# Mass v. Board of Education > California Supreme Court · August 11, 1964 · 61 Cal. 2d 612 URL: https://www.frixlaw.com/law-library/cases/9794741 ## Case - **Full name:** JOHN W. MASS, Plaintiff and Appellant, v. THE BOARD OF EDUCATION OF THE SAN FRANCISCO UNIFIED SCHOOL DISTRICT Et Al., Defendants and Appellants - **Court:** California Supreme Court - **Decided:** August 11, 1964 - **Citations:** 61 Cal. 2d 612; 39 Cal. Rptr. 739; 394 P.2d 579; 1964 Cal. LEXIS 241 - **Precedential status:** Published - **Opinion:** Dissent by McCOMB - **Judges:** McCOMB, Tobriner - **Cited by:** 88 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9794741 ## How later opinions describe it (automated extraction) - finding that although the Labor Code section provided for post-judgment interest, prejudgment interest also available pursuant to Civil Code § 3287 ## Opinion text *631 McCOMB, J. I dissent. I would affirm the portion of the judgment in favor of defendant board. In my opinion, plaintiff was guilty of laches, for the following reasons: First: By choice, he let his credential expire on November 30, 1956, apparently for the purpose of rendering moot the board’s charges against him. Second: After letting his credential expire, he delayed 3% years (until May 30, 1960) before applying for a new one, this period blanketing the three-year period (January 27, 1957, to January 27, 1960) when, but for the expiration of his credential, the board could have prosecuted the charges against him. Third: In that three-year period, plaintiff could, under section 13416 of the Education Code, have brought action 434449 (the action filed by the board against him) to trial and obtained an adjudication of the same rights (reinstatement and back salary) which he now seeks to establish, but he did nothing. Fourth: He delayed another four months (until May 30, 1960) before obtaining a new credential. Fifth: He delayed almost another year (until April 18, 1961) before moving to dismiss action 434449. Sixth: He delayed more than five years after the expiration of his credential before bringing the present action (November 30, 1956, to February 16, 1962). Seventh: During this period the board was paying the salary of another teacher in plaintiff’s place. (“It is presumed that where one has been dismissed from an active position in the public service, someone else has been chosen to take his place.” [Wolstenholme v. City of Oakland, 54 Cal.2d 48, 50 [2] ( 4 Cal.Rptr. 153 , 351 P.2d 321 ), cert, denied, 364 U.S. 865 ( 81 S.Ct. 110 , 5 L.Ed.2d 88 ).]) Meanwhile, plaintiff was running up a claim to back salary and damages totaling to date $132,476 ($82,476 salary and $50,000 general damages), plus interest and fringe benefits in an undisclosed amount. (Only $18,915 of plaintiff’s salary claim is for the period prior to expiration of his credential.) The rule of laches is founded in sound policy, and its application prevents inequity and injustice. (Callender v. County of San Diego, 161 Cal.App.2d 481, 484 [ 327 P.2d 74 ].) Rights should be promptly asserted to protect against dual *632 payment for the same service. (Hermanson v. Board of Pension Comrs., 219 Cal. 622, 625 [ 28 P.2d 21 ]; Callender v. County of San Diego, supra, 161 Cal.App.2d 481, 484 ; Donovan v. Board of Police Comrs., 32 Cal.App. 392 , 399 et seq. [ 163 P. 69 ]; Harby v. Board of Education, 2 Cal.App. 418, 420 [ 83 P.2d 1081 ].) In United States ex rel. Arant v. Lane, 249 U.S. 367, 372 [39 S.Ct.'293, 63 L.Ed. 650 ], it is stated: “When a public official is unlawfully removed from office, whether from disregard of the law by his superior or from mistake as to the facts of his ease, obvious considerations of public policy make it of first importance that he should promptly take the action requisite to effectively assert his rights, to the end that if his contention be justified the Government service may be disturbed as little as possible and that two salaries shall not be paid for a single service. ’ ’ In Wolstenholme v. City of Oakland, supra, 54 Cal.2d 48, 50 [1], we said: “Public policy requires that an employee of a public body who claims to have been improperly or illegally discharged must act with the utmost diligence in asserting his rights.” At page 51 (54 Cal.2d) we referred to eases holding that delays of 9, 12, 15, 16, and 18 months were incompatible with the utmost diligence with which an employee of a public body must assert his rights. The delay held to constitute laches in Wolstenholme was 19 months. To similar effect, and reversing judgments because of laches, are Hayman v. City of Los Angeles, 17 Cal.App.2d 674, 680-681 [ 62 P.2d 1047 ] (9 months’ delay), and Kramer v. Board of Police Comrs., 39 Cal.App. 396, 400-401 [ 179 P. 216 ] (4 years, 9 months’ delay). (See also Doan v. City of Long Beach, 130 Cal.App. 526, 528 [2] [ 20 P.2d 777 ], affirming a judgment based on an order sustaining a demurrer where the delay was 18 months.) The prompt action which plaintiff, in the exercise of diligence, should have taken to assert his rights was to (1) renew his credential instead of letting it expire, thus keeping alive the charges against him, (2) have action 434449 retried instead of waiting more than.four years (January 27, 1957, to April 18, 1961) to move for its dismissal for want of prosecution, (3) apply promptly for a new credential after he let his old one expire, instead of waiting 3% years (November 30, 1956, to May 30, 1960), and (4) promptly after November 30, 1956, seek a dismissal of action 434449 and bring *633 this action, instead of waiting until February 16, 1962, to do so. Under the circumstances, plaintiff did not act with “the utmost,” or any, diligence. Schauer, J., concurred. The petition of the defendants and appellants for a rehearing was denied September 10, 1964. Schauer, J., and McComb, J., were of the opinion that the petition should be granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794741. Public record. Not legal advice.