section 340(a) one year limitations period in California

1997(Edwards v. Fresno Community Hosp., supra, 38 Cal.App.3d 702, 704 ; Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 8 [ 16 Cal.Rptr.2d 400 ].) “Courts have frequently been asked to choose between the one-year period of section 340, subdivision 3, and the two-year period of section 339, subdivision 1.

1993(Davies v. Krasna, supra, 14 Cal.3d at p. 515 ; Edwards v. Fresno Community Hosp. (1974) 38 Cal.App.3d 702, 704 [ 113 Cal.Rptr. 579 , 3 A.L.R.4th 1209 ].) “With respect to the choice between the one-year period of section 340, subdivision (3), and the two-year period of section 339, subdivision 1, ‘[t]he principle of selection which has emerged is that the one-year period applies to all alleged infringements of personal rights, whereas the two-year period applies only to alleged infringements of property rights. [Citations.]’ (Richardson v. Allstate Ins.

1993Co. (1981) 117 Cal.App.3d 8 , 12 . . . .)” (Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d 473, 478 [ 222 Cal.Rptr. 79 ].) Thus, the question here is whether the cause of action for spoliation of evidence involves an infringement of a “property right” or of a “personal right.” Drawing from analyses of the spoliation tort in the realm of the exclusive remedy rule in workers’ compensation cases, we are of the view the spoliation cause of action involves infringement of a property right.

1986Co. (1981) 117 Cal.App.3d 8, 12 [ 172 Cal.Rptr. 483 ].) A number of California cases have held that tortious interference with a person’s trade or business comes within the two-year limitation in section 339, subdivision 1, as an action upon an obligation or liability not founded upon an instrument in writing.

2025(The TJX Companies, Inc. v. Superior Court (2008) 163 Cal.App.4th 80, 84-85 ; Shamsian, at pp. 977-978.) Din emphasizes that his complaint did not request civil penalties, but “ ‘[t]he statute of limitations to be applied is determined by the nature of the right sued upon, not by the form of the action or the relief demanded.’ ” (Davies v. Krasna (1975) 14 Cal.3d 502, 515 .) Business and Professions Code section 2056 does not similarly prescribe a mandatory penalty, but to fall within Code of Civil Procedure section 338, as Din urges, the claim must be “upon a liability created by statute,” wh

2025Proc., § 338, subd. (a).) Health and Safety Code section 1278.5, subdivision (b)(3) states that any violation “shall be subject to a civil penalty of not more than twenty-five thousand dollars.” That penalty is mandatory, as evidenced by the Legislature’s use of the word “shall.” (Ibid.; see Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 978 [“civil penalty is mandatory” where statute provides violators “shall be liable for a civil penalty”].) Where a civil penalty is mandatory, the one-year limitations period in Code of Civil Procedure section 340, subdivision (a), and not the

2009The trial court here reasoned the one-year statute of limitations for defamation implicitly governs a section 3027.1 motion because section 3027.1 “permits a party to bring a claim for damages for false accusations and to do so within the context of a proceeding under the Family Code.” Because a false accusation of child abuse is a form of slander, the trial court reasoned Robert’s “claim for damages under Section 3027.1 and for attorney’s fees incurred in recovering those damages” was subject to Code of Civil Procedure section 340, subdivision (c). “[A] cause of action for defamation accrues

2009The trial court here reasoned the one-year statute of limitations for defamation implicitly governs a section 3027.1 motion because section 3027.1 “permits a party to bring a claim for damages for false accusations and to do so within the context of a proceeding under the Family Code.” Because a false accusation of child abuse is a form of slander, the trial court reasoned Robert’s “claim for damages under Section 3027.1 and for attorney’s fees incurred in recovering those damages” was subject to Code of Civil Procedure section 340, subdivision (c). “[A] cause of action for defamation accrues

2004(Roy, supra, 39 Cal.App.4th at p. 1073, fn. 25 .) In summary, we conclude that the trial court correctly applied the one-year limitation period of section 340(c) in this action.

2004(Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 569 [ 71 Cal.Rptr.2d 731 , 950 P.2d 1086 ].) Consistent with this mandate, we conclude the Legislature’s changes to certain statutes of limitations, coupled with a complete absence of *269 change to others, evinces a continuing intention to adhere to its earlier express intention to apply the one-year limitation period of section 340(c) to actions such as this, rather than the three-year period of section 4111 applicable to most actions under Division Four of the Commercial Code. 16 b.

2004(Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 569 [ 71 Cal.Rptr.2d 731 , 950 P.2d 1086 ].) Consistent with this mandate, we conclude the Legislature’s changes to certain statutes of limitations, coupled with a complete absence of *269 change to others, evinces a continuing intention to adhere to its earlier express intention to apply the one-year limitation period of section 340(c) to actions such as this, rather than the three-year period of section 4111 applicable to most actions under Division Four of the Commercial Code. 16 b.

1997(Edwards v. Fresno Community Hosp., supra, 38 Cal.App.3d 702, 704 ; Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 8 [ 16 Cal.Rptr.2d 400 ].) “Courts have frequently been asked to choose between the one-year period of section 340, subdivision 3, and the two-year period of section 339, subdivision 1.

1997(Edwards v. Fresno Community Hosp., supra, 38 Cal.App.3d 702, 704 ; Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 8 [ 16 Cal.Rptr.2d 400 ].) “Courts have frequently been asked to choose between the one-year period of section 340, subdivision 3, and the two-year period of section 339, subdivision 1.

1993Co. (1981) 117 Cal.App.3d 8 , 12 . . . .)” (Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d 473, 478 [ 222 Cal.Rptr. 79 ].) Thus, the question here is whether the cause of action for spoliation of evidence involves an infringement of a “property right” or of a “personal right.” Drawing from analyses of the spoliation tort in the realm of the exclusive remedy rule in workers’ compensation cases, we are of the view the spoliation cause of action involves infringement of a property right.

1993Co. (1981) 117 Cal.App.3d 8 , 12 . . . .)” (Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d 473, 478 [ 222 Cal.Rptr. 79 ].) Thus, the question here is whether the cause of action for spoliation of evidence involves an infringement of a “property right” or of a “personal right.” Drawing from analyses of the spoliation tort in the realm of the exclusive remedy rule in workers’ compensation cases, we are of the view the spoliation cause of action involves infringement of a property right.

1991(G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 277 [ 195 Cal.Rptr. 211 , 41 A.L.R.4th 653 ]; see Holland v. Nelson (1970) 5 Cal.App.3d 308, 312 [ 85 Cal.Rptr. 117 ]; Ashland Oil Co. of Cal. v. Union Oil Co. of Cal. (9th Cir. 1977) 567 F.2d 984 .) In the G.H.I.I. decision, the court stated as to California antitrust statutory provisions: “[W]e note that the Unfair Practices Act provides for recovery of actual (Bus. & Prof.

1991(G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 277 [ 195 Cal.Rptr. 211 , 41 A.L.R.4th 653 ]; see Holland v. Nelson (1970) 5 Cal.App.3d 308, 312 [ 85 Cal.Rptr. 117 ]; Ashland Oil Co. of Cal. v. Union Oil Co. of Cal. (9th Cir. 1977) 567 F.2d 984 .) In the G.H.I.I. decision, the court stated as to California antitrust statutory provisions: “[W]e note that the Unfair Practices Act provides for recovery of actual (Bus. & Prof.

1991(G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 277 [ 195 Cal.Rptr. 211 , 41 A.L.R.4th 653 ]; see Holland v. Nelson (1970) 5 Cal.App.3d 308, 312 [ 85 Cal.Rptr. 117 ]; Ashland Oil Co. of Cal. v. Union Oil Co. of Cal. (9th Cir. 1977) 567 F.2d 984 .) In the G.H.I.I. decision, the court stated as to California antitrust statutory provisions: “[W]e note that the Unfair Practices Act provides for recovery of actual (Bus. & Prof.

1991(G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 277 [ 195 Cal.Rptr. 211 , 41 A.L.R.4th 653 ]; see Holland v. Nelson (1970) 5 Cal.App.3d 308, 312 [ 85 Cal.Rptr. 117 ]; Ashland Oil Co. of Cal. v. Union Oil Co. of Cal. (9th Cir. 1977) 567 F.2d 984 .) In the G.H.I.I. decision, the court stated as to California antitrust statutory provisions: “[W]e note that the Unfair Practices Act provides for recovery of actual (Bus. & Prof.

1990Co. (1971) 20 Cal. App.3d 807, 809, 814-815 [ 97 Cal. Rptr. 874 ].) Although the Loves also purported to plead a cause of action for "breach of statutory duties," alleging violations of Insurance Code section 790.03, it is now settled there is not per se such a private cause of action. ( Moradi-Shalal v. Fireman's Fund Ins.

1990Co. (1971) 20 Cal. App.3d 807, 809, 814-815 [ 97 Cal. Rptr. 874 ].) Although the Loves also purported to plead a cause of action for "breach of statutory duties," alleging violations of Insurance Code section 790.03, it is now settled there is not per se such a private cause of action. ( Moradi-Shalal v. Fireman's Fund Ins.

1988(See Petrucci v. Heidenreich (1941) 43 Cal.App.2d 561, 562 [ 111 P.2d 421 ].) However, where the person against whom the action may be brought dies before the expiration of the applicable statute of limitations, an action against the estate under Probate Code section 721 may be commenced within one year after the applicable statute has run. (§ 353.) Thus, where the defendant has died, section 353 serves to extend the one-year limitation period of section 340, subdivision (3) by an additional year for an action against the estate under Probate Code section 721.

1988(See Petrucci v. Heidenreich (1941) 43 Cal.App.2d 561, 562 [ 111 P.2d 421 ].) However, where the person against whom the action may be brought dies before the expiration of the applicable statute of limitations, an action against the estate under Probate Code section 721 may be commenced within one year after the applicable statute has run. (§ 353.) Thus, where the defendant has died, section 353 serves to extend the one-year limitation period of section 340, subdivision (3) by an additional year for an action against the estate under Probate Code section 721.