POSTMODERNVENUS will not sit quietly during this time of unrest and change. She is guided by the words of Dr. Martin Luther King Jr. who said — Injustice anywhere is a threat to justice everywhere.
How many more survivors, who report to law enforcement, will be coerced and belittled as their justice is denied by the SFPD before we make a change? #ENOUGHISENOUGH - Law enforcement response to criminal investigations have come into question but these responses are characteristic of larger law enforcement policies and institutions. I did not find out until recently that the police violated my right to judicial access by failing to investigate the crime and by intentionally concealing forensic evidence from the case-file so that a possible repeat offender was not prosecuted. Their failure to do so limited my ability to obtain legal redress to such degree that it constituted a denial of judicial access. The possibility of timely legal redress had been thwarted by police cover-up.
There are few legal exceptions to the Statutes of Limitations (SOL) and THE DELAYED DISCOVERY RULE is one of them. It effectively suspends, or tolls, the statute of limitations, which won’t start to run until an injury was discovered, rather than when it happened. For example, if an injury wasn’t discovered until years after it happened, the two-year period commences on the day of discovery. In California, the statute of limitations for personal injury lawsuits is two years, while other statutes exist depending on the type of case. While limiting the time to file a lawsuit has advantages, the discovery rule considers the fact it’s not always reasonably possible a person will be fully aware of an injury until much later.
The Rule applies in certain circumstances where it is not reasonably possible for a person to discover the cause of injury or even know that an injury has occurred, until an extended period of time after the act which caused the alleged injury. In these situations, THE DELAYED DISCOVERY RULE operates to “postpone the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.”The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue.
THE DELAYED DISCOVERY RULE is particularly applicable in medical malpractice and police procedural malpractice litigation. Specifically, where it is difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries (e.g., where the cause or the injuries are hidden for a substantial period of time). Often a plaintiff will invoke the rule in situations where symptoms of an injury allegedly caused by malpractice were present soon after treatment, but plaintiff did not realize the connection until after the deadline to file suit.
While the delayed discovery rule protects Plaintiffs that find themselves in situations where alleged malpractice is not readily obvious, it does impose a level of diligence on a plaintiff. “Plaintiffs must conduct a reasonable investigation after becoming aware of an injury and are charged with knowledge of information that would have been revealed by such an investigation. “A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.”
Even a reasonable suspicion of a claim is sufficient to trigger accrual. A plaintiff has reason to know a potential claim exists when he or she has reason to suspect a factual basis for its elements. In other words, “suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as suspicion exists, it is clear that the Plaintiff must go find the facts; she cannot wait for the facts to find her.”
“Under the delayed discovery rule, a cause of action accrues and the statute of
limitations begins to run when the plaintiff has reason to suspect an injury and
some wrongful cause, unless the plaintiff pleads and proves that a reasonable
investigation at that time would not have revealed a factual basis for that
particular cause of action. In that case, the statute of limitations for that cause of
action will be tolled until such time as a reasonable investigation would have
revealed its factual basis.” (Fox, supra, 35 Cal.4th at p. 803.)
“A plaintiff’s inability to discover a cause of action may occur ‘when it is
particularly difficult for the plaintiff to observe or understand the breach of duty,
or when the injury itself (or its cause) is hidden or beyond what the ordinary
person could be expected to understand.’ ” (NBCUniversal Media, LLC v.
Superior Court (2014) 225 Cal.App.4th 1222, 1232 [171 Cal.Rptr.3d 1].)