Estate of Peebles

OPINION

Plaintiff appeals from an order of dismissal (judgment, Code Civ. Proc., § 581d) entered following an order sustaining a general demurrer to plaintiff's complaint without leave to amend. The demurrer was *Page 165 sustained on the sole ground that the action was barred by the statute of limitations.1

The complaint was filed February 27, 1970, and contained four causes of action. In the first, plaintiff alleged her appointment on or about September 17, 1965, as administratrix-with-the-will-annexed of the estate of Wade Peebles, deceased; prior to his death, Peebles and the defendants orally agreed to and did become partners "in the businesses of purchasing, selling, subdividing, developing and managing properties"; in April and May 1964 deceased contributed $33,500 as his share of the partnership capital and was to receive 50 percent of the profits; "in and after June 1966, said defendants completed their buying, selling, subdividing, developing and managing said properties"; in June 1966 defendants paid $3,000 to plaintiff as administratrix, "in partial payment of their obligation"; before that date, plaintiff had demanded an accounting of defendants but they refused and still refuse to account. The second cause of action was a common count and alleged that "within four years last past" defendants became indebted to plaintiff on an open book account for $30,500 lent to them by deceased. The third cause of action also alleged a common count, namely, an account stated, and sought $30,500. The fourth cause of action purported to set forth a right to declaratory relief, alleging $33,500 was contributed by deceased to the partnership, with a right to receive 50 percent of the profits, and that defendants acknowledged receiving the money but denied any partnership existed or that they had any obligation to repay any part of the $33,500, except the sum of $3,000 already paid.

In the lower court, defendants/respondents argued and the trial court agreed that all causes of action were barred by Code of Civil Procedure section 343 which provides a four-year period of limitation.2 In her briefs, plaintiff/appellant voices no claimed distinctions between the various causes of action as pleaded, and properly so. (Hays v. Temple (1937) 23 Cal.App.2d 690, 695 [73 P.2d 1248].) Appellant contends that no statute of limitations whatsoever applies and, if one does, that the time period so provided had not started to run as no cause of action had accrued. *Page 166

It seems clear that an action seeking an accounting is an action in equity. (Bates v. McTammany (1938) 10 Cal.2d 697, 700 [76 P.2d 513]; Taylor v. Sanford (1962) 203 Cal.App.2d 330, 347 [21 Cal.Rptr. 697].) In an action for an accounting the applicable statute of limitations may be the four-year period provided in Code of Civil Procedure section 343 (Austin v.Harry E. Jones, Inc. (1939) 30 Cal.App.2d 362, 368 [86 P.2d 379]; People v. Taliaferro (1957) 149 Cal.App.2d 822, 825 [309 P.2d 48].)3 On the other hand, if it be considered that the primary purpose of the action here was to recover money under an oral contract, then the two-year provision of Code of Civil Procedure section 339, subdivision 1, may be applicable since "the nature of the right sued upon, not the form of action or the relief demanded, determines the applicability of the statute of limitations." (Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 718 [7 Cal.Rptr. 899, 355 P.2d 643], and see: St. JamesChurch v. Superior Court (1955) 135 Cal.App.2d 352, 359 [287 P.2d 387].) (1) But whether the action is in equity or in law a statute of limitations is applicable; the equitable doctrine of laches becomes pertinent only to shorten such time period, not to extend it. (Meigs v. Pinkham (1910) 159 Cal. 104, 111 [112 P. 883]; Rottman v. Rottman (1921) 55 Cal.App. 624, 631-632 [204 P. 46]; 18 Cal.Jur.2d, Rev., Equity, § 47, pp. 188-189.)