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Kohan v. Cohan9/21/1988
nnot., Statute of Limitations -- Nonresident (1951) 17 A.L.R.2d 502, 506-513.)
Defendants attempt by various arguments to undermine the overwhelming authority rejecting their interpretation of section 351. None of these attempts succeeds.
Citing two cases from other jurisdictions which hold that under tolling provisions similar to section 351 where a debt is contracted in another state by a person who afterwards removes to the forum state the statute of limitations of the latter state is not suspended until his arrival but runs against the cause of action from the time of its accrual (McCormick v. Blanchard (1879) 7 Ore. 232; Snoddy v. Cage (1849) 5 Tex. 106), defendants argue the same rule should prevail in California. It is settled that where, as here, "a rule of law is clearly established by the decisions of the courts of California we are not at liberty to overrule it in favor of one followed in decisions of other states." (Schneider v. Schneider (1947) 82 Cal. App. 2d 860, 862 [187 P.2d 459]; see also Bekins Moving & Storage Co. v. Prudential Ins. Co. (1985) 176 Cal. App. 3d 245, 253 [221 Cal. Rptr. 738].)
Defendants next argue that Dew v. Appleberry (1979) 23 Cal. 3d 630 [153 Cal. Rptr. 219, 591 P.2d 509] mandates a literal reading of section 351 and the statute therefore must be interpreted to apply only to a defendant who was a resident of California, left, and later returned. The Supreme Court in Dew read section 351 literally in reaching the conclusion that a defendant's amenability to substituted or constructive service does not affect the tolling provisions of section 351 and hence the statute of limitations applicable to plaintiff's tort action was tolled during the period of defendant's absence from the state even though plaintiff could have served defendant despite his absence from California during the statutory period. The Dew court did not consider whether section 351 is applicable where a defendant was not a resident of California when the cause of action accrued. A case is not authority for propositions not considered therein. (People v. Ceballos (1974) 12 Cal. 3d 470, 481 [116 Cal. Rptr. 233, 526 P.2d 241]; Linvill v. Perello (1987) 189 Cal. App. 3d 195, 200 [234 Cal. Rptr. 392].)
Defendants further contend that while section 351 was justifiable at the time of its enactment in 1872 because without its tolling provisions plaintiff would have been faced with a choice between foregoing his claim against an absent defendant and pursuing the defendant into another state, such justification no longer exists in light of current laws authorizing extra-territorial service of process. Therefore, defendants argue, section 351 should apply only where a defendant's absence from California deprives plaintiff of a meaningful opportunity to sue the defendant or where the cause of action sued upon has a nexus with California sufficient to justify providing a California forum. This argument is refuted by Dew v. Appleberry, supra, 23 Cal. 3d 630, wherein the court stated: "The Legislature may justifiably have concluded that a defendant's physical absence impedes his availability for suit, and that it would be inequitable to force a claimant to pursue the defendant out of state in order effectively to commence an action within the limitations period. At the same time, by providing alternate
forms of service the Legislature simply encourages a plaintiff to adjudicate his claim expeditiously if possibly [ sic ]; by using
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