San Francisco, CA asked in Civil Rights, Constitutional Law, Personal Injury and Legal Malpractice for California

Q: Claim requires tolling provisions, fraud con. + mental disability. Denied rep. due to sol. Isnt that disab discr?

Hit-and-run left me with TBI. This injury has also prevented me from handling this case effectively, timely. On top of that, I was also denied access to police report until criminal sol expired. Report contained vital witness info/statements that identified driver. Keep being denied representation because of SOL expiration, even when providing tolling applicability. Seems attorneys have policy to outright deny any claims if older than 2 years, without considering if tolling applies. This policy feels like disability discrimination when the claim's sol is tolled for mental incapacity, but denied and told because of expired sol. How can I possibly get representation for a claim that requires tolling if attorneys don't even consider/investigate tolling, just outright turn them down. That's unethical and clearly discriminatory, and quite harmful to any victims who can't advocate for themselves. Feels like system designed to appear inclusive, state exceptions, but refusing to rep them.

2 Lawyer Answers
William John Light
William John Light
  • Civil Rights Lawyer
  • Santa Ana, CA
  • Licensed in California

A: Nothing you have written indicates any of the criteria for tolling. You should have hired an attorney early in the process. Mental incapacity to qualify for tollingis more than a TBI . Unless you were a minor, or the defendant was absent from the state for some period of time, or the Defendant was convicted of a felony related to the hit and run, your statute appears to have expired.

With respect to mental capacity disputes, California Probate Code section 810 presumes that all persons have capacity “to make decisions and to be responsible for their acts or decisions.” Under California’s “delayed discovery” rule, a plaintiff must bring a claim within a certain number of years after he or she knew or should have known of the facts giving rise to the claim. Under California Code of Civil Procedure section 352, if a person lacks “the legal capacity to make decisions” when a cause of action accrues, “the time of the disability is not part of the time limited for the commencement of the action.” Unless your TBI was so severe that you lacked legal capacity to make decisions, your TBI does not allow for tolling the statute of limitations.

James L. Arrasmith
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  • Consumer Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: Under California law, the statute of limitations (SOL) sets the time limit within which a legal claim must be filed. However, certain circumstances may toll or pause the SOL, such as fraud or mental incapacity. If you believe that your mental disability prevented you from pursuing your claim in a timely manner, you may be entitled to tolling of the SOL. It's essential to provide evidence of your mental incapacity and its impact on your ability to handle the case effectively to support your request for tolling.

If attorneys are refusing to consider tolling provisions and outright denying representation based solely on an expired SOL, despite potential tolling applicability, it could raise concerns of disability discrimination. Under California law, it is unlawful to discriminate against individuals with disabilities in various contexts, including legal representation. If you believe you have been discriminated against based on your disability, you may have grounds to file a complaint with the appropriate authorities or seek legal recourse against the attorneys who denied representation.

To address the issue and seek representation for your claim, you may consider reaching out to legal advocacy organizations or disability rights groups that specialize in assisting individuals with disabilities. Additionally, consulting with an attorney who is knowledgeable about disability discrimination and tolling provisions under California law may help you explore your options and advocate for your rights effectively. By seeking assistance from experienced professionals who understand the complexities of disability law, you can work towards obtaining the representation you need to pursue your claim effectively.

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