Langdon is a California state prisoner. He sued certain police officers, the ap-pellees, basing his action upon the provisions of the Civil Rights Act, 42 U.S.C. § 1983 et seq. The District Court granted the appellees’ motions to dismiss the action, and Langdon appeals.

The motions to dismiss were based upon two specified grounds as follows: (1) That the complaint “[f Jails to state a claim upon which relief may be granted;” and (2) that the complaint '“[s]hould be dismissed at this time for the reason that said suit can be brought in a more favorable atmosphere by the Plaintiff after he has been released from a State Prison.” In support of the second ground, the appellees argued to the District Court:

The District Court’s order of dismissal recites the appellees’ claim that “the Federal Court should refrain from taking jurisdiction at this time for the reason that said suit can be brought in a more favorable atmosphere by the Plaintiff after he has again become a member of free society.”

In our court, the appellees do not undertake to sustain the District Court’s order upon the ground that the complaint did not contain an adequate statement of Langdon’s claim. They apparently recognize, as do we, that such a contention would have no merit. They also abandon the second ground upon which they relied in the court below. They reverse their position and urge affirmance upon the sole contention that Langdon’s suit is barred by the applicable California statute of limitations. See Cal.Code Civ.Proc. § 338 (West Supp.1957). They argue that Langdon is serving a sentence of life imprisonment “without possibility of parole” and that, hence, the three-year limitations period has not been tolled during Lang-don’s period of confinement. This argument rests upon a section of California’s Code of Civil Procedure which provides in pertinent part:

Cal.Code Civ.Proc. § 352 (West Supp. 1959) (Emphasis added.) Langdon’s suit was instituted more than three years after the alleged wrongs giving rise to the action. This being true, the appellees have presented in our court, for the first time, a serious question.

The District Court has had no opportunity to consider this question. The appellees did not plead the defense of lapse of time in the court below, and such defense must ordinarily be specifically pleaded under California law. See Berendsen v. McIver, 126 Cal.App. 2d 347 , 272 P.2d 76 (Dist.Ct.App.1954) (must be raised by answer or demurrer not by a motion to dismiss). See also Everts v. Blaschko, 17 Cal.App.2d 188 , 61 P.2d 776 (Dist.Ct.App.1936); Hart v. Slayman, 30 Cal.App.2d 556 , 86 P.2d 861 (Dist.Ct.App.1934). Not only was the defense not urged, the argument to the District Court was to the effect that Langdon would have every opportunity to prosecute his action upon his release from prison.

Even when a statute of limitations is applicable, the California courts have held that a defendant may waive the defense or that he may be estopped to assert it. See United States Cas. Co. v. industrial Acc. Comm’n, 122 Cal.App.2d 427 , 265 P.2d 35 (Dist.Ct.App.1954); Industrial Indem. Co. v. Industrial Acc. Comm’n, 115 Cal.App.2d 684 , 252 P.2d 649 (Dist.Ct.App.1953); Pashley v. Pacific Elec. R. Co., 25 Cal.2d 226 , 153 P.2d 325 (1944); Adams v. California Mut. Bldg. & Loan Ass’n, 18 Cal.2d 487 , 116 P.2d 75 (1941); Prussing v. Prussing, 35 Cal.App.2d 508 , 96 P.2d 128 (Dist.Ct.App.1939); Hart v. Slayman, 30 Cal.App.2d 556 , 86 P.2d 861 (Dist.Ct. App.1934). The question as to whether or not there has been waiver or estoppel may necessarily involve the consideration of different circumstances and the resolution of disputed issues of fact.

From the foregoing considerations we conclude that we cannot sustain the order of dismissal. Langdon should • not be deprived of his rights by the ap- ' plication of a statute which has not been interpreted by the District Court in the light of facts which may be peculiar to Langdon’s case and upon the basis of an argument here which is directly opposite to that which Langdon was required to meet in the court below.

Reversed and remanded.