Shalabi v. City of Fontana

IN THE SUPREME COURT OF

CALIFORNIA

LUIS ALEXANDRO SHALABI,

Plaintiff and Appellant,

v.

CITY OF FONTANA et al.,

Defendants and Respondents.

S256665

Fourth Appellate District, Division Two

E069671

San Bernardino County Superior Court

CIVDS1314694

July 12, 2021

Chief Justice Cantil-Sakauye authored the opinion of the

Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,

Groban, and Jenkins concurred.

SHALABI v. CITY OF FONTANA

S256665

Opinion of the Court by Cantil-Sakauye, C. J.

The statute of limitations is a law that sets the maximum

amount of time within which legal proceedings may be initiated.

As established by Code of Civil Procedure section 12,1 the

general rule for computing the time by which a plaintiff must

bring a cause of action is to exclude the first day of the

limitations period and include the last day.

A tolling provision suspends the running of a limitations

period. When a minor is injured, the statute of limitations for

any claim arising from the injury is tolled until the minor

reaches age 18. (§ 352, subd. (a); Fam. Code, § 6500.) We

granted review in this matter to decide whether, in cases in

which the statute of limitations is tolled based on the plaintiff

minor’s age, the day after which the tolling period ends is either

included or excluded in calculating whether an action is timely

filed within the limitations period.

Here, the Court of Appeal held, consistent with section 12,

that a minor’s 18th birthday is excluded in calculating when the

statute of limitations begins to run. The appellate court

acknowledged that this court had reached a different conclusion

more than a century earlier in Ganahl v. Soher (1884)

2 Cal.Unrep. 415 (Ganahl I), an unreported Supreme Court

1

All subsequent undesignated statutory references are to

the Code of Civil Procedure.

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Opinion of the Court by Cantil-Sakauye, C. J.

decision, but it resolved that Ganahl I was not controlling

because that decision did not explicitly address the applicability

of section 12. (Shalabi v. City of Fontana (2019) 35 Cal.App.5th

639, 644 (Shalabi).)

We agree with the Court of Appeal’s conclusion that an

individual’s 18th birthday is excluded when calculating the

applicable limitations period. As articulated in section 12, the

ordinary rule for computation of time excludes the first day and

includes the last. We have long held that significant public

order and security considerations compel a definite and certain

method of computing time. Before a given case will be deemed

to fall outside the general rule, there must be a clearly expressed

intention that a different method of computation was intended

and provided for. No such intent, compelling reason, or direction

is evident from the relevant statutory language or history.

We also agree that our decision in Ganahl I, supra,

2 Cal.Unrep. 415 is not binding, but not for the reason expressed

by the Court of Appeal. This court granted hearing in bank in

Ganahl I and issued a subsequent superseding decision, thereby

vacating Ganahl I. And so, although defendants in this case

now urge us to uphold and not “overrule” the initial decision in

Ganahl I, there is in fact nothing to uphold or overrule, because

the former decision never possessed precedential authority. Nor

does the reasoning set out in that vacated decision have

persuasive force. Accordingly, we affirm the judgment of the

Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2013, plaintiff Luis Alexandro Shalabi

filed a lawsuit against the City of Fontana and several of its

police officers (collectively, defendants) asserting a deprivation

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Opinion of the Court by Cantil-Sakauye, C. J.

of civil rights under title 42 United States Code section 1983

(section 1983 claim). Plaintiff alleged that on May 14, 2011, one

of the officers wrongfully shot and killed plaintiff’s father.

Plaintiff was a minor at the time of his father’s death.

The parties agreed to a bifurcated bench trial (§ 1048,

subd. (b)) concerning whether plaintiff’s section 1983 claim was

barred by the relevant two-year statute of limitations. The

parties stipulated to the following facts: (1) plaintiff’s date of

birth is December 3, 1993; (2) plaintiff reached the age of

majority on December 3, 2011; and (3) plaintiff filed his original

complaint on December 3, 2013.

The trial court ruled that plaintiff’s claim was time-barred

because he filed suit one day outside the two-year limitations

period. It found that plaintiff’s 18th birthday must be included

in calculating the limitations period, and, accordingly, plaintiff’s

lawsuit had to be filed by December 2, 2013. The court relied on

the unreported decision in Ganahl I, supra, 2 Cal.Unrep. 415,2

which, in its analysis, included the date on which the plaintiff

2

Approximately 1,800 opinions rendered over the course of

this court’s first six decades were, through inadvertence or

otherwise, not published in the California Official Reports. (See

generally, 1–7 Cal.Unrep. (1913); 1 Cal.Unrep. at p. v

[describing the history and highlighting “the extent to which the

unreported decisions have been cited by courts and legal

writers,” and asserting that “the intrinsic value revealed in the

opinions themselves . . . have placed the question of their

importance to the practitioner beyond all controversy”].) Most

of these Supreme Court cases set out in the seven volumes of

California Unreported Cases remain precedential unless and

until overruled. (In re Harris (1993) 5 Cal.4th 813, 849, fn. 18;

In re Little’s Estate (1937) 23 Cal.App.2d 40, 43 [Supreme Court

cases that have not been ordered officially reported are

nonetheless binding upon lower courts].)

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Opinion of the Court by Cantil-Sakauye, C. J.

reached the age of majority in calculating when the applicable

statute of limitations period commenced after tolling during

minority ended.

Plaintiff appealed, and the Court of Appeal reversed.

(Shalabi, supra, 35 Cal.App.5th 639.) It held that plaintiff’s

18th birthday should have been excluded pursuant to section 12

in calculating when the statute of limitations period started

running after tolling during minority ended. (Shalabi, at

pp. 643–644.) It also determined that the 1884 opinion in

Ganahl I was not controlling in light of that decision’s failure to

address section 12. (Shalabi, at p. 644.) “Because [Ganahl I]

did not cite section 12 or explain how the court could create an

exception to a law created by the Legislature,” the Court of

Appeal reasoned, “we conclude [Ganahl I] is not binding

authority on the issue of how to calculate time under section 12.”

(Ibid.) Counting two years from December 4, 2011, the day after

plaintiff’s birthday, the appellate court held that plaintiff’s

complaint was timely filed. (Id. at p. 643.) It observed that “[i]f

the Legislature prefers to include a plaintiff’s birthday when

calculating time in cases in which the statute of limitations has

been tolled awaiting the plaintiff’s 18th birthday, then the

Legislature — not this court — must create that exception.” (Id.

at p. 644.)

We granted review.

II. DISCUSSION

A section 1983 cause of action is subject to the forum

state’s statute of limitations for personal injury torts. (Wallace

v. Kato (2007) 549 U.S. 384, 387 (Wallace).) California’s statute

of limitations governing a personal injury claim is two years.

(§ 335.1 [“Within two years: An action . . . for the death of . . . an

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individual caused by the wrongful act or neglect of another”].)

Federal law governs when a cause of action accrues and when

the statute of limitations begins to run on a federal civil rights

cause of action. (Cabrera v. City of Huntington Park (9th Cir.

1998) 159 F.3d 374, 379 (Cabrera).) Plaintiff’s federal civil

rights cause of action based on his father’s death accrued at the

time of death. (Estate of B.I.C. v. Gillen (10th Cir. 2013) 710

F.3d 1168, 1176.)

A tolling provision suspends the running of a limitations

period. We have analogized tolling to “the stopping and

restarting of a clock.” (People v. Leiva (2013) 56 Cal.4th 498,

507.) State law controls the tolling of the statute of limitations

for a federal civil rights claim. (Wallace, supra, 549 U.S. at

p. 394.) In California, when a minor is injured, the statute of

limitations is tolled during minority and until the minor turns

18. (§ 352, subd. (a) [“If a person entitled to bring an action

. . . is, at the time the cause of action accrued . . . under the age

of majority . . . , the time of the disability is not part of the time

limited for the commencement of the action”]; Fam. Code, § 6500

[“A minor is an individual who is under 18 years of age. The

period of minority is calculated from the first minute of the day

on which the individual is born to the same minute of the

corresponding day completing the period of minority”]; In re

Harris, supra, 5 Cal.4th at p. 845 [“the period of minority

terminates on the first minute of one’s 18th birthday”].)

Thus, the two-year statute of limitations governing

plaintiff’s federal civil rights cause of action, triggered by the

death of his father, was tolled while plaintiff was a minor. We

now turn to the question of whether plaintiff’s 18th birthday —

the day after the tolling period ended — should be included or

excluded in calculating plaintiff’s final date by which to file suit.

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Opinion of the Court by Cantil-Sakauye, C. J.

Section 12 sets forth “the ordinary rule of computation of

time.” (Ley v. Dominguez (1931) 212 Cal. 587, 594 (Ley).) This

section provides in full: “The time in which any act provided by

law is to be done is computed by excluding the first day, and

including the last, unless the last day is a holiday, and then it is

also excluded.” (§ 12.) This general statutory rule was first

codified in 1850 as section 307 of the Original Practice Act3 and

has remained unchanged since its enactment in 1872. (§ 12; see

Cabrera, supra, 159 F.3d at p. 379.)

Prior to the enactment of the general rule, the cases were

not in agreement regarding whether the first day was included

or excluded in computing a time period. (People v. Clayton

(1993) 18 Cal.App.4th 440, 443 (Clayton).) “In early common

law cases, where the computation was to be made from the doing

of an act, the usual practice was to include the day when that

act was done. [Citations.] In later cases, however, this rule of

construction was gradually repudiated and the rule excluding

the first day of the period was adopted. [Citation.] For more

than two centuries, however, the cases were in conflict and there

was no fixed rule.” (Ibid., fn. omitted.) Thereafter, Lord

Mansfield set forth a rule that was dependent upon the context

and subject matter of each case. (Ibid.) The general statutory

rule was subsequently enacted to resolve and foreclose any

otherwise inherent uncertainty in computing a time period

based on the circumstances of each case. (Id. at p. 444.)

3

Section 307 of the Original Practice Act similarly

provided: “The time within which an act is done, as herein

provided, shall be computed by excluding the first day and

including the last; if the last day be Sunday, it shall be

excluded.” (Stats. 1850, ch. 142, § 307, p. 455.)

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SHALABI v. CITY OF FONTANA

Opinion of the Court by Cantil-Sakauye, C. J.

A uniform rule governing the method of computing time

promotes clarity and stability. (See Ley, supra, 212 Cal. at

pp. 594–595.) In Ley, we explained that “[t]he gravest

considerations of public order and security require that the

method of computing time be definite and certain.” (Id. at

p. 594.) In keeping with these important policy concerns, we

held that “[b]efore a given case will be deemed to come under an

exception to the general rule the intention must be clearly

expressed that a different method of computation was provided

for.” (Id. at p. 595; see also In re Rodriguez (1964) 60 Cal.2d 822,

825–826.) Put differently: “Consistent with the need for

certainty in the method of computing time, a case will not be

found to come under an exception to the general rule unless

there is a clear expression of provision for a different method of

computation.” (DeLeon v. Bay Area Rapid Transit Dist. (1983)

33 Cal.3d 456, 460–461.)

In Ley, we rejected the argument that section 12 did not

apply in calculating when a 30-day publication period specified

in a city charter began to run. (Ley, supra, 212 Cal. at p. 594.)

We elucidated: “The express language . . . of the charter is that

no ordinance shall go into effect ‘until’ the expiration of thirty

days from its publication. Properly interpreted, this would seem

to mean thirty days after the publication, which necessarily

excludes the day of publication. [¶] We can see no reason for

applying to the above charter provisions a method of reckoning

different from and an exception to the ordinary method of

computation.” (Ibid.)

Subsequent to our decision in Ley, appellate courts have

held that “[a]bsent a compelling reason for a departure, [section

12] governs the calculation of all statutorily prescribed time

periods.” (In re Anthony B. (2002) 104 Cal.App.4th 677, 682; see

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ibid. [“Our Supreme Court has encouraged the use of uniform

rules so that the method of computing time not be a source of

doubt or confusion”]; see also Latinos Unidos de Napa v. City of

Napa (2011) 196 Cal.App.4th 1154, 1161 [“Defendants identify

no clear expression of intent, or compelling reason, to except the

computation of the [statutory limitations period] from the

general rule of . . . section 12”]; Clayton, supra, 18 Cal.App.4th

at p. 445, fn. omitted [“Given the unambiguous language of [the

statute of limitations], the uniform method adopted by the

Legislature for computing days within which an act provided by

law is to be done, and our Supreme Court’s encouragement that

the general rule be used absent a clear intent to the contrary,

we hold that the 10-day period . . . is to be computed by

excluding the [first] day”]; Mox, Inc. v. Leventhal (1928)

89 Cal.App. 253, 256 (Mox) [section 12 “is a general rule for

computing time, applicable to any act which is required by law,

except where a statute specifically otherwise provides”].) In

Wixted v. Fletcher (1961) 192 Cal.App.2d 706 (Wixted), the Court

of Appeal aptly summarized the reason for the rule as follows:

“[N]ot only do ‘considerations of public order and security

require that the method of computing time be definite and

certain,’ but some measure of uniformity in the law is achieved

by adherence to the principles declared in [Ley]. Thus, for years

the rule of the first day’s exclusion has been applied in a variety

of procedural situations . . . . There are already enough legal

subtleties without adding the further refinement that one rule

of time computation must be applied to certain statutes of

limitation and still another to procedural situations.” (Id. at

p. 709.)

Defendants argue that an exception to the general first

day exclusion rule applies when, as here, the plaintiff has the

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Opinion of the Court by Cantil-Sakauye, C. J.

whole of the first day to sue. They maintain that the law

recognizes no fractions of a day, and the purpose of section 12’s

exclusion of the first day is to give parties the full measure of

days to satisfy statutory deadlines. Defendants assert that

when the cause of action accrues on a partially spent day, then

that day is excluded under section 12; but, they maintain, when

a cause of action accrues on the first minute of a day, that day

should be included when calculating the running of the statute

of limitations.

We are unpersuaded. Although defendants claim that

section 12 was enacted to ensure that fractions of a day are not

to be counted in calculating the applicable limitations period, no

such purpose is apparent from the statutory language or

legislative history. Instead, as our prior decisions demonstrate,

the general rule for computing time was adopted to end the

uncertainty inherent in deciding whether the first day is to be

included or excluded based on the particular context and subject

matter of each case. (See, e.g., Dingley v. McDonald (1899)

124 Cal. 90, 95 [conflicting decisions concerning whether the

first day should be included in the computation of time was “set

at rest by section 12 . . . , which requires the exclusion of the

first day”]; see also Clayton, supra, 18 Cal.App.4th at p. 443

[observing that “[f]or more than two centuries [prior to the

enactment of the general rule for computing time], . . . the cases

were in conflict and there was no fixed rule” regarding whether

to exclude or include the first day].)

The Association of Southern California Defense Counsel,

amicus curiae on behalf of defendants, asserts that interpreting

section 12 to exclude a plaintiff’s 18th birthday would clash with

the statutory definition of a year as being 365 days (Gov. Code,

§ 6803), because a plaintiff would have 366 days to file suit, and

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Opinion of the Court by Cantil-Sakauye, C. J.

thereby “thrust the statutes into inexorable conflict.” Again, we

are unconvinced. It is well settled that, generally speaking, if

the 365th day falls on a Saturday, Sunday, or a holiday, that day

is also excluded, thereby giving a plaintiff more than a “year” in

which bring an action. (§§ 12, 12a, subd. (a); see, e.g., Alford v.

Industrial Acc. Commission (1946) 28 Cal.2d 198, 200; Mox,

supra, 89 Cal.App. at p. 257.) We do not discern any serious

difficulty for the lower courts in calculating such a limitations

period.

Amicus curiae also asserts that section 12’s exclusion of

the first day is “inextricably linked to the law’s refusal to

recognize fractional days” and that there is no reason to apply

the general rule when a person attains the age of majority

because an individual always turns 18 on the first minute of his

or her birthday. However, the statute instructs that “[t]he time

in which any act provided by law is to be done is computed by

excluding the first day . . . .” (§ 12, italics added.) It does not

limit the first day exclusion rule to partially spent days. If the

Legislature wished to exclude only fractional days, it could have

easily so stated. In light of the plain language of the statute,

which has remained unchanged since its enactment in 1872 and

does not limit its application to a first “partial” day, we cannot

conclude that the first day to sue should be exempted from the

general rule, and therefore counted, when it is a “whole” day.

Moreover, the legislative history indicates that the general rule

for computing time was enacted to achieve uniformity and

certainty. In our view, the significant goals of ensuring order

and security weigh in favor of applying the general rule

governing computing time to calculating the applicable statute

of limitations period after tolling based on minority ends.

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SHALABI v. CITY OF FONTANA

Opinion of the Court by Cantil-Sakauye, C. J.

We continue to adhere to our holding in Ley, that an

exception to the ordinary rule for computation of time must be

clearly expressed in the limitations statute. (Ley, supra,

212 Cal. at p. 595.) Turning to the statutory provisions at issue

in this case, we perceive no such expression of an intention to

depart from the general rule for computation of time. The

statute of limitations regarding a wrongful death claim simply

requires that the action be brought “[w]ithin two years.”

(§ 335.1.) It is well settled that when the limitations provision

requires that an action be brought “within” a specified time, the

first day of that period is excluded, as required by section 12.

(See, e.g., Scoville v. Anderson (1901) 131 Cal. 590, 594

[excluding first day in calculating whether an action was taken

“within a month”]; Wixted, supra, 192 Cal.App.2d at pp. 707–

709.) Similarly, the language of the age-based tolling statute

provides no indication that the Legislature intended to include

the first day after the tolling period ends in calculating the

statute of limitations deadline to file suit. (§ 352, subd. (a).)

Section 352, subdivision (a) provides that the time during which

a plaintiff is under the age of majority “is not part of the time

limited for the commencement of the action.” Defendants do not

identify a clear expression of intent concerning the applicable

limitations period or tolling provision sufficient to justify

excepting the computation of that time from the general rule of

section 12.

Indeed, the legislative history of section 352 most

reasonably supports an argument that section 12, properly

construed, excludes the day a minor reaches the age of majority.

In enacting this tolling statute in 1872, the Legislature was

focused on preserving the rights of children during minority.

(Williams v. Los Angeles Metropolitan Transit Authority (1968)

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Opinion of the Court by Cantil-Sakauye, C. J.

68 Cal.2d 599, 602 [explaining that § 352, subd. (a) “effectuate[s]

a deep and long recognized principle of the common law and of

this state: children are to be protected during their minority

from the destruction of their rights by the running of the statute

of limitations”]; Barker v. Garza (2013) 218 Cal.App.4th 1449,

1462 [recognizing “the strong public policy in protecting minors

from the sometimes harsh application of statutes of

limitations”]; see also Inclusion or Exclusion of First and Last

Day for Purposes of Statute of Limitations (1952) 20 A.L.R.2d

1249, § 2 [“The general policy of the law to protect rights and

prevent forfeitures has also been found to be applicable to the

computation of time under statutes of limitation”].) In West

Shield Investigations & Security Consultants v. Superior Court

(2000) 82 Cal.App.4th 935, the Court of Appeal succinctly

described the rationale for the age-based tolling provision as

follows: “ ‘Because a minor does not have the understanding or

experience of an adult, and because a minor may not bring an

action except through a guardian . . . special safeguards are

required to protect the minor’s right of action.’ [Citation.]

Therefore, statutes of limitations are tolled to protect the

minor’s rights from being destroyed during the period of

disability. [Citations.] The tolling provision is not easily

overcome.” (Id. at p. 947.)

Consistent with the principles effectuated by section 352,

subdivision (a), by allowing a minor to exclude the first day on

which he or she could personally sue (i.e., without a guardian) —

the individual’s 18th birthday — from the applicable limitations

period, the law better serves to protect a minor’s rights. Not

only does such a construction ensure that a plaintiff minor

receives the same first day exclusion benefit as a plaintiff adult

whose cause of action has accrued, but it also avoids creating an

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Opinion of the Court by Cantil-Sakauye, C. J.

exception to the generally applicable rule that could become a

source of confusion and error. Defendants do not identify any

similarly significant objectives that would be achieved by

allowing a different method of computation under the

circumstances.

Citing our unreported decision in Ganahl I, defendants

maintain that this court has already concluded that an

exception to the general rule for computation of time applies

after the tolling period based on minority ends and that the

Court of Appeal erred by not following Ganahl I. Defendants

recount that in Ganahl I, Henry Gordon Ganahl (Gordon)

claimed title to land that had been owned by Henry Ganahl, who

died intestate. (Ganahl I, supra, 2 Cal.Unrep. at pp. 415–416.)

The cited decision held that Gordon’s lawsuit was barred by the

statute of limitations. (Id. at p. 416.) It observed that Gordon

became of age “the first minute of the eleventh day of April,

1876,” and therefore “he was entitled to commence an action for

the recovery of whatever interest he had in the land within the

period of five years thereafter, but not after the expiration of

that period.” (Ibid.) The opinion reasoned: “In computing the

period of five years we must include the eleventh day of April,

1876, because, as the plaintiff in question attained his majority

the first minute of that day, he had the whole of the day in which

to sue; and computing that as the first day of the five years, the

whole period of five years expired with the tenth day of April,

1881, and the action not having been commenced until the

eleventh of April, 1881, was barred by the provisions of the

statute.” (Ibid.) Although section 12 was enacted more than a

decade before the 1884 Ganahl I decision, the opinion in Ganahl

I does not consider the role of, or even mention, this general rule

governing computation of time.

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Opinion of the Court by Cantil-Sakauye, C. J.

Putting aside the question of whether the Ganahl I

decision stands for the proposition that, notwithstanding

section 12, the day after minority tolling ends is included in

calculating the applicable limitations period, we conclude that

Ganahl I has no precedential authority. As defendants

acknowledge, we granted the plaintiffs’ “Petition for Hearing in

Bank” in that case and subsequently filed a superseding opinion,

Ganahl v. Soher (1885) 68 Cal. 95 (Ganahl II). In Ganahl II, we

again upheld the trial court’s ruling against Gordon — but this

time on the basis of a three-year, rather that the five-year,

statute of limitations. (Id. at p. 96 [“At the time of sale the

plaintiff, Henry Gordon Ganahl, was a minor, but he attained

his majority more than three years before the commencement of

this action”].) Unlike the initial decision in Ganahl I, our

subsequent opinion in Ganahl II did not mention, let alone

address, whether Gordon’s 21st birthday was included in

calculating the applicable limitations period. (Compare Ganahl

I, supra, 2 Cal.Unrep. at p. 416 with Ganahl II, supra, 68 Cal.

at p. 96.)

The constitutional provisions applicable at the time of the

Ganahl proceedings make clear that our decision in Ganahl I

was vacated as a matter of law and has never had any

precedential authority. Article VI, section 2 of the California

Constitution of 1879 established the court’s structural practice

(abandoned five decades later) of operating in two three-justice

“departments,” each with “the power to hear and determine

causes.” This section provided that either the Chief Justice or

any four justices may, “before or after judgment by a

department, order a case to be heard in bank.” (Ibid.)

Significantly, this section also specified that an order for a

hearing in bank “shall have the effect to vacate and set aside the

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[prior] judgment.” (Ibid., italics added.) Thus, Ganahl I is

not — and never has been — a binding decision of this court.

Indeed, our case law, both well before and at the time this

court ordered hearing in bank following Ganahl I, reflects this

fundamental rule of appellate procedure. In Argenti v. City of

San Francisco (1860) 16 Cal. 255, Chief Justice Field explained,

in the course of denying rehearing in that matter: “[W]hen a

rehearing is granted, the opinion previously delivered falls,

unless reaffirmed after the reargument. Until such

reaffirmance, the opinion never acquires the force of an

adjudication, and is entitled to no more consideration than the

briefs of counsel. The opinion subsequent to the reargument

constitutes the exposition of the law applicable to the facts of the

case, and the only one to which the attention of the Court can be

directed.” (Id. at p. 276.) Likewise, in Gray v. Cotton (1913)

166 Cal. 130, 138, we held that it was error for the appellants to

rely on a department decision “which never became final, but

was vacated by an order directing a hearing in Bank,” and “[t]he

court in Bank subsequently reached a different conclusion from

that announced in department” (id. at pp. 138–139). And in

Miller & Lux v. James (1919) 180 Cal. 38, 48, we explained that

an initial decision rendered on appeal was vacated by the order

granting a rehearing. We noted that even if the order granting

such rehearing limited the argument to a specific issue, “the

order, nevertheless, vacated the previous opinion and judgment

and set the whole matter at large.” (Ibid.)4

4

See also In re Jessup (1889) 81 Cal. 408, 462 [when the

court grants rehearing, this “put[s] the case in the same position

as if it had never been decided or submitted”]; Poppe v. Athern

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Opinion of the Court by Cantil-Sakauye, C. J.

As summarized by Witkin: “An order granting a rehearing

vacates the decision and any opinion filed in the case and sets

the cause at large in the Supreme Court. (Cal. Rules of Court,

rule 8.536(e).) The old opinion, though previously printed in the

advance sheets and California Reporter or Pacific Reporter, is

wholly superseded, and never appears in the final official

volumes of California Reports or California Appellate Reports.

(Miller & Lux v. James[, supra,] 180 Cal. [at p. 48], 179 P. 174,

175.)” (13 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 948,

p. 1004; Morgan v. Stubblefield (1972) 6 Cal.3d 606, 624 [“The

granting of a rehearing had the effect of vacating the decision

and eliminating the rule of law upon which [the party] relied”];

Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 634 [“An

opinion is superseded by an order granting rehearing and the

rule of law set forth therein is thereby eliminated”].)

Nevertheless, various past appellate decisions (including

by this court) in addition to the one we review here have failed

to apprehend this rule’s application with respect to Ganahl I and

have purported to give precedential effect to that decision.5 We

(1872) 42 Cal. 606, 610 [reporter’s note: “After a rehearing the

first opinion is understood to be no longer the opinion of the

Court, unless it is adopted in the subsequent opinion”];

Carpentier v. Small (1868) 35 Cal. 346, 364 [observing that

“[t]he former judgment of this case, so far as it relates to the

defendants . . . , to whom a rehearing was granted, is vacated”].

5

See, in chronological order, Ex Parte Wood (1907)

5 Cal.App. 471, 473 [citing the Ganahl I decision and purporting

to follow it regarding computation of age of majority], abrogated

by In re Harris, supra, 5 Cal.4th at p. 850; Bynum v. Moore

(Okla. 1923) 223 P. 687, 690–691 [citing the Ganahl I decision

regarding computation of age of majority]; People v. Dudley

16

SHALABI v. CITY OF FONTANA

Opinion of the Court by Cantil-Sakauye, C. J.

have no doubt that this lapse may be attributed, in part, to the

fact that services such as Westlaw and LexisNexis’s Shepard’s

Citations Service do not show the relevant subsequent or prior

history with regard to either the initial decision in Ganahl I or

the superseding decision in Ganahl II. Nevertheless, it is plain

that Ganahl I, having been reheard by this court before it

became final and superseded by Ganahl II, was vacated and

never had precedential effect — as we now recognize, better late

than never. To the extent the published appellate decisions

cited ante, footnote 5, contain language inconsistent with our

conclusion that Ganahl I is not precedential, we disapprove of

them.

Nor, for the reasons expressed above, do we find the

reasoning set out in Ganahl I to be independently persuasive.

We reject the approach to calculating commencement of the

statute of limitations articulated in that decision and instead

endorse and apply the rule set out in section 12 — that is, we

exclude the first day of the limitations period and include the

last day.

Defendants urge us to follow the decisions of other

jurisdictions that have included the first date after age-based

tolling ends when calculating the limitations period, relying

(1942) 53 Cal.App.2d 181, 183–185 [same], abrogated by In re

Harris, at p. 850; Justus v. Atchison (1977) 19 Cal.3d 564, 576

[same]; Johnson v. Superior Court (1989) 208 Cal.App.3d 1093

[same]; In re Harris, at pp. 845–850 & fn. 18 [discussing Ganahl

I decision regarding computation of age of majority and

affirming that merely because it was not officially published

does not undermine its precedential authority]; Cabrera, supra,

159 F.3d at p. 379 [“Despite its age, the Ganahl [I] holding is

still good law”].

17

SHALABI v. CITY OF FONTANA

Opinion of the Court by Cantil-Sakauye, C. J.

primarily on Phelan v. Douglass (N.Y. 1855) 11 How.Pr. 193.

There, the New York Court of Appeals held that the ordinary

rule of computing time, similar to California’s section 12, did not

apply when calculating the limitations period after tolling based

on minority ends. (Phelan, at p. 196.) It explained that the

reason for the rule excluding the first day was that “the law will

not take notice of fractions of a day, . . . [b]ut the reason of the

rule ceases whenever the party affected has the whole and entire

day.” (Ibid.) The Phelan court concluded that “[w]henever the

whole day, and every moment of it, can be counted, then it should

be; whenever, if counted, the party would, in fact, have but a

fractional part of it, then it should not be counted.” (Ibid.) The

Texas Supreme Court similarly held that the general rule

excluding first day did not apply to limitations period that ran

after a minor attained his or her majority because the minor

“could have instituted his suit at any moment of that day.” (Ross

v. Morrow (Tex. 1892) 19 S.W. 1090, 1091; see also Pate v.

Thompson (Tex.Ct.App. 1944) 179 S.W.2d 355, 356.)

As defendants acknowledge, however, other states that

have more recently addressed the issue have reached a different

conclusion. For example, in Nelson v. Sandkamp (Minn. 1948)

34 N.W.2d 640 (Nelson), the Minnesota Supreme Court held

that the ordinary rule for computing time, which excludes the

first day and includes the last, applies in calculating the

applicable limitations period after age-based tolling ends.

(Id. at p. 643.) It specifically rejected the defendant’s argument

that because “the reason for the application of the rule at

common law is that the law takes no notice of fractions of days,”

it should follow “that the rule . . . should not be applied here, in

that plaintiff had the whole, and not a mere fraction, of the day”

to sue. (Ibid.) The court determined that “ ‘[i]nasmuch as the

18

SHALABI v. CITY OF FONTANA

Opinion of the Court by Cantil-Sakauye, C. J.

certainty of a rule is of more importance than the reason of it,

we think the legislature intended by [the statute setting forth

the general rule] to put an end to all this confusion and

uncertainty by adopting a uniform rule for the computation of

time alike applicable to matters of mere practice and to the

construction of statutes.’ ” (Ibid.) The Alaska Supreme Court

has similarly held that the ordinary method for computing time

periods applies after age-based tolling ends, reasoning that

“attainment of the age of majority is analogous to other events

that trigger running of time periods; the limitation period

excludes the day of the event (attainment of majority), and

includes the last day in the period . . . .” (Fields v. Fairbanks

North Star Borough (Alaska 1991) 818 P.2d 658, 661; see also

Mason v. Board of Educ. of Baltimore County (Md.Ct.App. 2003)

826 A.2d 433, 438 [court applied common law “coming of age”

rule, in which a minor becomes an adult one day before the

minor’s 18th birthday; nevertheless, the date of removal of the

disability (the day before the minor’s 18th birthday) was

excluded from the statute of limitations period under the

general rule for computation of time].)

We are in accord with the high courts of Minnesota and

Alaska. More than a century ago, the Legislature enacted

section 12 to exclude the first day in calculating the applicable

limitations period. A general rule governing the computation of

time serves to promote order and certainty. Even assuming, as

defendants suggest, that section 12’s first day exclusion rule was

originally meant only to exclude partial days, we agree with the

Minnesota Supreme Court that “certainty and uniformity in the

application of the rule for the computation of time is of more

importance than the reason for its application at common law.”

(Nelson, supra, 34 N.W.2d at p. 643.) And, as noted above,

19

SHALABI v. CITY OF FONTANA

Opinion of the Court by Cantil-Sakauye, C. J.

applying section 12 to exclude a plaintiff’s birthday in

calculating a limitations period after age-based tolling ends

under section 352, subdivision (a) serves to protect the rights of

minors. By contrast, allowing an exception to the general rule

when a plaintiff reaches the age of majority would punish the

minor plaintiff whom section 352 is meant to protect.

Therefore, in cases in which the statute of limitations is

tolled based on a plaintiff minor’s age, as set forth in section 12,

the day after tolling ends is excluded in calculating whether an

action is timely filed.

We now apply the holding to the facts of this case. Under

section 352, subdivision (a), the statute of limitations was tolled

during the time when plaintiff was a minor. His 18th

birthday — December 3, 2011 — was the triggering event

because that was the first day he was no longer a minor.

Excluding this date and including the last date two years later,

plaintiff was required to file suit no later than December 3, 2013.

(§ 335.1.) He did so. His lawsuit was therefore timely filed.

III. DISPOSITION

We affirm the judgment of the Court of Appeal.

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

20

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Shalabi v. City of Fontana

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 35 Cal.App.5th 639

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S256665

Date Filed: July 12, 2021

__________________________________________________________

Court: Superior

County: San Bernardino

Judge: Wilfred J. Schneider, Jr.

__________________________________________________________

Counsel:

Ortiz Law Group, Jesse S. Ortiz, Nolan Berggren and Andres Salas for

Plaintiff and Appellant.

Lynberg & Watkins, S. Frank Harrell, Pancy Lin, Ruben Escobedo III

and Jesse K. Cox for Defendants and Respondents.

Horvitz & Levy, Steven S. Fleischman, Scott P. Dixler and Sarah E.

Hamill for Association of Southern California Defense Counsel as

Amicus Curiae on behalf of Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Jesse Ortiz

Ortiz Law Group, APC

1510 J Street, Suite 100

Sacramento, CA 95814

(916) 443-9500

S. Frank Harrell

Lynberg & Watkins, APC

1100 Town & Country Road, Suite 1450

Orange, CA 92868

(714) 937-1010

Scott P. Dixler

Horvitz & Levy LLP

3601 West Olive Avenue, 8th Floor

Burbank, CA 91505

(818) 995-0800