tolling doctrine in California

2019Our state Supreme Court has summarized this tolling principle as follows: "[U]nder limited circumstances, if class certification is denied, the statute of limitations is tolled from the time of commencement of the suit to the time of denial of certification for all purported members of the class who either make timely motions to intervene in the surviving individual action ( [ American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 ,] 552-553 [ 94 S.Ct. 756 , 38 L.Ed.2d 713 ] [ ( American Pipe ) ] ), or who timely file their individual actions ( Crown, Cork & Seal Co. v. Parker (1983) 462

2019Our state Supreme Court has summarized this tolling principle as follows: "[U]nder limited circumstances, if class certification is denied, the statute of limitations is tolled from the time of commencement of the suit to the time of denial of certification for all purported members of the class who either make timely motions to intervene in the surviving individual action ( [ American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 ,] 552-553 [ 94 S.Ct. 756 , 38 L.Ed.2d 713 ] [ ( American Pipe ) ] ), or who timely file their individual actions ( Crown, Cork & Seal Co. v. Parker (1983) 462

2023(See Jolly, supra, 44 Cal.3d at p. 1120 .) The California Supreme Court began its analysis by observing that “in the absence of controlling state authority, California courts should utilize the procedures of rule 23 of the Federal Rules of Civil Procedure.” (Jolly, at p. 1118.) Drawing from American Pipe, the Jolly court identified “protection of the class action device” and “effectuation of the purposes of the statute of limitations” as “two major policy considerations” underlying the high court’s tolling rule.

2020(Jolly, supra, 44 Cal.3d at p. 1121 , quoting American Pipe, supra, 414 U.S. at p. 554 .) Our high court explained these policies “ ‘are satisfied when . . . a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.’ ” (Jolly, at p. 1121, quoting American Pipe, at pp. 554–555.) Adequate notice to the defendant is key to ensuring fair application of the tolling rule.

2022(ZF Micro Devices, supra, 5 Cal.App.5th at pp. 87–88; see, e.g., Whittier v. Visscher (1922) 189 Cal. 450, 456 ; Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 746 .) The court in ZF Micro Devices acknowledged it was unable to identify “any post– 1971 case that has specifically held that the tolling doctrine applies to permissive, as well as compulsory, cross-complaints, as cross-complaints are defined under section 426.10 et seq.” (ZF Micro Devices, at p. 88.) Nevertheless, the post-1971 intermediate appellate decisions which recited the rule stated in Jones did so “with a signi

2016In 1973, the Supreme Court in a footnote, citing Whittier, supra, 189 Cal. at page 456 , described the tolling doctrine broadly: “Ordinarily the statute of limitations will bar a cross-complaint in the same fashion as if the defendant had brought an independent action, unless the original complaint was filed before the statute of limitations on the cross-complaint had elapsed. [Citations.]” (Liberty Mut.

2020(Jolly, supra, 44 Cal.3d at p. 1121 , quoting American Pipe, supra, 414 U.S. at p. 554 .) Our high court explained these policies “ ‘are satisfied when . . . a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.’ ” (Jolly, at p. 1121, quoting American Pipe, at pp. 554–555.) Adequate notice to the defendant is key to ensuring fair application of the tolling rule.

2020(American Pipe, supra, 414 U.S. at pp. 554-555.) “The policies of ensuring essential fairness to defendants and of barring a plaintiff who ‘has slept on his rights,’ [citation], are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” (Ibid.) Applying a new tolling rule based on Utah’s class suit, the high court held the motions to int

2018In assessing whether a prosecuting entity's or public agency's determination is final, we look to the totality of the circumstances along the entire timeline of the decision maker's involvement. ( Richardson , supra , 214 Cal.App.4th at pp. 693-694, 154 Cal.Rptr.3d 145 [looking to what happened after interim decisions not to prosecute].) Although POBRA itself does not specify which party bears the burden of proving the applicability of tolling ( id. at p. 698, 154 Cal.Rptr.3d 145 ), the general rule is that the party who invokes a tolling doctrine bears the burden *727 of proving its applicabi

2018In assessing whether a prosecuting entity's or public agency's determination is final, we look to the totality of the circumstances along the entire timeline of the decision maker's involvement. ( Richardson , supra , 214 Cal.App.4th at pp. 693-694, 154 Cal.Rptr.3d 145 [looking to what happened after interim decisions not to prosecute].) Although POBRA itself does not specify which party bears the burden of proving the applicability of tolling ( id. at p. 698, 154 Cal.Rptr.3d 145 ), the general rule is that the party who invokes a tolling doctrine bears the burden *727 of proving its applicabi

2022(See id. at pp. 952–953, 960–965.) 16 cross-complaint against him [or her],’ regardless of whether such claims were related to those upon which the suit was brought.” (Id. at p. 86, quoting § 428.10, subd. (a).) The court in ZF Micro Devices ultimately concluded that “a defendant’s cross- complaint against the plaintiff, irrespective of whether it is related to the matters asserted in the complaint, is entitled to the benefit of the tolling doctrine.” (ZF Micro Devices, supra, 5 Cal.App.5th at p. 92 .) In reaching this decision, the court relied primarily on pre-1971 California Supreme Court t

2016Co. v. Fales (1973) 8 Cal.3d 712, 715, fn. 4 [ 106 Cal.Rptr. 21 , 505 P.2d 213 ]; see also id. at p. 720 (dis. opn. of Sullivan, J.) [“a cross-complaint is not barred if the period of limitation has not already run on *89 the cause of action by the time the complaint is filed”].) 9 And while Jones, supra, 28 Cal.2d 627 , has been cited by intermediate appellate courts in several post-1971 decisions, those courts, for the most part, have recited the rule stated in Jones with a significant, unexplained, revision limiting the tolling doctrine to cross-complaints with claims related to those alleg

2014(See Elkins, supra, 12 Cal.3d at p. 419 & fn. 8 [lamenting “the inequity that a duplicative filing requirement might work upon an injured party” and noting that “the conscientious attorney, absent a tolling rule, would be induced in numerous cases to file in both tribunals”].) As the Court of Appeal in Myers, supra, 6 Cal.App.3d at page 636 , stated in explaining its conclusion that equitable tolling may apply where a plaintiff pursues a voluntary administrative remedy: “[T]he question of tolling is not to be determined retrospectively depending upon the success or failure of the plaintiff in

1985We view this case as an application of the tolling rule of Elkins v. Derby, supra, 12 Cal.3d at p. 414.) 7 In Kaiser Foundation Hospitals, supra, 39 Cal.3d at page 67 , footnote 8, our Supreme Court assigned the burden of proving an employee’s actual knowledge of his rights under the state Act to the employer.

2022Thus, in California-American Water Co. v. Marina Coast Water Dist. (2016) 2 Cal.App.5th 748 , the court stated, “As a general rule, the filing of a complaint tolls the statute of limitations applicable to a cross-complaint so long as the cross-complaint is related to the original complaint and its causes of action were not barred when the original complaint was filed.” (Id. at p. 763, citing Trindade, supra, 29 Cal.App.3d at p. 860 .) But as the court explained in ZF Micro Devices, the statement of the rule in Trindade, later repeated in California-American Water and other cases, failed to spe

2016(See California-American Water Co. v. Marina Coast Water Dist. (2016) 2 Cal.App.5th 748, 762-763 [ 206 Cal.Rptr.3d 439 ] [compulsory cross-complaint for declaratory relief concerning same controversy alleged in complaint]; Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69-70 [ 28 Cal.Rptr.3d 124 ] [compulsory cross-complaint; defendant’s claim for personal injuries against plaintiff arose out of same accident as plaintiffs personal injury claim against defendant]; Luna Records Corp., Inc. v. Alvarado (1991) 232 Cal.App.3d 1023, 1027-1028 [ 283 Cal.Rptr. 865 ] [compulsory cross-complaint; rescissio

1990Barna v. Passage 350 Canon (1986) 186 Cal.App.3d 440, 447 [ 230 Cal.Rptr. 764 ] [“under the tolling rule of Moran , the reasonable diligence of the plaintiff is placed in issue under the discretionary dismissal statutes [], but not under the mandatory dismissal statute”]; Hughes v. Southern Cal. Rapid Transit Dist. (1985) 173 Cal.App.3d 512 [ 219 Cal.Rptr. 82 ] [no diligence discussion].) But the Barna and Hughes courts have reconsidered their views and now reject the notion that a plaintiff need not diligently pursue a timely trial date after arbitration.

1990Barna v. Passage 350 Canon (1986) 186 Cal.App.3d 440, 447 [ 230 Cal.Rptr. 764 ] [“under the tolling rule of Moran , the reasonable diligence of the plaintiff is placed in issue under the discretionary dismissal statutes [], but not under the mandatory dismissal statute”]; Hughes v. Southern Cal. Rapid Transit Dist. (1985) 173 Cal.App.3d 512 [ 219 Cal.Rptr. 82 ] [no diligence discussion].) But the Barna and Hughes courts have reconsidered their views and now reject the notion that a plaintiff need not diligently pursue a timely trial date after arbitration.

2017An appellate court ordinarily “will not consider an argument ‘raised in an appeal from a grant of summary judgment . . . if it was not raised below and requires consideration of new factual questions.’ ” (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335 (Noe); Winchester Mystery House, LLC v. Global Asylum, Inc. 10 One of the exhibits cited by plaintiffs’ counsel appears to support our earlier conclusion that plaintiffs were subject to actual and appreciable harm as of September 2007.

2017An appellate court ordinarily “will not consider an argument ‘raised in an appeal from a grant of summary judgment . . . if it was not raised below and requires consideration of new factual questions.’ ” (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335 (Noe); Winchester Mystery House, LLC v. Global Asylum, Inc. 10 One of the exhibits cited by plaintiffs’ counsel appears to support our earlier conclusion that plaintiffs were subject to actual and appreciable harm as of September 2007.

2016(See California-American Water Co. v. Marina Coast Water Dist. (2016) 2 Cal.App.5th 748, 762-763 [ 206 Cal.Rptr.3d 439 ] [compulsory cross-complaint for declaratory relief concerning same controversy alleged in complaint]; Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69-70 [ 28 Cal.Rptr.3d 124 ] [compulsory cross-complaint; defendant’s claim for personal injuries against plaintiff arose out of same accident as plaintiffs personal injury claim against defendant]; Luna Records Corp., Inc. v. Alvarado (1991) 232 Cal.App.3d 1023, 1027-1028 [ 283 Cal.Rptr. 865 ] [compulsory cross-complaint; rescissio

2016(See California-American Water Co. v. Marina Coast Water Dist. (2016) 2 Cal.App.5th 748, 762-763 [ 206 Cal.Rptr.3d 439 ] [compulsory cross-complaint for declaratory relief concerning same controversy alleged in complaint]; Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69-70 [ 28 Cal.Rptr.3d 124 ] [compulsory cross-complaint; defendant’s claim for personal injuries against plaintiff arose out of same accident as plaintiffs personal injury claim against defendant]; Luna Records Corp., Inc. v. Alvarado (1991) 232 Cal.App.3d 1023, 1027-1028 [ 283 Cal.Rptr. 865 ] [compulsory cross-complaint; rescissio

2016(See California-American Water Co. v. Marina Coast Water Dist. (2016) 2 Cal.App.5th 748, 762-763 [ 206 Cal.Rptr.3d 439 ] [compulsory cross-complaint for declaratory relief concerning same controversy alleged in complaint]; Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69-70 [ 28 Cal.Rptr.3d 124 ] [compulsory cross-complaint; defendant’s claim for personal injuries against plaintiff arose out of same accident as plaintiffs personal injury claim against defendant]; Luna Records Corp., Inc. v. Alvarado (1991) 232 Cal.App.3d 1023, 1027-1028 [ 283 Cal.Rptr. 865 ] [compulsory cross-complaint; rescissio

2016(See California-American Water Co. v. Marina Coast Water Dist. (2016) 2 Cal.App.5th 748, 762-763 [ 206 Cal.Rptr.3d 439 ] [compulsory cross-complaint for declaratory relief concerning same controversy alleged in complaint]; Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69-70 [ 28 Cal.Rptr.3d 124 ] [compulsory cross-complaint; defendant’s claim for personal injuries against plaintiff arose out of same accident as plaintiffs personal injury claim against defendant]; Luna Records Corp., Inc. v. Alvarado (1991) 232 Cal.App.3d 1023, 1027-1028 [ 283 Cal.Rptr. 865 ] [compulsory cross-complaint; rescissio

2016Co. v. Fales (1973) 8 Cal.3d 712, 715, fn. 4 [ 106 Cal.Rptr. 21 , 505 P.2d 213 ]; see also id. at p. 720 (dis. opn. of Sullivan, J.) [“a cross-complaint is not barred if the period of limitation has not already run on *89 the cause of action by the time the complaint is filed”].) 9 And while Jones, supra, 28 Cal.2d 627 , has been cited by intermediate appellate courts in several post-1971 decisions, those courts, for the most part, have recited the rule stated in Jones with a significant, unexplained, revision limiting the tolling doctrine to cross-complaints with claims related to those alleg

2016Co. v. Fales (1973) 8 Cal.3d 712, 715, fn. 4 [ 106 Cal.Rptr. 21 , 505 P.2d 213 ]; see also id. at p. 720 (dis. opn. of Sullivan, J.) [“a cross-complaint is not barred if the period of limitation has not already run on *89 the cause of action by the time the complaint is filed”].) 9 And while Jones, supra, 28 Cal.2d 627 , has been cited by intermediate appellate courts in several post-1971 decisions, those courts, for the most part, have recited the rule stated in Jones with a significant, unexplained, revision limiting the tolling doctrine to cross-complaints with claims related to those alleg

1990(Moran v. Superior Court, supra, 35 Cal.3d at p. 240 ; see also fn. 3, ante.) After Moran , however, in an apparent zeal to apply the new tolling rule, several courts ignored or relegated the reasonable diligence standard to a less prominent position.

1988“Since the trial court alone has the power to order a matter placed upon its trial calendar, section 1141.20 imposes a duty upon the court sua sponte to recalendar the trial in ‘the same place ... it had prior to arbitration.’ [Fn. omitted.]” (Moran v. Superior Court (1983) 35 Cal.3d 229, 241 [ 197 Cal.Rptr. 546 , 673 P.2d 216 ].) 2 Based on section 1141.20, *355 Moran held once a timely request for trial de novo has been made, the running of the five-year period is tolled until the new trial date set by the trial court pursuant to the sua sponte duty.

2021(Lantzy, supra, 31 Cal.4th at p. 367 [“the extraordinary length of the limitations period set forth in section 337.15 weighs strongly against the need for . . . a tolling rule as a matter of fair procedure”].) III DISPOSITION We affirm the judgment.

2005Moreover, the extraordinary length of the limitations period set forth in section 337.15 weighs strongly against the need for such a tolling rule as a matter of fair procedure.” (Lantzy, supra, 31 Cal.4th at p. 367 .) A statute of repose has nothing to do with the date of injury, but bars all suits after the expiration of a specified time from the manufacture or delivery of a product or a transaction.

2018The tolling exception for criminal investigations seeks to balance two competing interests: The public safety officer's POBRA-based right to a speedy investigation and adjudication ( Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064 , 1075, 55 Cal.Rptr.3d 14 ( Breslin ) ), and the public agency's or prosecuting entity's right to conduct a fulsome criminal investigation on an efficient, but not unduly cramped, timetable.

2018The tolling exception for criminal investigations seeks to balance two competing interests: The public safety officer's POBRA-based right to a speedy investigation and adjudication ( Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064 , 1075, 55 Cal.Rptr.3d 14 ( Breslin ) ), and the public agency's or prosecuting entity's right to conduct a fulsome criminal investigation on an efficient, but not unduly cramped, timetable.

2016And the rationale for the doctrine—that by filing the complaint “the plaintiff has thereby waived the [statute of limitations defense] and permitted the defendant to make all proper defenses to the cause of action pleaded” (Western etc. Co. v. Tuolumne etc. Corp. (1944) 63 Cal.App.2d 21, 31 [ 146 P.2d 61 ])—appears applicable to both compulsory and permissive cross-complaints.

2016And the rationale for the doctrine—that by filing the complaint “the plaintiff has thereby waived the [statute of limitations defense] and permitted the defendant to make all proper defenses to the cause of action pleaded” (Western etc. Co. v. Tuolumne etc. Corp. (1944) 63 Cal.App.2d 21, 31 [ 146 P.2d 61 ])—appears applicable to both compulsory and permissive cross-complaints.

2016While there are certainly countervailing public policy concerns favoring the application of statutes of limitations to bar stale claims (see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396-397 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ]), we cannot ignore existing law that the tolling doctrine is applied broadly to both compulsory and permissive cross-complaints.

2016While there are certainly countervailing public policy concerns favoring the application of statutes of limitations to bar stale claims (see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396-397 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ]), we cannot ignore existing law that the tolling doctrine is applied broadly to both compulsory and permissive cross-complaints.

2016“The application of the statute of limitations on undisputed facts is a purely legal question [citation]; accordingly, we review the lower courts’ rulings de novo.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 [ 151 Cal.Rptr.3d 827 , 292 P.3d 871 ].) *79 A. The ZF Cross-complaint Was Permissive 1.

2016“The application of the statute of limitations on undisputed facts is a purely legal question [citation]; accordingly, we review the lower courts’ rulings de novo.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 [ 151 Cal.Rptr.3d 827 , 292 P.3d 871 ].) *79 A. The ZF Cross-complaint Was Permissive 1.

2016We therefore conclude, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ], that we are bound by California Supreme Court precedent to the effect that a defendant’s cross-complaint against the plaintiff, irrespective of whether it is related to the matters asserted in the complaint, is entitled to the benefit of the tolling doctrine.

2016We therefore conclude, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ], that we are bound by California Supreme Court precedent to the effect that a defendant’s cross-complaint against the plaintiff, irrespective of whether it is related to the matters asserted in the complaint, is entitled to the benefit of the tolling doctrine.