Kelley v. Upshaw’s Empirical Analysis

Citation profile

43 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 47 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““The rule has long been settled that the defense that an action is premature is in the nature of a dilatory plea not favored in the law, and that such defense must be seasonably urged in the trial court or it is waived.” (See also Kelley v. Upshaw, 39 Cal.2d 179, 186 [ 246 P.2d 23 ].)”

   2 later decisions quote this exact passage
   e.g. 117 Cal. App. 2d 761 - Fireman's Fund Indemnity Co. v. Knorr · 162 Cal. App. 2d 262 - Wurm v. Metz

2. ““However, a more accurate statement of the rule appears to be ‘that the plea that an action has been prematurely brought is in the nature of a dilatory plea which must be specially pleaded in order to be available as a defense. ’ (Verbeck v. Clymer, 202 Cal. 557, 562 [ 261 P. 1017 ]; Realty & Rebuilding Co. v. Rea, 184 Cal. 565, 573 [ 194 P. 1024 ]; Mears v. Jeffry, 80 Cal.App.2d 610, 615 [ 182 P.2d 294 ].) In Bemmerly v. Woodward, 124 Cal. 568 [ 57 P. 561 ], the opinion assumes that an objection based upon prematurity of the action was made in the statement on motion for a new trial. At that time, the bringing of a new suit would have been barred by a statute of limitations. No cause of action existed at the time the suit was commenced. The court held that the defense had not been seasonably urged and was waived. It said that ‘this is a mere matter of abatement, which is waived unless pleaded. Formerly, such pleas could only be interposed before a plea to the merit. Under our code all defenses may be included in one answer, but if a defense which is mere matter of abatement is not made by that time, it should be deemed waived. ... It is simply matter of abatement—a defense which is not favored, and must be made by plea, and in proper time, or it is waived. If so waived the court will be rarely justified in permitting the defense to be made later.’ (Pp. 574-575.) Likewise, in Bollinger v. National Fire Ins. Co., 25 Cal.2d 399, 405-406 [ 154 P.2d 399 ], the court held that the”

   1 later decision quote this exact passage
   e.g. 117 Cal. App. 2d 761 - Fireman's Fund Indemnity Co. v. Knorr

3. “`[a]n agreement for an option not based upon consideration is simply a continuing offer which may be revoked at any time.' [Citation.]”

   1 later decision quote this exact passage
   e.g. 163 Cal. App. 4th 359 - Steiner v. Thexton