Hopkins v. Hopkins

Plaintiff instituted this action on September 19, 1950, by filing a complaint in two counts. The first alleges that on October 18, 1926, plaintiff and defendant, being then husband and wife, entered into a written property settlement agreement under the terms of which defendant agreed to pay plaintiff a sum of $120 per month for so long as she lived or until she remarried, and $30 per month for the support of the three minor children of the parties; that plaintiff has not remarried; that on May 9, 1927, the marriage between the parties was dissolved by a decree of divorce of the District Court of the State of Colo

In answer to the first count, in addition to denying any indebtedness to plaintiff, defendant alleges as follows“that no payments have been made by plaintiff because of or under the terms of said contract in writing since on or about September 1, 1943, although, according to the terms of said written contract, such monthly payments as were agreed to have been paid were due and payable on the first day of each and every month thereafter. . . . This defendant further specifically alleges that any right to recover any sum or sums of money whatsoever have been and are fully and completely barred by the laches of plaintiff and the statute of limitations, and more specifically by sections 336 and 337 of the Code of Civil Procedure. ’ ’ The foregoing is incorporated by reference in answer to the second count, as to which it is further alleged: “This defendant more specifically alleges that no sum or sums are now due, payable or collectible, and that any right to recover any sum or sums have been long since abandoned and waived by the conduct and laches of plaintiff, and are completely barred by the statute of limitations, and more specifically by sections 336 and 337 of the Code of Civil Procedure.”

Although no demurrer was interposed to the answer, at the opening of the trial counsel for plaintiff moved to strike therefrom the pleas of laches and the statute of limitations upon the grounds (1) that laches does not constitute a defense to an action at law, and (2) that the plea of the statute of limitations was defective in that, while setting forth the code sections, it failed to specify the particular subdivisions thereof which were relied upon. Counsel for defendant thereupon requested leave to amend his answer as to indicate that subdivision 1 of each of the sections mentioned was intended. Plaintiff’s motion to strike the plea of laches was granted

Appellant does not complain of the trial court’s ruling striking from his answer the plea of laches, and it was clearly correct as such a plea does not lie in an action at law (Brownrigg v. DeFrees, 196 Cal. 534 , 539 [ 238 P. 714 ]; Smith v. City of Los Angeles, 66 Cal.App.2d 562 , 586 [ 153 P.2d 69 ]). Likewise, no error may be predicated upon the refusal of the trial court to permit an amendment to the answer insofar as it undertook to plead the statute of limitations to the first count of the complaint. Inasmuch as this cause of action sought to recover only the instalments which accrued upon the decree sued upon within five years immediately preceding the commencement of the action, no portion thereof was barred by the statute. A more serious question, however, is presented by appellant’s contention that the trial court erred in striking the plea of the statute of limitations to the second count, and that its refusal to permit an amendment to his answer with respect thereto constituted an abuse of discretion.

At the outset it may be noted that prior to the adoption of section 458 of the Code of Civil Procedure it was held that the defense of the statute of limitations might not be pleaded by a mere reference to the particular statute relied upon but that facts had to be alleged from which it was made to appear that the cause of action sued upon was barred (Schroeder v. Johns, 27 Cal. 274 , 279). Since the adoption of section 458 it has been held that in pleading the statute in the manner therein authorized it is necessary to specify not only the applicable section but, if it is divided into subdivisions, the particular subdivision or subdivisions thereof which are relied upon (Wolters v. Thomas, 3 C.U. 843 [ 32 P. 565 ]; Overton v. White, 18 Cal.App.2d 567 , 574 [ 65 P.2d 99 ]; Hart v. Slayman, 30 Cal.App.2d 556 , 558 [ 86 P.2d 861 ]; Davenport v. Stratton, 24 Cal.2d 232 , 246 [ 149 P.2d 4 ]. Compare, however, St. Paul Title & Trust Co. v. Stensgaard, 162 Cal. 178 , 180 [ 121 P. 731 , 39 L.R.A. N.S. 741 ]; Tipps v. Landers, 182 Cal. 771 , 776 [ 190 P. 173 ].) The method permitted by section 458 however is permissive and not exclusive. Despite

As to the sufficiency of a plea of the statute of limitations under the former method (by alleging facts rather than by reference to the section of the code) it was held in Franklin v. Southern Pac. Co., supra, which was an action for damages and an injunction to abate a nuisance consisting of the erection and maintenance of dikes by means of which waters were obstructed, that an allegation in the answer that the dikes described in the complaint had been 11 erected for more than five years prior to the institution of this action and the cause of action attempted to be set up by plaintiff, if any, is now barred by the statute of limitations of this state, said statute being hereby pleaded as a bar to this action,” was sufficient. In Adams v. Patterson, 35 Cal. 122 , 125, which was an action to recover for certain lumber alleged to have been sold and delivered to the defendants over a period of time, an answer alleging that except as to certain items sued for “no action was accrued to said plaintiffs by reason of the matter mentioned and set forth in said complaint at any time within two years next preceding the commencement of this action” was a sufficient pleading of the statute of limitations. And in Caulfield v. Sanders, 17 Cal. 569 , 572, the court said: “To be available, the plea (statute of limitations) must aver the facts which bring the demand within the operation of the statute—as that the alleged cause of action has not accrued within certain designated years previ-' ous to the filing of the complaint.” Likewise, in Boyd v. Blankman, 29 Cal. 19 , 44 [ 87 Am.Dec. 146 ], the answer was held sufficient as pleading the statute where it alleged “that the pretended cause of action in said complaint set forth did not accrue at any time within five years next before the commencement of this action and he sets up and relies upon the statute in such ease made and provided in bar of said action, as if herein specially pleaded. ’ ’

Conceding that the answer of the appellant here was insufficient as a plea of the statute by the method prescribed by section 458 in that it failed to specify the particular subdivision of the sections therein referred to, we consider first whether or not, in the absence of a demurrer addressed thereto,

However, if we are in error in the foregoing, we nonetheless are of the view that under the circumstances here it was an abuse of discretion for the trial court to refuse appellant’s request to permit a simple amendment necessary to conform the pleading to the requirements of section 458.

Unlike the view obtaining at an earlier date, the defense of the statute of limitations is now regarded as a meritorious one. Indeed it has been said that “statutes of limitation are vital to the welfare of society and are favored in the law” (Shain v. Sresovich, 104 Cal. 402 , 406 [ 38 P. 51 ]) and that “they find their justification in reason and experience.” (Medley v. Hill, 104 Cal.App. 309 , 312 [ 285 P. 891 ].) See also Seid Pak Sing v. Barker, 122 Cal.App. 93 , 100 [ 10 P.2d 92 ]; Moore v. United States Fid. & Guar. Co., 122 Cal.App. 205 , 210 [ 9 P.2d 562 ], Mention is here made of this because thereby it is made apparent that in determining whether a

In support of her contention that the trial court did not abuse its discretion in denying appellant’s request for leave to amend its pleading of the statute, respondent relies upon a number of cases later to be noticed. However, whether or not refusal of leave to amend a defective pleading constitutes an abuse of discretion is not governed by any hard and fast rule applicable to every case regardless of its particular facts. Thus, under varying circumstances, it has been held that it is not an abuse of discretion to permit an amendment pleading the statute of limitations for the first time after the close of the case or the submission thereof (Stoops v. Pistachio, supra; People v. Honey Lake Valley Irr. Dist., 77 Cal.App. 367 , 374 [ 246 P. 819 ]; Wrightson v. Dougherty, 5 Cal.2d 257 , 265 [ 54 P.2d 13 ]; Trower v. San Francisco, 157 Cal. 762 , 769 [ 109 P. 617 ]; Lilly-Brackett Co. v. Sonneman, 157 Cal. 192 , 197 [ 106 P. 715 , 21 Ann.Cas. 1279]). On the other hand it has been held not to be an abuse of discretion for a trial court to refuse to permit an amendment to an answer pleading the statute of limitations for the first time (Cooke v. Spears, 2 Cal. 409 , 413 [ 56 Am. Dec. 348 ]; Stuart v. Landar, 16 Cal. 372 , 375 [ 76 Am.Dec. 538 ]; Rudd v. Byrnes, 156 Cal. 636 , 637 [ 105 P. 957 , 20 Ann.Cas. 124, 26 L.R.A.N.S. 134 ]).

The question presented here, therefore, is a concrete one: Was it an abuse of discretion for the trial court to refuse permission to make the requested amendment where it involved merely the insertion or addition of the particular subdivision of the sections pleaded in the original answer and where, although it appeared from an inspection of the plaintiff’s complaint that all but $7,200 of the principal amount of her claim was barred, the denial of the right to amend would subject the defendant to liability in a sum many times greater?

A reading of the complaint makes it apparent that the plaintiff fully appreciated the fact that her demand was stale and that she would be confronted with the plea of the statute of limitations, for this is the only explanation for stating her single cause of action in two counts, one for in

The question before us may be placed in its true perspective if we assume that the plaintiff had interposed a demurrer to the answer and the same had been sustained without leave to amend, for this is precisely the effect of the trial court’s ruling. Few there are, we believe, who would undertake to sustain such a ruling upon appeal. Certain it is also that such a ruling is incompatible with the philosophy underlying our entire system of pleading, under which, as our Supreme Court has well said: “It can very rarely happen that a court would be justified in refusing a party leave to amend his pleading so that he may properly present his ease.” (Crosby v. Clark, 132 Cal. 1 , 8 [ 63 P. 1022 ].) A practical application of the rule of liberality respecting amendments which is the spirit of our code, is afforded by the case of Marr v. Superior Court, 30 Cal.App.2d 275 [ 86 P.2d 141 ]. That was an action upon a promissory note instituted in a justice’s court. During the trial, defendant sought to introduce in evidence proof of.his discharge in bankruptcy. “That attempt was opposed because he had not pleaded a discharge. His attorney took the position that the failure to plead the discharge was his own fault and not that of his client. He made a motion to be allowed permission to plead the discharge in bankruptcy, the motion was denied and thereafter judgment was entered against” defendant. (P. 277.) After the action had been appealed to the superior court defendant again applied for leave to amend his answer in this particular and the motion

We now come to a consideration of the authorities relied upon by respondent. Before discussing these in detail, however, we desire to point out that in none of them did the answer, as here, undertake to plead any facts tending to show that plaintiff’s cause of action was barred in whole or in part by the statute of limitations. Without exception, the answers therein involved pleaded the statute by way of conclusion as authorized by section 458. For this reason alone, if for no other, we believe them distinguishable from the case at bar.

All of the eases cited by respondent have their genesis in Wolters v. Thomas, 3 C.U. 843 [ 3 P. 565 ], decided in 1893, and which, prior to Overton v. White, 18 Cal.App.2d 567 [ 65 P.2d 99 ], decided in 1937, had been cited but once. (Tipps v. Landers, 182 Cal. 771 [ 190 P. 173 ].) There, however, the Supreme Court, having affirmed the judgment of nonsuit, found it unnecessary to consider the correctness of the ruling in Wolters v. Thomas, but that it seemingly entertained some doubt with respect thereto is evidenced by its comment (later repeated in St. Paul Title & Trust Co. v. Stensgaard, 162 Cal. 178 , 180 [ 121 P. 731 , 39 L.R.A.N.S. 741 ]) as follows: “It may be observed, however, that the only subdivision of that section (Code of Civil Procedure, 337) which could apply to the plaintiff’s cause of action would be subdivision 2.” (P. 776.) The Wolters case, however, may be dismissed with the statement that no question with respect to the right to amend a defective pleading of the statute of limitations was here involved.

Depite this, however, in Overton v. White, 18 Cal.App.2d

Respondent next refers to Hart v. Slayman, 30 Cal.App.2d 556 [ 86 P.2d 861 ], but examination thereof readily discloses that it is without application here for no request to amend was there made.

We have reserved for the last Davenport v. Stratton, 24 Cal.2d 232 [ 149 P.2d 4 ], for this is the case upon which respondent places great reliance. While there is considerable discussion in the course of the majority opinion as to whether it is an abuse of discretion for a trial court to deny leave to amend a pleading of the statute of limitations where only the section and not the particular subdivision thereof is specified, the court did not directly decide the question. It refers in passing to Overton v. White, supra, and those authorities already mentioned wherein it was held that an abuse of discretion does not necessarily appear where a trial court refuses to permit an amendment setting up the defense of a statute for the first time, and concludes its discussion on this phase as follows (p. 249): “It thus appears that the trial court did not base its denial of defendant's application to amend his answer on the ground that such amendment would not be in furtherance of justice, but upon the ground that the statute of limitations had no bearing upon the case. ’ ’ It then proceeds to hold that the trial court’s action in refusing to permit the amendment upon this ground was erroneous. Thereafter, it is said (p. 252): “As the judgment in this case for other reasons must be reversed and the ease remanded for a new trial, the court upon a retrial may then rule upon defendant’s application to amend his plea of the statute of limitations,

“In making such rulings the court disavowed the defect in the pleading as a ground thereof and declared that it so ruled because ‘the statute of limitations has no bearing upon this case.’ That position is untenable. The statute pleaded appears to be a meritorious defense to at least a part of the cause of action sued upon. The court should have considered defendant’s request for leave to amend upon its merits, and, in the circumstances shown, it was an abuse of discretion not to grant such request and thereupon submit the issues to the jury.” (Emphasis added.)

If the true test be, as the authorities unite in declaring, that amendments to pleadings are to be liberally allowed in the furtherance of justice, how may it with reason be said that justice was furthered by denying the right to amend' where the effect thereof is to deprive defendant of the benefit of a meritorious defense simply because, in undertaking to avail himself of it, his counsel makes the mechanical error of failing to specify the particular subdivision of the admittedly

There remains one other matter discussed by counsel which requires consideration as it will necessarily arise upon a retrial, affecting as it does the determination of whether the five-year period prescribed by subdivision 1 of section 336 or the four-year period prescribed by subdivision 1 of section 227, is applicable here.