Tu-Vu Drive-In Corp. v. Davies

BURKE, J.

The trial court sustained a demurrer to plaintiff’s complaint (first amended) without leave to amend, on the ground that the stated causes of action were barred by the one-year statute of limitations found in subdivision 3 of section 340 of the Code of Civil Procedure.

1

Plaintiff appeals from the ensuing judgment of dismissal.

2

As will appear, we have concluded that the cited statute does not apply, and that the judgment should be reversed.

Plaintiff operates a drive-in theatre in San Diego. In an action to which plaintiff was not a party, the defendant herein, an attorney, secured a writ of execution and on October 31, 1960, wrongfully caused it to be levied on plaintiff’s motion picture equipment. Ultimately plaintiff secured release of its property through a favorable judgment on its third party claim. That judgment became final on December 22, 1962.

(Long Construction Co.

v.

Empire Drive-In

Theatres,

Inc.

(1962) 208 Cal.App.2d 726, 739 [25 Cal.Rptr. 509].)

On June 8, 1964, plaintiff filed this action for damages to its business operations and reputation and for the expense of replacing its equipment so that it could reopen its theatre pending outcome of its third party claim, all alleged to have been suffered as a result of the wrongful levy of execution and deprivation of its property. In a second cause of action plaintiff alleges that in causing. the levy defendant acted maliciously and with the intent to destroy plaintiff’s credit and business.

The one-year statute of limitations specified in section

[437]

340, subdivision 3,

3

embraces infringements of personal rights as opposed to property rights