Olivas v. Weiner, 274 P.2d 476 (Cal. Ct. App. 1954). · Go Syfert
Olivas v. Weiner, 274 P.2d 476 (Cal. Ct. App. 1954). Cases Citing This Book View Copy Cite
97 citation events (5 in the last 25 years) across 8 distinct courts.
Strongest positive: Hanh Nguyen v. Western Digital Corp. (calctapp, 2014-09-25)
Treatment trajectory · 1956 → 2026 · click a year to view as-of
1956 1991 2026
Top citers, strongest first. 24 distinct citers.
discussed Cited as authority (rule) Hanh Nguyen v. Western Digital Corp.
Cal. Ct. App. · 2014 · confidence medium
(Young, 41 Cal.3d at p. 892 , citing Stats. 1941, ch. 337, § 1, p. 1579.) In Olivas v. Weiner (1954) 127 Cal.App.2d 597, 599 [ 274 P.2d 476 ], the court explained, “The Legislature undoubtedly concluded that to permit such an action to be filed up to 22 *1545 years after the child’s birth, i.e., within one year after it reached majority,[ 9 ] placed an unreasonable burden upon the defendant to locate witnesses and to produce evidence in defense of the charges after the lapse of such a long period.
discussed Cited as authority (rule) Landau v. Superior Court
Cal. Ct. App. · 1998 · confidence medium
(Tapia, supra, 53 Cal.3d at p. 288 .) “Such a statute ‘ “is not made retroactive merely because it draws upon facts existing prior to its enactment .... [Instead,] [t]he effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future.” ’ (Strauch v. Superior Court (1980) 107 Cal.App.3d 45, 49 [ 165 Cal.Rptr. 552 ], quoting Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ].) For this reason, we have said that ‘it is a misnomer to designate [such statutes] as having retrospective effect.’ [Citation.]” (I…
discussed Cited as authority (rule) Save Our Forest & Ranchlands v. County of San Diego (2×) also: Cited "see"
Cal. Ct. App. · 1996 · confidence medium
(See Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ]; Nelson v. A. H.
discussed Cited as authority (rule) Tapia v. Superior Court (2×)
Cal. · 1991 · confidence medium
Such a statute "`is not made retroactive merely because it draws upon facts existing prior to its enactment.... [Instead,] [t]he effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future." ( Strauch v. Superior Court (1980) 107 Cal. App.3d 45, 49 [ 165 Cal. Rptr. 552 ], quoting Olivas v. Weiner (1954) 127 Cal. App.2d 597, 600-601 [ 274 P.2d 476 ].) For this reason, we have said that "it is a misnomer to designate [such statutes] as having retrospective effect." ( Morris v. Pacific Electric Ry.
discussed Cited as authority (rule) Krusesky v. Baugh
Cal. Ct. App. · 1982 · confidence medium
(See Brown v. Bleiberg (1982) 32 Cal.3d 426, 437 [ 186 Cal.Rptr. 228 , 651 P.2d 815 ]; Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ].) 5 Donna filed her action less than three years after January 1, 1978, and therefore she is not barred by the four-year occurrence rule of section 340.6.
discussed Cited as authority (rule) Kelemen v. Superior Court
Cal. Ct. App. · 1982 · confidence medium
(Stats. 1941, ch. 327, pp. 1579-1580; Olivas v. Weiner (1954) 127 Cal.App.2d 597, 599 [ 274 P.2d 476 ].) After the 1941 amendment, it was established that Civil Code section 29 contains the statute of limitations for prenatal injuries.
discussed Cited as authority (rule) University of Utah Hospital Ex Rel. Harris v. Pence
Idaho · 1982 · confidence medium
In Olivas v. Weiner, 127 Cal.App.2d 597 , 274 P.2d 476 (1954), the court qualified its application of a new statute of limitation to an accrued cause of action: “It has repeatedly been held that the Legislature may reduce a statute of limitations and that the new period applies to accrued causes of action provided a reasonable time is allowed within which to assert the cause.” 274 P.2d at 478 (emphasis added).
discussed Cited as authority (rule) Anton v. San Antonio Community Hospital
Cal. Ct. App. · 1982 · confidence medium
There is then no problem as to whether the Legislature intended the changes to operate retroactively.” (Accord Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ]; see also Van Nuis v. Los Angeles Soap Co. (1973) 36 Cal.App.3d 222, 228, fn. 2 [ 111 Cal.Rptr. 228 ].) In the case at bench the 1978 amendment to section 1094.5 became effective January 1, 1979.
discussed Cited as authority (rule) Strauch v. Superior Court
Cal. Ct. App. · 1980 · confidence medium
The effect of such *49 statutes is actually prospective in nature since they relate to the procedure to be followed in the future.” (Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ].) A statute is procedural when it neither creates a new cause of action nor deprives defendant of any defense on the merits.
cited Cited as authority (rule) Osborne v. County of Los Angeles
Cal. Ct. App. · 1979 · confidence medium
Bk., 13 Cal.App.2d 621, 623-624 [ 57 P.2d 233 ]; Olivas v. Weiner, 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ]; Niagara Fire Ins.
discussed Cited as authority (rule) State v. Lindquist (2×)
Idaho · 1979 · confidence medium
Olivas v. Weiner, 127 Cal. App.2d 597 , 274 P.2d 476, 479 (1954). *112 Lindquist has been convicted of murder, the same murder statute in effect at the time of the murder and at his trial.
discussed Cited as authority (rule) Wagner v. State of California (2×)
Cal. Ct. App. · 1978 · confidence medium
(See Scheas v. Robertson (1951) 38 Cal.2d 119, 125 [ 238 P.2d 982 ]; Rosefield Packing Co. v. Superior Court (1935) 4 Cal.2d 120, 122-123 [ 47 P.2d 716 ]; Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ].) The argument that the limitations period of section 337.1 is inapplicable because defendant seeks indemnity is unacceptable.
discussed Cited as authority (rule) Bacon v. Wong
N.D. Cal. · 1978 · confidence medium
Central Missouri Telephone Co. v. Conwell, 170 F.2d 641, 648 (8 Cir. 1948); Rosefield Packing Co. v. Superior Court, 4 Cal.2d 120 , 47 P.2d 716, 717 (1935); Olivas v. Weiner, 127 Cal. App.2d 597 , 274 P.2d 476, 478 (1954).
cited Cited as authority (rule) Canfield v. Prod
Cal. Ct. App. · 1977 · confidence medium
Co., 30 Cal.2d 165, 169 [ 180 P.2d 900 , 171 A.L.R. 563 ]; Olivas v. Weiner, 127 Cal.App.2d 597, 599-600 [ 274 P.2d 476 ].)
discussed Cited as authority (rule) Van Nuis v. Los Angeles Soap Co.
Cal. Ct. App. · 1973 · confidence medium
(See: Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393-394 [ 182 P.2d 159 ]; Estate of Patterson (1909) 155 Cal. 626, 638 [ 102 P. 941 ]; Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ]; National Auto. & Cas.
cited Cited as authority (rule) Cameron v. Cozens
Cal. Ct. App. · 1973 · confidence medium
(Olivas v. Weiner, 127 Cal.App.2d 597, 599 [ 274 P.2d 476 ].) The judgment is reversed.
cited Cited as authority (rule) Church v. County of Humboldt
Cal. Ct. App. · 1967 · confidence medium
(Sour v. Superior Court, 1 Cal.2d 542, 544-545 [ 36 P.2d 373 ] ; Olivas v. Weiner, 127 Cal.App.2d 597, 599 [ 274 P.2d 476 ]; National Auto. & Cas.
discussed Cited as authority (rule) Baldwin v. City of San Diego
Cal. Ct. App. · 1961 · confidence medium
“It is an established principle of statutory construction that when two alternative interpretations are presented, one of which would be unconstitutional and the other constitutional, the court will choose that construction which will *241 uphold the validity of the statute and will be constitutional. ’ ’ (Estate of Skinker, 47 Cal.2d 290, 297 [10] [ 303 P.2d 745 , 62 A.L.R.2d 1137 ].) See also Olivas v. Weiner, 127 Cal.App.2d 597, 600 [6] [ 274 P.2d 746 ]; County of Los Angeles v. Legg, 5 Cal.2d 349, 353 [2] [ 55 P.2d 206 ]; In re Shafter-Wasco Irr.
discussed Cited as authority (rule) Owens v. Superior Court (2×)
Cal. · 1959 · confidence medium
(Ex parte Collett, 337 U.S. 55, 71 [ 69 S.Ct. 944 , 93 L.Ed. 1207 ] ; Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 544 [ 69 S.Ct. 1221 , 93 L.Ed. 1528 ] ; Norton v. City of Pomona, 5 Cal.2d 54, 65-66 [ 53 P.2d 952 ] ; San Bernardino County v. Industrial Acc. Com., 217 Cal. 618, 628-630 [ 20 P.2d 673 ] ; McClurg v. McClurg, 212 Cal. 15, 18 [ 297 P. 27 ] ; Rice v. Dunlap, 205 Cal. 133, 137 [ 270 P. 196 ] ; Olivas v. Weiner, 127 Cal.App.2d 597, 600-601 [ 274 P.2d 476 ] ; California Emp. etc. Com. v. Smileage Co., 68 Cal.App.2d 249, 252 [ 156 P.2d 454 ] ; see Aetna Cas. & Surety Co. v.…
discussed Cited as authority (rule) Brown v. Friesleben Estate Co.
Cal. Ct. App. · 1956 · confidence medium
There is then no problem as to whether the Legislature intended the changes to operate retroactively.” ( 30 Cal.2d 388, 394 .) Or as was held in Olivas v. Weiner, 127 Cal.App.2d 597, 600 [ 274 P.2d 476 ], ‘‘Statutes are presumed to operate prospectively.
discussed Cited "see" Young v. Haines (2×)
Cal. · 1986 · signal: see · confidence high
(Stats. 1941, ch. 337, § 1, p. 1579; see Olivas v. Weiner (1954) 127 Cal.App.2d 597, 599 [ 274 P.2d 476 ].) However, the six-year rule was not absolute.
examined Cited "see" Greenhalgh v. Payson City (4×) also: Cited "see, e.g."
Utah · 1975 · signal: see · confidence high
If the person for whom the claim is made is a minor, then the claims covered by this section may be so presented within the time limits specified above or within one year after the person reaches the age of majority, whichever is longer.", is not applicable in this case because as was held in Ireland v. Mackintosh, 22 Utah 296 , 61 P. 901 , "The subsequent passage of an act by the legislature increasing the period of limitation could not operate to affect or renew a cause of action already barred."; see 51 Am.Jur.2d, Limitations of Actions, § 44. [15] Christiansen v. Rees, 20 Utah 2d 199 , 43…
examined Cited "see, e.g." Lopez v. Sony Electronics, Inc. (3×)
Cal. Ct. App. · 2016 · signal: see also · confidence low
(Stats. 1941, ch. 337, § 1; see also Olivas v. Weiner (1954) 127 Cal.App.2d 597, 599 .) The Legislature also amended former Civil Code section 29 “to state expressly that [Code of Civil Procedure] section 352 tolling did not apply to actions brought under that statute.” (Young, supra, 41 Cal.3d at p. 892 , italics added.) Then, in 1992, the Legislature moved the limitations period of former Civil Code section 29 to the Code of Civil Procedure and reenacted it, without substantive change, as Code of Civil Procedure section 340.4.
discussed Cited "see, e.g." People v. Nevarez (2×)
Cal. Ct. App. · 1982 · signal: see also · confidence medium
See also Olivas v. Weiner (1954) 127 Cal.App.2d 597, 600 [ 274 P.2d 476 ]; Masonic Mines Assn. v. Superior Court (1934) 136 Cal.App. 298, 300 [ 28 P.2d 691 ]; Coleman v. Superior Court (1933) 135 Cal.App. 74, 76-77 [ 26 P.2d 673 ].) The effect of changes in criminal procedure upon pending actions has also been considered.
HECTOR OLIVAS, Appellant,
v.
WILLIAM M. WEINER, Respondent
Civ. 20230.
California Court of Appeal.
Sep 29, 1954.
274 P.2d 476
HECTOR OLIVAS, Appellant, v. WILLIAM M. WEINER, Respondent.
Fox.
Cited by 46 opinions  |  Published
FOX, J.

This is an action for damages for malpractice growing out of defendant’s attendance upon plaintiff’s birth on December 1, 1931. Plaintiff filed his complaint on June 23, 1953. Defendant’s demurrer was sustained without leave to amend. Plaintiff appeals from the ensuing judgment of dismissal.

This case turns upon thé interpretation and application of section 29 of the Civil Code. * Plaintiff contends that the six-year limitation specified in the amendment, within which to bring such an action, does not apply to him since it was added some 10 years after he was born, at which time the alleged negligent injury occurred; that it applies only to causes of action that arose after the amendment became effective. Defendant, however, argues that it was the purpose and intention of the Legislature to fix a six-year statute of limitation within which to bring such a suit and that it applies to[*599] both future and accrued causes of action. Hence the time limitation applies to plaintiff’s case and his cause of action is barred. Defendant’s position must be sustained.

Fixing the time within which particular rights must be asserted is a matter of legislative policy. In pursuance of such policy the Legislature in 1941 amended section 29 to provide that an action authorized by that section, such as the instant case, must be brought within six years from the date of the birth of the child. In this connection it should be noted that in July, 1939, the District Court of Appeal, in Scott v. McPheeters, 33 Cal.App.2d 629 [92 P.2d 678, 93 P.2d 562], sustained the right of an 11-year-old child to maintain an action such as this and stated that ‘ ‘ The statute of limitations does not run against such an action until the child arrives at the age of majority [p. 631].” It was at the next regular session of the Legislature that the six-year limitation was added to the section. The problem was undoubtedly brought into legislative focus by the decision in the Scott case, supra, and that decision “may properly be considered as bearing upon the legislative intent and purpose in the adoption” of .the amendment. (Clements v. T. R. Bechtel Co., 43 Cal.2d 227, 231 [273 P.2d 5].) The very fact that the section was amended “demonstrated an intent to change the pre-existing law.’” (People v. Weitzel, 201 Cal. 116, 118 [255 P. 792, 52 A.L.R. 811].) The Legislature undoubtedly concluded that to permit such an action to be filed up to 22 years after the child’s birth, i.e., within one year after it reached majority, placed an unreasonable burden upon the defendant to locate witnesses and to produce evidence in defense of the charges after the lapse of such a long period. The Legislature decided that six years was a reasonable time within which to bring such an action.

The question then arises, does the amendment apply to causes of action that had already accrued? The answer must be in the affirmative since the reasons for such a time limitation are even more cogent, because in all such cases more than six years would have elapsed between the accrual of the cause of action and the running of the statute. In the instant ease such period was almost 16 years. Thus the problem of locating witnessees and assembling evidence would be correspondingly more difficult. Here, however, if plaintiff’s position is to be sustained the defendant would be required to defend a charge of malpractice which occurred[*600] more than 21% years ago. The Legislature immediately recognized the seriousness of the problem following the Scott v. McPheeters decision and proceeded to correct the situation. In the light of these circumstances it is inconceivable that the Legislature intended that the six-year limitation which it added to section 29 should apply only to persons born after the enactment of the amendment and thus allow the problem with respect to accrued causes to become more acute by lapse of time. If six years was a reasonable time within which to sue for future injuries (and it undoubtedly was), it was all the more ample for those that had previously occurred. It should therefore apply to both situations, for such construction is in harmony with the rule that “Where a statute is susceptible of two constructions, the one which leads to the more reasonable result will be followed.” (Clements v. T. R. Bechtel Co., supra.) It has repeatedly been held that the Legislature may reduce a statute of limitations and that the new period applies to accrued causes of action provided a reasonable time is allowed within which to assert the cause. (Estate of Whiting, 110 Cal.App. 399 [294 P. 502]; Estate of Venners, 119 Cal.App. 417, 419 [6 P.2d 544] ; Thompson v. County of Los Angeles, 140 Cal.App. 73, 76 [35 P.2d 185]; Norton v. City of Pomona, 5 Cal.2d 54, 65 [53 P.2d 952]; Kline v. San Francisco U. Sch. Dist., 40 Cal.App.2d 174, 176 [104 P.2d 661, 105 P.2d 362]; Scheas v. Robertson, 38 Cal.2d 119, 125 [238 P.2d 982]; Crothers v. Edison Elec. Co., 149 F. 606; Terry v. Anderson, 95 U.S. 628 [24 L.Ed. 365].)

Plaintiff argues that the amendment operates retrospectively because it starts the time running from the date of his birth, viz., December 1, 1931, and therefore purports to cut off his right of action immediately upon its passage; hence it is invalid as to him. Since, under most circumstances, such a result would be unconstitutional and, in any event, harsh and unreasonable, “It will be presumed that such was not the intent of the legislature.” (Sohn v. Waterson, 17 Wall. (U.S.) 596, 599 [21 L.Ed. 737].) Statutes are presumed to operate prospectively. (See Civ. Code, § 3, and Code Civ. Proc., § 3. This amendment is no exception to such rule. Anyone having a right of action under the statute had six years after the amendment became effective within which to file his complaint. A statute is not made retroactive merely because it draws upon facts existing prior to its enactment. Thus changes in procedural[*601] law have been, held applicable to existing causes of action. The effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future. (National Auto. & Cas. Ins. Co. v. Downey, 98 Cal.App.2d 586, 590 [220 P.2d 962]; Arques v. National Superior Co., 67 Cal.App.2d 763, 778 [155 P.2d 643] ; Earle v. Froedtert Grain & Malting Co., 197 Wash. 341 [85 P.2d 264].)

In his reply brief plaintiff points out that the statute speaks of a child “not yet born” and “subsequent birth.” He contends this phraseology indicates that the limitation of time applies only to actions accruing after the amendment. This argument is specious. The quoted language was in the statute when originally adopted and was used to define the class of persons to which it applied.

Plaintiff relies on Bank of America v. Dennison, 8 Cal. App.2d 173 [47 P.2d 296], That case is not here applicable because the specific language used in the amendments makes it unmistakably clear that they applied only to sales made after the amendments became effective. For an analysis of the decision in that case see Birkhofer v. Krumm, 27 Cal. App.2d 513, 528-529 [81 P.2d 609],

The judgment is affirmed.

Moore, P. J., and McComb, J., concurred.

A petition for a rehearing was denied October 15, 1954, and appellant’s petition for a hearing by the Supreme Court was denied November 24, 1954.

*

That section reads as follows, the italicized portion having been added in 1941:

“A child conceived, but not yet bom, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth; hut any action hy or on hehalf of a minor for personal inju/ries sustained prior to or in the course of his hirth must be brought within six years from the date of the hirth of the minor, and the time such minor is under any disability mentioned in Section 85% of the Code of Civil Procedure shall not he excluded vn computing the time limited for the commencement of the action.”