When does a statute of limitation begin running, i.e., when does a cause of action accrue and what’s the deadline for filing suit? That depends.
In the recent case of Hall v Goodwill Industries of Southern California, No. B215860 (Mar. 16, 2011), an ex-employee had been given a right-to-sue notice by California’s Dept. of Fair Employment and Housing (DFEH). DFEH had issued that notice on December 24, 2004, but it was not received until December 31, 2004. Suit was filed on Dec. 30, 2005, within one year of receipt, but more than one year after issuance of the notice.
Both the trial court and the appellate court ruled that the suit was too late, as California Government Code section 12965(b) states that the right-to-sue letter must inform the addressee/claimant that suit may be filed within one year of the date of that notice, which the notice did. So, the deadline was clear. Also, the California Legislature had amended the statute to the replace the suit deadline of one year from “receipt of” the notice with “from the date of” the notice. Therefore, suit should have been filed by December 24, 2005.
Of course, the claimant will blame the lawyer, who may or may not be blameworthy. Hopefully, the lawyer documented his file and had warned the client of the consequences of delay. Too often, clients go to lawyers at the last minute, don’t pay the required retainer, don’t sign the engagement letter, don’t provide the necessary information and expect the lawyers to work over the holidays (note the dates above), while the clients are off skiing.
Rarely is there a good reason to delay. Smart lawyers send those clients an e-mail telling them the deadline for filing suit and that, if they are not authorized to file a few days before that (in case there’s a glitch, e.g., power outages, traffic congestion, electronic issues), they cannot guarantee a timely filing. Besides, what’s gained by a few days more delay? Almost always – nothing.
So, lawyers and clients, avoid the ugliness of a malpractice claim between you. File the underlying lawsuit in plenty of time. Don’t procrastinate – it won’t get any better. Now, this is not to say one should rush to the courthouse. All deliberate speed is the standard.