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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 SHALABI v. CITY OF FONTANA
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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 SHALABI v. CITY OF FONTANA
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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 SHALABI v. CITY OF FONTANA
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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 SHALABI v. CITY OF FONTANA
Opinion of the Court by Cantil-Sakauye, C. J.

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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 SHALABI v. CITY OF FONTANA
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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Opinion of the Court by Cantil-Sakauye, C. J.

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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 SHALABI v. CITY OF FONTANA
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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 SHALABI v. CITY OF FONTANA
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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 SHALABI v. CITY OF FONTANA
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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 SHALABI v. CITY OF FONTANA
Opinion of the Court by Cantil-Sakauye, C. J.

[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”].

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 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