Success in First Test of New Two Year Bodily Injury Statute of Limitations Law

July 1, 2003

Jefferson S. Smith and Ian Fusselman of the San Diego office successfully demurred to a complaint in the office's first test of Code of Civil Procedure Section 335.1, effective January 1, 2003. Section 335.1 established a two-year statute of limitations period for personal injury actions. Plaintiff filed suit in January 2003 for a trip-and-fall accident that took place in January 2001.

Plaintiff argued that public policy considerations supported a trial on the merits and that there would be no difficulties associated with lost or destroyed evidence or witness availability.

On demurrer, the defense argued that statutes, including statutes of limitations, should not be applied retroactively unless there is express language in the statute demonstrating that the legislature intended such an application. Section 335.1 is silent as to retroactivity. Section 340.10 does provide that Section 335.1 should be applied retroactively, but only to the victims of September 11, 2001.

The Court agreed with the defense, finding that Section 335.1 does not contain any express language supporting retroactive application and sustaining defendant's demurrer without leave to amend. Therefore, because plaintiff's accident happened in 2001 and was outside the statute of limitations, plaintiff was not able to resurrect his claim.