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Kohan v. Cohan9/21/1988
substituted service a plaintiff may now obtain a binding judgment even in the defendant's absence. While the alternate service provisions may lessen the need for section 351, we do not believe that they repeal section 351 pro tanto." (Id. at p. 636; fn. omitted.) There is no language in section 351 or in the cases interpreting it which limits its applicability to situations where the plaintiff would be unable to sue defendant at all if not in California or where the cause of action has a nexus with California. These requirements which defendants attempt to graft onto section 351, while perhaps applicable for purposes of forum non conveniens analysis (see Corrigan v. Bjork Shiley Corp. (1986) 182 Cal. App. 3d 166, 173, 178 [227 Cal. Rptr. 247]), are irrelevant in determining the applicability of the tolling provisions of section 351.
Defendants next contend that section 351 violates the equal protection clauses of the federal and California Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) because it classifies persons on the basis of residency, depriving nonresidents of the full benefit of the statute of limitations from the time the cause of action accrues. The contention is without merit. Section 351 "does not assume to deprive nonresidents of the benefits of the statute of limitations. What it does is to exclude from computation the time during which any defendant, resident or nonresident, may have been out of the state." (Foster v. Butler (1913) 164 Cal. 623, 628 [130 P. 6].) "'Absence from the state is not an unreasonable or arbitrary basis of classification where the statutes of limitation are concerned.'" (Dew v. Appleberry, supra, 23 Cal. 3d 630, 637, fn. 11.) In order to withstand an equal protection challenge, ordinarily a legislative classification need bear only a rational relationship to a conceivable legitimate state purpose. (In re Marriage of Carpenter (1986) 188 Cal. App. 3d 604, 617 [231 Cal. Rptr. 783].) Section 351 satisfies this requirement inasmuch as it "rationally alleviates any hardship that would result by compelling plaintiff to pursue defendant out of state." (Dew v. Appleberry, supra, 23 Cal. 3d at p. 637; see also G. D. Searle & Co. v. Cohn (1982) 455 U.S. 404, 412 [71 L.Ed.2d 250, 258, 102 S.Ct. 1137].) Defendants argue California has no legitimate interest in furnishing a forum for a cause of action which arose in a foreign country between citizens of that country. While this factor may be pertinent in determining a claim of forum non conveniens (see Price v. Atchison, T. & S. F. Ry. Co. (1954) 42 Cal. 2d 577, 583-584 [268 P.2d 457, 43 A.L.R.2d 756]), it has no place in an equal protection analysis of section 351. On the equal protection question our Supreme Court has determined that section 351 bears a "rational relation to a valid governmental interest." (Dew v. Appleberry, supra, 23 Cal. 3d at p. 637.) We are bound by that determination.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].)
Defendants' final contention is that section 351 violates the commerce clause of the federal Constitution (art. I, § 8, cl. 3). In support of this contention defendants cite Bendix Corp. v. Midwesco Enterprises (1988) 486 U.S. 888 [100 L.Ed.2d 896, 108 S.Ct. 2218], wherein it was held that an Ohio law tolling the limitations period as to foreign corporations which do not consent to the general juris
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