a trial on the merits when the purpose of the statute of
limitations - timely notice to the defendant of the plaintif f’ s claims - has been
satisfied.’ Where applicable, the doctrine will ‘suspend or extend a statute of
limitations as necessary to ensure fundamental practicality and fairness.’ ”
( McDonald v . Antelope V alley Community College Dist. (2008) 45 Cal.4th 88, 99
[84 Cal.Rptr .3d 734, 194 P .3d 1026], internal citations omitted.)
• “The purpose of equitable tolling is to ‘ease[] the pressure on parties
“concurrently to seek redress in two separate forums with the attendant danger
of conflicting decisions on the same issue.” ’ It is intended to benefit the court
system ‘by reducing the costs associated with a duplicative filing requirement, in
many instances rendering later court proceedings either easier and cheaper to
resolve or wholly unnecessary .’ ” ( Long v . Forty Niners Football Co . (2019) 33
Cal.App.5th 550, 555 [244 Cal.Rptr .3d 887], internal citation omitted.)
• “While the case law is not entirely clear , it appears that the weight of authority
supports our conclusion that whether a plaintif f has demonstrated the elements of
equitable tolling presents a question of fact.” ( Hopkins, supra , 225 Cal.App.4th
• “[E]quitable tolling, ‘[a]s the name suggests . . . is an equitable issue for court
resolution.’ ” ( Hopkins, supra , 225 Cal.App.4th at p. 745.)
• “While the judge determines equitable causes of action, the judge may (in rare
instances) empanel an advisory jury to make preliminary factual findings. The
factual findings are purely advisory because, on equitable causes of action, the
judge is the proper fact finder . ‘[W]hile a jury may be used for advisory verdicts
as to questions of fact [in equitable actions], it is the duty of the trial court to
make its own independent findings and to adopt or reject the findings of the jury
as it deems proper .’ ” ( Hoopes v . Dolan (2008) 168 Cal.App.4th 146, 156 [85
Cal.Rptr .3d 337], internal citations omitted.)
• “[CACI No. 457 is] appropriate for use when a trial court ‘empanel[s] an
advisory jury to make preliminary factual findings,’ with respect to equitable
CACI No. 457 NEGLIGENCE
. . . tolling.” ( Hopkins, supra , 225 Cal.App.4th at p. 745.)
• “The equitable tolling doctrine rests on the concept that a plaintif f should not be
barred by a statute of limitations unless the defendant would be unfairly
prejudiced if the plaintif f were allowed to proceed. ‘[T]he primary purpose of the
statute of limitations is normally satisfied when the defendant receives timely
notification of the first of two proceedings.’ ” ( Aguilera v . Heiman (2009) 174
Cal.App.4th 590, 598 [95 Cal.Rptr .3d 18], internal citations omitted.)
• “Broadly speaking, the doctrine applies ‘ “[w]hen an injured person has several
legal remedies and, reasonably and in good faith, pursues one.” ’ [Citation.]
Thus, it may apply where one action stands to lessen the harm that is the subject
of a potential second action; where administrative remedies must be exhausted
before a second action can proceed; or where a first action, embarked upon in
good faith, is found to be defective for some reason.” ( W assmann v . South
Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 853 [234
Cal.Rptr .3d 712].)
• “[T]he ef fect of equitable tolling is that the limitations period stops running
during the tolling event, and begins to run again only when the tolling event has
concluded. As a consequence, the tolled interval, no matter when it took place, is
tacked onto the end of the limitations period, thus extending the deadline for suit
by the entire length of time during which the tolling event previously occurred.”
( Lantzy v . Centex Homes (2003) 31 Cal.4th 363, 370-371 [2 Cal.Rptr .3d 655, 73
• “A major reason for applying the doctrine is to avoid ‘the hardship of
compelling plaintif fs to pursue several duplicative actions simultaneously on the
same set of facts.’ ‘[D]isposition of a case filed in one forum may render
proceedings in the second unnecessary or easier and less expensive to resolve.’ ”
( Guevara v . V entura County Community College Dist. (2008) 169 Cal.App.4th
167, 174 [87 Cal.Rptr .3d 50], internal citations omitted.)
• “[A]pplication of the doctrine of equitable tolling requires timely notice, and
lack of prejudice, to the defendant, and reasonable and good faith conduct on the
part of the plaintif f. These elements seemingly are present here. As noted, the
federal court, without prejudice, declined to assert jurisdiction over a timely filed
state law cause of action and plaintif fs thereafter promptly asserted that cause in
the proper state court. Unquestionably , the same set of facts may be the basis for
claims under both federal and state law . W e discern no reason of policy which
would require plaintif fs to file simultaneously two separate actions based upon
the same facts in both state and federal courts since ‘duplicative proceedings are
surely inef f icient, awkward and laborious.’ ” ( Addison v . State (1978) 21 Cal.3d
313, 319 [146 Cal.Rptr . 224, 578 P .2d 941], internal citations omitted.)
• “ ‘ “The timely notice requirement essentially means that the first claim must
have been filed within the statutory period. Furthermore[,] the filing of the first
claim must alert the defendant in the second claim of the need to begin
investigating the facts which form the basis for the second claim. Generally this
NEGLIGENCE CACI No. 457
means that the defendant in the first claim is the same one being sued in the
second.” “The second prerequisite essentially translates to a requirement that the
facts of the two claims be identical or at least so similar that the defendant’ s
investigation of the first claim will put him in a position to fairly defend the
second.” “The third prerequisite of good faith and reasonable conduct on the part
of the plaintif f is less clearly defined in the cases. But in Addison v . State of
California, supra , 21 Cal.3d 313[,] the Supreme Court did stress that the plaintif f
filed his second claim a short time after tolling ended.” ’ ” ( McDonald, supra , 45
Cal.4th at p. 102, fn. 2, internal citations omitted.)
• “The third requirement of good faith and reasonable conduct may turn on
whether ‘a plaintif f delayed filing the second claim until the statute on that claim
had nearly run . . .’ or ‘whether the plaintif f [took] af f irmative actions which
. . . misle[d] the defendant into believing the plaintif f was foregoing his second
claim.’ ” ( T arkington v . California Unemployment Ins. Appeals Bd. (2009) 172
Cal.App.4th 1494, 1505 [92 Cal.Rptr .3d 131].)
• “Where exhaustion of an administrative remedy is mandatory prior to filing suit,
equitable tolling is automatic: ‘It has long been settled in this and other
jurisdictions that whenever the exhaustion of administrative remedies is a
prerequisite to the initiation of a civil action, the running of the limitations
period is tolled during the time consumed by the administrative proceeding.’
This rule prevents administrative exhaustion requirements from rendering
illusory nonadministrative remedies contingent on exhaustion.” ( McDonald,
supra , 45 Cal.4th at p. 101, internal citation omitted.)
• “The trial court rejected equitable tolling on the apparent ground that tolling was
unavailable where, as here, the plaintif f was advised the alternate administrative
procedure he or she was pursuing was voluntary and need not be exhausted. In
reversing summary judgment, the Court of Appeal implicitly concluded equitable
tolling is in fact available in such circumstances and explicitly concluded
equitable tolling is not foreclosed as a matter of law under the FEHA. The Court
of Appeal was correct on each count.” ( McDonald, supra , 45 Cal.4th at p. 1 14.)
• “Equitable tolling and equitable estoppel [see CACI No. 456] are distinct
doctrines. ‘ “T olling, strictly speaking, is concerned with the point at which the
limitations period begins to run and with the circumstances in which the running
of the limitations period may be suspended. . . . Equitable estoppel,
however , . . . comes into play only after the limitations period has run and
addresses . . . the circumstances in which a party will be estopped from
asserting the statute of limitations as a defense to an admittedly untimely action
because his conduct has induced another into forbearing suit within the
applicable limitations period. [Equitable estoppel] is wholly independent of the
limitations period itself and takes its life . . . from the equitable principle that
no man [may] profit from his own wrongdoing in a court of justice.” ’ ” ( Lantzy ,
supra , 31 Cal.4th at pp. 383-384.)
• “[V]oluntary abandonment [of the first proceeding] does not categorically bar
application of equitable tolling, but it may be relevant to whether a plaintif f can
CACI No. 457 NEGLIGENCE
satisfy the three criteria for equitable tolling.” ( McDonald, supra , 45 Cal.4th at
• “The equitable tolling doctrine generally requires a showing that the plaintif f is
seeking an alternate remedy in an established procedural context. Informal
negotiations or discussions between an employer and employee do not toll a
statute of limitations under the equitable tolling doctrine.” ( Acuna v . San Diego
Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416 [159 Cal.Rptr .3d 749],
internal citation omitted.)
• “T olling the FEHA limitation period while the employee awaits the outcome of
an EEOC investigation furthers several policy objectives: (1) the defendant
receives timely notice of the claim; (2) the plaintif f is relieved of the obligation
of pursuing simultaneous actions on the same set of facts; and (3) the costs of
duplicate proceedings often are avoided or reduced.” ( Mitchell v . State Dept. of
Public Health (2016) 1 Cal.App.5th 1000, 1008 [205 Cal.Rptr .3d 261].)
• “ ‘[P]utative class members would be ill advised to rely on the mere filing of a
class action complaint to toll their individual statute of limitations.’ A trial court
may , nonetheless, apply tolling to save untimely claims. But in doing so, the
court must address ‘two major policy considerations.’ The first is ‘protection of
the class action device,’ which requires the court to determine whether the denial
of class certification was ‘unforeseeable by class members,’ or whether potential
members, in anticipation of a negative ruling, had already filed ‘ “protective
motions to intervene or to join in the event that a class was later found
unsuitable,” depriving class actions “of the ef ficiency and economy of litigation
which is a principal purpose of the procedure.” ’ The second consideration is
‘ef fectuation of the purposes of the statute of limitations,’ and requires the court
to determine whether commencement of the class suit ‘ “notifie[d] the defendants
not only of the substantive claims being brought against them, but also of the
number and generic identities of the potential plaintif fs who may participate in
the judgment.” [Citation.] In these circumstances, . . . the purposes of the statute
of limitations would not be violated by a decision to toll.’ ” ( Batze v . Safeway ,
Inc. (2017) 10 Cal.App.5th 440, 482-483 [216 Cal.Rptr .3d 390], internal
citations omitted.)
• “Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive
period be tolled except under those circumstances specified in the statute. Thus,
the Legislature expressly intended to disallow tolling under any circumstances
not enumerated in the statute.” ( Lair d, supra , 2 Cal.4th at p. 618 [applying rule
to one-year limitation period].)
• “W e see no reason to apply the second sentence of section 340.5 to the one-year
period it does not mention, in addition to the three-year period it does mention.
The general purpose of MICRA does not require us to expand that sentence
beyond its language.” ( Belton, supra , 20 Cal.4th at p. 934 [rejecting application
of rule to one-year limitation period].)
• “[E]quitable tolling has never been applied to allow a plaintif f to extend the time
NEGLIGENCE CACI No. 457
for pursuing an administrative remedy by filing a lawsuit. Despite broad
language used by courts in employing the doctrine, equitable tolling has been
applied almost exclusively to extend statutory deadlines for judicial actions,
rather than deadlines for commencing administrative proceedings.” ( Bjorndal v .
Superior Court (2012) 21 1 Cal.App.4th 1 100, 1 109 [150 Cal.Rptr .3d 405].)
• “Plaintif fs cite no authority , and we are aware of none, that would allow a
plaintif f in one case to equitably toll the limitation period based on the filing of
a stranger ’ s lawsuit.” ( Reid v . City of San Diego (2018) 23 Cal.App.5th 901, 916
[234 Cal.Rptr .3d 636].)
• “Equitable tolling applies to claims under FEHA during the period in which the
plaintif f exhausts administrative remedies or when the plaintif f voluntarily
pursues an administrative remedy or nonmandatory grievance procedure, even if
exhaustion of that remedy is not mandatory .” ( W assmann, supra, 24 Cal.App.5th
at pp. 853-854.)
Secondary Sources
4 W itkin, California Procedure (5th ed. 2008) Actions, § 760 et seq.
T urner et al., California Practice Guide: Civil Procedure Before T rial - Statutes of
Limitations, Ch. 1-A, Definitions And Distinctions ¶ 1:57.2 (The Rutter Group)
3 California T orts, Ch. 32, Liability of Attorneys , § 32.60[1][g.1] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions ,
§ 345.21 (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions , § 143.46
(Matthew Bender)
458-459. Reserved for Future Use
CACI No. 457 NEGLIGENCE
Page last reviewed May 2024
UC Davis Law professor Vikram David Amar analyzes a recent Eighth Circuit ruling on Missouri’s Second Amendment Preservation Act (SAPA), which seeks to protect gun rights by limiting state cooperation with federal firearm laws.
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