Storey v. Shasta Forests Co.

WARNE, J. pro tem.

*

This is an appeal from a judgment entered in favor of the defendants after their demurrer to the complaint was sustained and plaintiff failed to amend.

The record shows that this is an action for malicious prosecution filed on December 3, 1957, against the defendant, William M. Beaty, and his employer, Shasta Forests Company, a corporation. The complaint alleges, among other things, that on December 5, 1955, defendant Beaty, acting in the course and within the scope of his agency and employment, malici

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ously and without probable cause filed a criminal complaint accusing plaintiff of the offense of grand theft, a felony; that plaintiff was arrested on said charge and held to answer in the Superior Court in and for the County of Tehama, where he was tried and acquitted on May 10, 1956.

Defendants demurred to the complaint on the ground that the action was barred under the provisions of section 340, subdivision 3, of the Code of Civil Procedure. This section provides, in part, that an action “for injury to or for the death of one caused by the wrongful act or neglect of another” is barred within one year after the wrongful act is committed.

Plaintiff contends that an action for malicious prosecution is governed by the two-year limitation provided for in subdivision 1 of section 339 of the Code of Civil Procedure, and, therefore, the action was timely filed. We do not agree with plaintiff.

In

Oppenheimer

v.

Tamblyn,

162 Cal.App.2d 293 [327 P.2d 574], the court stated:

“The period of limitations applicable to an action of this nature [malicious prosecution] is indeed one year. (Code Civ. Proc., § 340, subd. 3;

Simons

v.

Edouarde,

98 Cal.App.2d 826 [221 P.2d 203].)”