Howard v. Smithkline Beecham Corp.
Opinion of the Court
MEMORANDUM
The district court correctly concluded that Howard’s claim is barred by limitations.
Howard’s attorney’s declaration March 28, 2001, combined with Howard’s own letter November 13, 2001, establishes that he “suspect[ed]” the claimed wrongdoing at least as early as November 13, 2001.
Effective January 1, 2003, the statute of limitations applicable to actions such as this was extended from one to two years. Compare Cal.Civ.Proc.Code § 340(3) (one year statute of limitations for “injury to ... one caused by the wrongful act or neglect of another”), with Cal.Civ.Proc. Code § 335.1 (West 2006) (two year statute of limitations for same). This change does not apply retroactively. See Doe v. Mann, 285 F.Supp.2d 1229, 1241 n. 6 (N.D.Cal. 2003). Therefore, because Howard’s cause of action accrued no later than November 13, 2001, it was subject to a one-year statute of limitations. See Cal. Civ.Proc.Code § 335.1 (West 2006).
The statute of limitations may be tolled if the defendant to an action “fraudulently concealed facts which would have led [the plaintiff] to discover his potential cause of action.” Snow v. A.H. Robins Co., Inc., 165 Cal.App.3d 120, 211 Cal.Rptr. 271, 275 (1985). Though Howard argues that such tolling is appropriate here, he has submitted no admissible evidence to support this claim.
Finally, the statute of limitations is tolled for a maximum of two years if the plaintiff is imprisoned at the time the cause of action accrued. See Cal.Civ.Proc. Code § 352.1 (West 2006). Assuming that Howard was imprisoned at all relevant time, giving him three years instead of one to file suit, he would have had to file by November 2004. He did not file suit until August 1, 2005.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Reference
- Full Case Name
- Wyatt HOWARD, Plaintiff—Appellant v. SMITHKLINE BEECHAM CORPORATION, Defendants—Appellees
- Status
- Published