SB 488 was enacted into law on September 10, 2002. Its provisions make two significant changes in the procedural framework in which civil litigation now operates in our state:

(1) The 1-year statute of limitations for personal injury actions is increased to 2 years.

(2) The minimum notice period that applies to a motion for summary judgment or adjudication (“437c motion”) is almost tripled.*

New Statute of Limitations. The new statute of limitations, Code of Civil Procedure Section 335.1, establishes a 2-year statute of limitations for tort actions based upon assault, battery, injury to, or death of, an individual caused by the wrongful act or neglect of another. This is a marked change from the 1-year statute of limitations applicable to personal injury actions that has existed in California for over 100 years.

The new 2-year statute applies to any cause of action that was not yet time-barred as of the date of its enactment. Thus, cases pending as of September 10, 2002 in which the earlier one-year statute of limitations has not yet run will now have the benefit of the 2-year statute. The new 2-year statute presents potential problems to the defense in terms of locating and preserving potential evidence. This would particularly be the case when the claim involved an accident or other incident for which the defendant had received no notice. It is tough enough to try to re-enact a scene or event when notice of claim is provided 9 or 10 months post-accident. In those instances, site conditions often have changed dramatically, and witnesses are hard to locate or their memories have blurred. Those difficulties will be multiplied exponentially in cases in which, for example, notice of the claim is first made 20 months post-accident. The solution to this dilemma is for the client to be ever vigilant about the possibility of such claims, and to preserve evidence of any significant accident or incident whenever possible.

New Notice Period for 437c Motions. SB 488 has amended the provisions of Code of Civil Procedure Section 437c to increase the minimum notice period of a 437c motion from 28 days to 75 days, plus service. The amendment also adds new sections allowing additional discovery after continuance (subdiv. (i)), and requiring a reviewing court to allow supplemental briefing by the parties on new evidence or grounds granting summary judgment or adjudication not relied upon by the trial court (subdiv. (m)(2)), as well as making some other technical changes. In adopting this measure, the Legislature (SB 488, Section 1, subdiv. (e), 09/10/02) made the following statement of intent:

Longstanding California law favors trial on the merits. Summary judgment is a drastic procedure and should only be granted when an action is without merit and both sides have a fair opportunity to address the merits of an action or when an action lacks a triable issue of fact. It is important to extend the time to respond to a motion for summary judgment to assure that all evidence is before a court before ruling on the motion. This act will assure that frivolous actions are disposed of, and those that have merit can proceed to a fair trial.

These new notice provisions do not sound the death knell for disposing of all or part of a case via a 437c motion. Nonetheless, this longer notice term will certainly cause this option to be much more difficult to pursue, especially in short cause or personal injury actions. Current fast-track rules which set trial for such matters within one year of the filing date will wreak havoc on the defendant’s timely exercise of this remedy, while a plaintiff will have had up to 2 years to prepare the case before filing. Especially in instances in which service has been delayed, there are delays in receiving responses by plaintiff to formal discovery, or exculpatory evidence is just slow to develop, a defendant with a case that otherwise should be amendable to disposition via a 437c motion will be hard-pressed to demonstrate the basis for such relief on a timely basis. When the 437c motion needs to be heard no later than 30 days before trial, and has a minimum notice period of 75 days plus service, that equates to having the moving papers filed and served no later than 108 days before trial. That filing cutoff date is well before the date expert designations typically are set. It also oftentimes takes 60 to 90 days from the date of filing for a matter to be served, and another 90 days or more from the answer date for the defense to receive responses to preliminary discovery. Thus, one can foresee a time crunch developing in which the defense has a very narrow window in which to seek otherwise appropriate relief via a 437c motion. Unless relief is sought at the trial setting conference, counsel undoubtedly will be caught short, and the client will be stuck in the case with the high costs of trial preparation.

This new procedural obstacle highlights the need for the aggressive pursuit of formal discovery to be undertaken early on in the case, with appropriate motions to compel pursued sooner rather than later. It also highlights the need for defense counsel in the appropriate case to alert the trial court of the possibility of a dispositive motion potentially eliminating some or all of the issues presented in a given matter, and the consequent need for a later trial listing than usual.

*The full text of the statute is available at www.leginfo.ca.gov. For those of you not familiar with that site, once you are in the site, click on the center button, “California Law”; when that page opens, click on the word “Statutes” on the first line of text, then in the search engine page enter the chapter number “488” the year “2002” and then hit “search.”

Fredrickson, Mazeika & Grant, LLP, is a full service law firm with offices in San Diego, Las Vegas, San Francisco and Los Angeles. The firm’s specialty areas include construction law & construction defect, products liability, personal injury & property damage, business & real property transactions, business litigation, transportation litigation, pharmacy law, environmental/toxic tort claims, insurance law, real estate & land use litigation, equine law, and general civil litigation.

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