Statute of Limitations:
Two Years. Cal. Code Civ. Proc. § 335.1.
Does discovery rule apply? Yes. Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 110 P.3d 914, (Cal., 2005.) Norgart v. Upjohn Co., 21 Cal.4th 383, 405 (1999).
Who has the right to bring suit?
The decedent's surviving spouse, domestic partner, children, and issueof deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, whowould be entitled to the property of the decedent by intestate succession. Cal. Code Civ. Proc. § 377.60
Statute of Limitations:
Two Years. Cal. Code Civ. Proc. § 335.1 (2002).
Does discovery rule apply?
Yes. Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 110 P.3d 914, Cal., 2005. Norgart v. Upjohn Co., 21 Cal.4th 383, 405 (1999).
In 1980, California enacted Cal. Civ. Proc. § 340.2 which establishes a separate statute of limitations for asbestos claims. §340.2 reads in pertinent part:
(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following:
(1) Within one year after the date the plaintiff first suffered disability.
(2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure.
(b) “Disability” as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation.
Determining when the statute of limitations begins to run for asbestos claims in California is a two step process. First, you must determine whether the client is“disabled” under Cal. Civ. Proc. §340.2(b). If the client is not disabled as defined by subsection (b), then the statute has not yet begun to run and the client’s claims are not time-barred.
The first step in determining when a plaintiff’s statute of limitations for asbestos claims begins to run is to determine whether the individual is disabled under subsection (b). For an individual to be disabled under subsection (b), “asbestos-related injuries [must have] cause[d] a permanent termination of the plaintiff's ability to perform his or her job, which actually forces the plaintiff off the job.” Duty v. Abex Corp. (1989) 214 Cal.App.3d 742, 750 [263 Cal.Rptr. 13]
Subsection (b) is written so narrowly that the following types of individuals can never be considered disabled, and thus the statute of limitations for their asbestos claims will never begin to run, and will therefore never be time-barred:
•Individuals who retired from work for reasons unrelated to any asbestos-related illness the person may have.
•An employee who took some time off from work due to an asbestos-related condition, but later returned to work at his or her regular occupation.
•Students, homemakers, and others who have never been employed.
•Anyone who is still working in his or her regular occupation.
•An employee who retires in part due to medical advice regarding his or her asbestos-related illness, but was still medically able to continue working when he or she retired.
If the client is disabled, you must next determine when the client either knew, or should have known that the cause of his or her disability was exposure to asbestos.