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Kohan v. Cohan9/21/1988
tion defendant submitted letters which he sent to each of the plaintiffs (dated Feb. 19, 1976, and Mar. 2, 1976, respectively) which stated, "I declare and announce herewith that I am not ready to cooperate with you henceforth by any term and condition whatsoever," and demanded that all funds, documents, notes and commercial instruments in plaintiffs' possession belonging to defendant be returned to him. In his declaration in opposition to the motion plaintiff Khanbaba stated that after he received the letter from defendant the parties restored relations and thereafter continued to conduct the partnership business as they always had done. The motion for summary judgment was granted. The order granting the motion stated that the cause of action for an accounting -- the fundamental cause of action in the complaint -- accrued in 1976 when defendant repudiated the partnership agreement. The California statute of limitations, not that of Iran, is applicable in this case. The four-year statute of limitations (Code Civ. Proc., ยงยง 337, subd. 1, 343) governs, was not tolled by section 351, and bars this action. Summary judgment accordingly was entered in favor of defendants and against plaintiffs.
Plaintiffs moved for a new trial on the grounds that section 351 applies to toll the statute of limitations until defendant's arrival in California and, in any event, there is a triable issue of fact as to whether or not defendant's repudiation of the partnership in 1976 later was nullified by acts and statements of the parties. The motion was granted on the first ground, i.e., section 351 is applicable in this case. The order granting the motion for new trial expressly vacated the summary judgment.
Defendants moved for reconsideration of the order granting a new trial. The court granted the motion but, upon reconsideration, reaffirmed its new trial order.
Defendants appeal from the order granting plaintiffs' motion for a new trial. Plaintiffs cross-appeal from the summary judgment.
Discussion
I
Defendants' Appeal
The first clause of section 351 provides that " , when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State . . . ." The second clause of the statute provides that "if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action." Defendants contend the word "return" in the first clause shows the intent of the Legislature that section 351 apply only where a person was present in California before a cause of action accrued against him, was absent from the state when the cause of action accrued, and thereafter returned to California. The use of the word "departs" in the second clause, defendants argue, further supports this interpretation of section 351.
In Cvecich v. Giardino (1940) 37 Cal. App. 2d 394 [99 P.2d 573], an argument similar to that of defendants was rejected. There, in 1929 the defendant, a resident of New Jersey, executed in New Jersey a written bond wherein she agreed to pay to plaintiff, a resident of New York, a sum of money in 1932. This obligation was secured by real property in New Jersey and was payable in New York. The debt was not paid when due and prior liens on the real property were foreclosed rendering plaintiff's security valueless. In 1937 plaintiff commenced an action in California on the obligation and attached certain property of defendant in this state. Plaintiff was a resident of New York and defendant a resident of New Jersey; neither party was
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