Suspension of the statute has been refused in cases where discovery was late but neither fraud nor fraudulent concealment was involved. ( Gale v. McDaniel, 72 Cal. 334 [13 P. 871]; People v. Melone, 73 Cal. 574 [15 P. 294]; Lattin v. Gillette, 95 Cal. 317 [30 P. 545, 29 Am.St.Rep. 115]; Lambert v. McKenzie, 135 Cal. 100 [ 67 P. 6]; Wetzel v. Pius, 78 Cal.App. 104 [ 248 P. 288]; Johnson v. Nolan, 105 Cal.App. 293 [ 288 P. 78]; Daily Tel. Co. v. Long Beach Press Pub. Co., 133 Cal.App. 140 [ 23 P.2d 833]; Rose v. Dunk-Harbison Co., 7 Cal.App.2d 502 [ 46 P.2d 242]; Bathke v. Rahn, 46 Cal.App.2d 694 [ 116 P.2d 640]; State Comp. Ins. Fund v. Industrial Acc.Com., (Cal.App.) [152 P.2d 505].) In State Comp. Ins. Fund v. Industrial Acc. Com., the Supreme Court granted a hearing on December 4, 1944.
In fact, the first three of these cases were distinguished on that very ground in the Lightner case, supra ( 161 Cal., at p. 696). The only case from this state cited by appellant at all in point is Johnson v. Nolan, 105 Cal.App. 293 [ 288 P. 78], a case in which no hearing was asked in this court. This was a malpractice case.
In these latter cases the pleadings appear to have been unverified, at least so far as we can tell from the opinion. ( Tognazzi v. Wilhelm, 6 Cal.2d 123, 127 [ 56 P.2d 1227]; Terry v. Bender, 143 Cal.App.2d 198, 205 [ 300 P.2d 119]; McDonald v. California, 130 Cal.App.2d 793 [ 279 P.2d 777]; Zakaessian v. Zakaessian, 70 Cal.App.2d 721, 724 [ 161 P.2d 677]; Johnson v. Nolan, 105 Cal.App. 293 [ 288 P. 78].) We think the better formulation of the rule draws no artificial distinction between verified and unverified pleadings but permits the trial court in either case to function without blinkers and take note when pertinent of the entire history of the pleadings.
" In view of the conclusions reached herein, it is not necessary to discuss other questions such as whether the demurrer of the Long Beach Oil Development Company was sufficient in form to raise the bar of the statute of limitations as to the sixth cause of action of the second amended complaint (see Chadbourn, Grossman Van Alstyne, California Pleading, § 1264; Graham v. Los Angeles First Nat. Trust Sav. Bank, 3 Cal.2d 37, 43-44 [ 43 P.2d 543]; cf. Williams v. International Longshoremen's Warehousemen's Union, 172 Cal.App.2d 84, 88 [ 341 P.2d 729]) and whether if that legal issue was raised, the cause of action appears to be barred (see Schaefer v. Berinstein, supra, 140 Cal.App.2d 278, 294-295; Mock v. Santa Monica Hospital, 187 Cal.App.2d 57, 60, 66 [ 9 Cal.Rptr. 555]; Johnson v. Nolan, 105 Cal.App. 293, 294 [ 288 P. 78]); whether the seventh cause of action of the second amended complaint is barred by laches (see Warfield v. Anglo London Paris Nat. Bank, 202 Cal. 345, 356 [ 260 P. 881]; Hencken v. City of Morgan Hill, 21 Cal.App.2d 438, 444 [ 69 P.2d 462]); and whether in this case there is lack of jurisdiction insofar as the state is concerned because of the doctrine of sovereign immunity. (See People v. Superior Court, 29 Cal.2d 754, 756 [ 178 P.2d 1, 40 A.L.R.2d 919]; Stafford v. People, 144 Cal.App.2d 79, 83 [ 300 P.2d 231]; 45 Cal.Jur.2d, State of California, §§ 159-160.)
[1b] The plaintiff cannot cure this essential defect in his cause of action upon this theory, once it has been disclosed, by omission of mention of the 1924 deed in subsequent statements of the same cause of action without explanation. ( Wennerholm v. Stanford Univ. Sch. of Med., 20 Cal.2d 713, 716 [ 128 P.2d 522, 141 A.L.R. 1358]; Williamson v. Joyce, 137 Cal. 151, 153 [ 69 P. 980]; Johnson v. Nolan, 105 Cal.App. 293, 294 [ 288 P. 78].) Therefore the demurrer to the complaint insofar as it attacked the first cause of action was properly sustained.
[4a] However, the failure to allege a date, which appears to be material, such as the date of an accident, known to plaintiff, and as to which it may be assumed plaintiff's knowledge is superior to that of defendant, is subject to special demurrer. ( Baird v. Olsheski, 102 Cal.App. 452 [ 283 P. 321]; Johnson v. Nolan, 105 Cal.App. 293 [ 288 P. 78].) Under such circumstances a pleader may not rely upon the rule that statements of facts constituting the cause of action involving an essential and material allegation (Code Civ. Proc., § 463) shall be pleaded in ordinary and concise language (Code Civ. Proc., § 426) as dispensing with the necessity of alleging specifically the date of the occurrence of an event if material.
Under such circumstances it was proper for the trial court, as it is for this court, to construe the allegations of the pleading before us by referring to the exhibit attached to the former pleading. ( Williamson v. Joyce, 137 Cal. 151 [61 P. 980]; Johnson v. Nolan, 105 Cal.App. 293 [ 288 P. 78]; Wennerholm v. Stanford U. Sch. of Med. (Cal.App.) [113 P.2d 736]; Ventura etc. Ry. Co. v. Hartman, 116 Cal. 260 [48 P. 65]; Alphonso E. Bell Corp. v. Bell View Oil Syndicate, 46 Cal.App. (2d) 684, 116 P.2d 786.) Reporter's Note: A hearing was granted by the Supreme Court in Wennerholm v. Stanford U. Sch. of Med. on July 30, 1941.
) And it has been held that such cases fall within the bar of section 340, subdivision 3 of the Code of Civil Procedure. ( Jones v. Kelly, 208 Cal. 251 [ 280 P. 942]; Huntly v. Zurich Gen. A. L. Co., 100 Cal.App. 201 [ 280 P. 163]; Johnson v. Nolan, 105 Cal.App. 293 [ 288 P. 78].) REPORTER'S NOTE. — A hearing was granted by the Supreme Court in the case of Kershaw v. Tilbury on October 15, 1931.
The gist of the opinion is that when, through fraudulent concealment by the tortfeasor, a party against whom a cause of action exists prevents the person alleging injury from obtaining knowledge thereof, the statute of limitation will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence. "This," says the opinion of Chief Justice WILSON, "is the rule apart from any statute." To the same effect is Johnson v. Nolan, 105 Cal.App. 293, 288 P. 78, and other cases cited in 74 A.L.R. 1317. See, also, 144 A.L.R. 209, 151 A.L.R. 1035. Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503, is to the point.
Cases from several jurisdictions have been cited in support of the doctrine that in all tort actions the cause of action arises upon the infliction of the injury and tending to support the contention that the applicable statute of limitation cannot be tolled or held in abeyance in its application. Among the cases cited are Johnson v. Nolan, 105 Cal.App. 293, 288 P. 78; Schmidt v. Esser, 183 Minn. 354, 236 N.W. 622, 74 A.L.R. 1312. Upon examination, it is found that a number of cases cited, notably Johnson v. Nolan, are based upon specific statutes which expressly provide that all malpractice suits shall and must be brought within a certain period of time after the infliction of the injury, but we have no such statute in this State.