Johnson v. Nolan

13 Citing cases

  1. Pashley v. Pacific Elec. Ry. Co.

    25 Cal.2d 226 (Cal. 1944)   Cited 133 times
    In Pashley v. Pacific Elec. Ry. Co., 25 Cal.2d 226, 235 [ 153 P.2d 325], we said: "As determined in those cases, the confidence growing out of the relationship of doctor and patient imposed upon the physician the duty of refraining from fraudulent concealment, that is, the duty of disclosure when he had knowledge of the facts.... Where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action.

    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.

  2. Kimball v. Pacific Gas Elec. Co.

    220 Cal. 203 (Cal. 1934)   Cited 57 times
    In Kimball v. Pacific Gas Elec. Co., 220 Cal. 203, 30 P.2d 39, supra, it was held that "the three-year period provided for in section 338, subdivision 4, of the Code of Civil Procedure, applies only where fraud is the gravamen of the original action."

    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.

  3. Hills Trans. Co. v. Southwest

    266 Cal.App.2d 702 (Cal. Ct. App. 1968)   Cited 61 times

    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.

  4. Whitson v. City of Long Beach

    200 Cal.App.2d 486 (Cal. Ct. App. 1962)   Cited 12 times

    " 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.)

  5. Zakaessian v. Zakaessian

    70 Cal.App.2d 721 (Cal. Ct. App. 1945)   Cited 81 times
    In Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721, 725 (Zakaessian), the court held that the three-year statute of limitations in section 338, subdivision (4) (now subdivision (d)) applies to a cause of action to set aside a void instrument based upon fraud or mistake.

    [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.

  6. Corum v. Hartford Acc. & Ind. Co.

    67 Cal.App.2d 891 (Cal. Ct. App. 1945)   Cited 14 times

    [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.

  7. Fox Chicago R. Corp. v. Zukor's

    50 Cal.App.2d 129 (Cal. Ct. App. 1942)   Cited 17 times
    In Fox Chicago R. Corp. v. Zukor's (1942) 50 Cal.App.2d 129, 122 P.2d 705 (Fox Chicago), the landlord and lessee entered a series of lease amendments reducing the rent to below the previously agreed upon $4,100 per month.

    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.

  8. Gum v. Allen

    119 Cal.App. 293 (Cal. Ct. App. 1931)   Cited 10 times

    ) 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.

  9. Crossett Health Center v. Croswell

    221 Ark. 874 (Ark. 1953)   Cited 41 times
    In Crossett Health Center v. Croswell, 221 Ark. 874, 883, 256 S.W.2d 548, 552 (1953), this court made the point clearly and undisputedly that it was up to the jury to consider the factors militating for and against charitable status and to determine whether "the Medical Center was a trust involving dedication of its property to the public.

    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.

  10. Burton v. Tribble

    189 Ark. 58 (Ark. 1934)   Cited 46 times
    In Burton, this court held the physician's failure to inform the patient tolled the statute of limitations until he either removed the object, or the patient learned or should have learned of its presence.

    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.