Wolstenholme

Petitioner appeals from a judgment which denied her application for a writ of mandate directing respondents to reinstate her to the position of senior librarian of the Library Department of the City of Oakland, California.

Facts: Petitioner was employed by respondent library board from January 1949 until November 9, 1954, at which time she was discharged from her position as senior librarian by the board of library directors. The board operates and manages the Oakland Free Library and had jurisdiction over petitioner’s employment.

On September 20 and 23, 1954, hearings were had before the board with respect to petitioner’s qualifications and suitability for public service.

Thereafter, on November 9, 1954, petitioner was discharged by resolution of the board on the basis of insubordination and misconduct in refusing to answer certain questions which she had been asked. On November 30, 1954, pursuant to the provisions of the charter of respondent municipality, petitioner *50 appealed said discharge to the Civil Service Board of the City of Oakland, which board upheld the decision of respondent library board. On June 6, 1956, one year and seven months after her discharge,…

This case presents three questions: (1) Is plaintiff barred by laches? (2) Was the field involved in this litigation occupied by state law to the exclusion of local regulation? (3) If the field was so occupied, is there nevertheless a basis for upholding plaintiff’s dismissal ?

The majority opinion, having determined the first of these questions adversely to plaintiff, has found it unnecessary to consider the others, which is unfortunate because matters of public importance are left unresolved. I am of the view that the conclusion reached with respect to the question of laches is incorrect and that the other two questions should be decided in favor of plaintiff.

The defense of laches depends not only on a plaintiff’s delay in asserting a right but also on an injury to the defendant, and it has long been settled that mere delay in commencing an equitable proceeding without a showing of inequitable conduct or prejudice suffered thereby is not sufficient to bar the action. (Phoenix Mutual L. Ins. Go. v. Birkelund, 29 Cal.2d 352, 363 [ 175 P.2d 5 ] ; Allen v. California Mutual B. & L. Assn., 22 Cal.2d 474, 488 [ 139 P.2d 321 ] ; Austin v. Hallmark Oil Co., 21 Cal.2d 718, 735 [ 134…

McCOMB, J.

Petitioner appeals from a judgment which denied her application for a writ of mandate directing respondents to reinstate her to the position of senior librarian of the Library Department of the City of Oakland, California.

Facts: Petitioner was employed by respondent library board from January 1949 until November 9, 1954, at which time she was discharged from her position as senior librarian by the board of library directors. The board operates and manages the Oakland Free Library and had jurisdiction over petitioner's employment.

On September 20 and 23, 1954, hearings were had before the board with respect to petitioner's qualifications and suitability for public service.

Thereafter, on November 9, 1954, petitioner was discharged by resolution of the board on the basis of insubordination and misconduct in refusing to answer certain questions which she had been asked. On November 30, 1954, pursuant to the provisions of the charter of respondent municipality, petitioner appealed said discharge to the Civil Service Board of the City of Oakland, which board upheld the decision of respondent library board. On June 6, 1956, one year and seven months after her discharge,…