Williams v. International Longshoremen's & Warehousemen's Union, Local 10

California Court of Appeal Jul 17, 1959 No. Civ. 18391Published

Before: O'Donnell

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Holding. The court affirmed a judgment of dismissal, holding that a plaintiff cannot avoid a statute of limitations defense by omitting from an amended complaint facts that were present in a verified original complaint, and that the defendant's demurrer sufficiently raised the issue of the claim being stale.

Issues

Whether a plaintiff may cure a statute of limitations defect by omitting the date of accrual in an amended complaint.
Whether a demurrer based on laches sufficiently raises the defense of the statute of limitations when the claim is clearly stale.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The important fact is that defendant is objecting to plaintiff’s claim because it is stale. In what language he expresses that objection is unimportant under the circumstances here present.”

O’DONNELL, J. pro tem.

This is an appeal from a judgment of dismissal following the sustaining of a demurrer to plaintiff’s first amended complaint without leave to amend.

In his original complaint, which was verified, plaintiff alleged that he had been a member in good standing of defendant union; that on June 15, 1943, he sustained an injury which temporarily disabled him, and as a result he was unable to pay his union dues; that by reason thereof his membership in the union was suspended. Plaintiff further alleges that within six months after the date of his injury he offered to pay all delinquent dues but that defendant wrongfully refused to accept them and further wrongfully refused and continues to refuse to reinstate plaintiff as a member of the union. Plaintiff prayed for judgment directing defendant to reinstate plaintiff’s union membership and also for damages for wages lost during the period of suspension.

Defendant demurred to the original complaint on a number of grounds, among, them being the grounds that the action .was barred by the statute of limitations and by laches. De

[86]

fendant’s demurrer was sustained with leave to amend. The order sustaining the demurrer did not state on. which of the grounds of demurrer the order was based.) Plaintiff’s first amended complaint contains substantially the same allegations as his original complaint with the following two exceptions: (1) the amended complaint omits reference to the fact that plaintiff made application for, and was refused; reinstatement in the year 1943, merely reciting that plaintiff was refused reinstatement “over a period of years”; and (2) the amended complaint omits the allegations of the original complaint relating to loss of wages. >

Defendant demurred to the amended epmplaint on the ground that it does not state facts sufficient to constitute a cause of action and in its points and authorities in support of the demurrer defendant asserts that plaintiff’s cause of action is barred by laches. The defense of laches is properly raised by general demurrer.

(Zakaessian

Zakaessian,

Williams v. International Longshoremen's & Warehousemen's Union, Local 10

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