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Kohan v. Cohan9/21/1988
physically present in California at any time. Defendant appealed from judgment in favor of plaintiff contending the action was barred by the statute of limitations. Defendant argued that inasmuch as section 351 uses the word "return" to this state, it has no application to a nonresident defendant who, until she appeared in the present action, was never in California; such a defendant cannot "return" to a state she never entered. The court rejected the contention stating: "While it is true that normally the term 'return' carries with it the implication of coming back after having first been here, the term as used in statutes of limitations, and particularly in statutes of the nature of section 351, has quite uniformly been interpreted to mean that the section applies so as to toll the statute not only where the
defendant was once a resident of the state and leaves it and returns, but also where the defendant has never been in, or resided in, the state until the filing of the complaint. The term as used in statute of limitations has come to have this special meaning. The applicable principles, supported by authorities from many states (Texas alone being cited to the contrary), are stated as follows in 17 Ruling Case Law, page 837, section 199: 'According to the generally accepted doctrine, if the statute provides that the period of limitation shall not run in favor of a debtor who is absent from or out of the state, the saving clause extends to foreigners, or those who have never resided in the state, as well as to citizens who may be temporarily absent. Whether the defendant be a resident of the state, and only absent for a time, or whether he resides altogether out of the state, is immaterial. He is equally within the proviso. If the cause of action arose out of the state, it is sufficient to save the statute from running in favor of the party to be charged until he comes within its jurisdiction. . . .'" (Cvecich v. Giardino, supra, 37 Cal. App. 2d at p. 399.)
Cases before and after Cvecich consistently have interpreted section 351 to toll the statute of limitations as to a cause of action against a defendant who was a nonresident of California when the cause of action accrued; in such case the statute commences to run only when the defendant enters the state. (San Diego Realty Co. v. Hill (1914) 168 Cal. 637, 639 [143 P. 1021]; McCormick v. Marcy (1913) 165 Cal. 386, 388-389 [132 P. 449]; McKee v. Dodd (1908) 152 Cal. 637, 639-640 [93 P. 854]; Dougall v. Schulenberg (1894) 101 Cal. 154, 157 [35 P. 635]; Lewis v. Superior Court (1985) 175 Cal. App. 3d 366, 373 [220 Cal. Rptr. 594]; State Medical Education Bd. v. Roberson (1970) 6 Cal. App. 3d 493, 501 [86 Cal. Rptr. 258]; State National Bank v. Kerfoot (1919) 41 Cal. App. 198, 200 [182 P. 320]; Chappell v. Thompson (1913) 21 Cal. App. 136, 137-138 [131 P. 82].) "The California tolling statute is not expressly limited in its coverage, and the California courts, like those in most other states with similar statutes, have refused to limit its application. The fact that the statute speaks of defendant's 'return to the state' has been held not to restrict its coverage where the defendant is a non-resident and has not been in California previously; the statute has been held to apply to a foreign cause of action between non-residents." (Note, Limitation of Actions: Absence of the Defendant: Tolling the Statute of Limitations on a Foreign Cause of Action (1954) 1 UCLA L.Rev. 619, 620, fns. omitted; see also A
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