PICK v. MORSE (1991)

Plaintiff appeals from summary judgment entered in favor of defendants on the ground that her action against them for personal injuries was barred by the statute of limitations.¹  The principal appellate issue is whether Vehicle Code section 17463 applies to this case, in which defendants were at all pertinent times resident motorists.²

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed her action against defendants Lynn Stalmaster and Terrell Morse on October 30, 1989.   Her second amended complaint alleged that on October 19, 1988, defendants negligently entrusted and operated their Ford Bronco as to collide with her automobile, causing her injuries and damages;  both defendants were outside the jurisdiction more than 12 days since the date of the accident;  and she exercised reasonable diligence in attempting to locate Stalmaster and was unsuccessful despite repeated attempts to locate and contact him, both before and after October 19, 1989.

As affirmative defenses in their answer to the complaint, defendants alleged that the complaint is barred by the one-year statute of limitations of Code of Civil Procedure section 340, subdivision (3);  and, in apparent reliance on Vehicle Code section 17463, that both defendants have been residents of California for many years, Stalmaster has had a California driver's license since 1943, and both have been amenable to personal and substituted service since the date of the accident.

Both defendants moved for summary judgment or alternatively for summary adjudication of issues, on the ground that the complaint is barred by the statute of limitations (Code Civ.Proc., § 340, subd. (3)) and pursuant to Vehicle Code section 17463.   Defendants argued that even if, as alleged in the complaint, they were absent from California for 12 days in the year after the accident, the one-year statute of limitations was not tolled because plaintiff did not use reasonable diligence to locate them.   Morse moved for summary judgment on the additional ground that he was neither a driver nor registered owner of any vehicle involved in the accident.

According to defendants' separate statement of undisputed facts, Stalmaster was the driver of the Ford Bronco involved in the accident and the registered owner of the Bronco was Terlea Productions, Inc.;   Morse was the president of Terlea Productions, Inc.;   Stalmaster has lived in Los Angeles since 1938 and has had a California driver's license since 1943;  Morse has been a resident of Los Angeles for at least 17 years.

In opposition to the motion, plaintiff contended that there was a triable issue of fact as to whether plaintiff had exercised reasonable diligence to locate Stalmaster in the year after the accident.   Plaintiff also contended that defendants had no standing to move at that time for summary judgment because such motion was in violation of a May 14, 1990 order that defendants were not entitled to conduct discovery until Stalmaster had been deposed.

In addressing the merits of the motion, plaintiff's attorney declared that at a November 8, 1990 hearing in the action, defendants' counsel offered to stipulate that Stalmaster was out of California more than 12 days during the year after the accident, and he accepted the stipulation in open court;  at the time he was retained by plaintiff, she told him the driver of the car that hit her was “Lynn Stalmaster of 9401 Wilshire Boulevard, # 700, Beverly Hills” and the owner was “Ferris Morse,” whose address plaintiff did not have;  in November 1988, he wrote to Stalmaster at the Beverly Hills address but received no reply;  in early September 1989, he personally went to the Beverly Hills address, a 12–story office building;  Stalmaster's name was not on the building directory;  the receptionist in Suite 700 did not know Stalmaster;  he retained Sanford Levenberg to follow up.

Levenberg declared that on September 12 and 21, 1989, he went to the Beverly Hills address where the receptionist stated she would not divulge any information about Stalmaster or whether the office was connected with him;  he also went to offices at 9911 Pico Boulevard but could not find Stalmaster's name on the building directory.   According to defendants' declarations in response to plaintiff's opposition, the offices of “Lynn Stalmaster & Associates” has been located at 9911 West Pico Boulevard since 1971 and is listed in the telephone directory.

The minute order on the hearing on the summary judgment motion states, “The Court finds plaintiff's declarations do not contain adequate evidence that she used adequate diligence in locating defendants.   The motion for summary judgment is granted.”   Although our record does not contain a reporter's transcript of the hearing on the motion for summary judgment, the minute order indicates that the court granted summary judgment on the basis of Vehicle Code section 17463.   Plaintiff timely filed notice of appeal from the summary judgment.   On appeal, appellant challenges the propriety of the court's hearing and granting of the motion for summary judgment.   Appellant also challenges as an abuse of discretion the court's October 31, 1990 ruling on her “Motion for Order Imposing Issue, Terminating, and Monetary Sanctions” against Stalmaster for abuse of discovery and failure to comply with prior court orders.

I

VEHICLE CODE SECTION 17463

 Our review of a summary judgment is limited to determining upon a de novo examination whether there was no genuine issue of material fact and the moving party was entitled to judgment as a matter of law.  (White Motor Corp. v. Teresinski (1989) 214 Cal.App.3d 754, 760, 263 Cal.Rptr. 26.)   If the trial court has erred, either in failing to find a triable issue of fact where there is one, or in failing to apply undisputed facts to a correct principle of law, then the judgment must be reversed.  (Ibid.)  The construction of a statute and the question of whether it is applicable present solely questions of law, which may be determined on a motion for summary judgment.  (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 329, 265 Cal.Rptr. 788.)

Were Vehicle Code section 17463 applicable to the circumstances of this case, we would conclude that there would be no triable issue of fact as to the statute of limitations defense and that respondents would be entitled to summary judgment in their favor.   However, we do not believe that section 17463 applies to the circumstances of this case.

 Vehicle Code section 17463 (ante, fn. 2), expressly incorporates and must be read in connection with sections 17459 and 17460 of the Vehicle Code.  Section 17459 provides:  “The acceptance by a resident of this state of a certificate of ownership or a certificate of registration of any motor vehicle or any renewal thereof, issued under the provisions of this code, shall constitute the consent by the person that service of summons may be made upon him within or without this state, whether or not he is then a resident of this state, in any action brought in the courts of this state upon a cause of action arising in this state out of the ownership or operation of the vehicle.”

Section 17460 states:  “The acceptance or retention by a resident of this state of a driver's license issued pursuant to the provisions of this code, shall constitute the consent of the person that service of summons may be made upon him within or without this state, whether or not he is then a resident of this state, in any action brought in the courts of this state upon a cause of action arising in this state out of his operation of a motor vehicle anywhere within this state.”

As the following legislative history illustrates, the purpose of sections 17459 and 17460 was to subject to service of process those drivers who were residents of California at the time of the accident but who subsequently changed residency;  the assertion of jurisdiction over such a person was predicated upon the theory of consent of such person by virtue of accepting a California driver's license or certificate of ownership or registration.

A few cases, cited below, illuminate the legislative intent of the former nonresident motorist statutes.   The former California nonresident motorist statute (former Veh.Code, § 404), enacted in 1935, (Chesin v. Superior Court (1956) 142 Cal.App.2d 360, 364, 298 P.2d 593), applied only to persons who were not residents of this state at the time of the accident.  (Radner v. Eide (1957) 151 Cal.App.2d 800, 803, 312 P.2d 74.)   The current statute, in Vehicle Code section 17450, provides:  “As used in this chapter, ‘nonresident’ means a person who is not a resident of this State at the time the accident or collision occurs.”

Former Vehicle Code section 404 provided “for substituted service upon a nonresident of the state against whom a cause of action has arisen by reason of his operation of a motor vehicle upon the highways of this state.”  (Chesin v. Superior Court, supra, 142 Cal.App.2d at p. 364, 298 P.2d 593.)   “Jurisdiction in such cases is predicated upon the theory of consent of the nonresident to substituted or constructive service and the appointment of the secretary of state or like officer as agent for receipt of service of process.  [Citations.]   This consent is largely fictional but it meets the problem of process in regard to highway automobile accidents involving nonresident motorists․   However, these statutes, in order to be valid, must provide some method of service reasonably designed to give notice of the action to the defendant [citations].”  (Allen v. Superior Court (1953) 41 Cal.2d 306, 311–312, 259 P.2d 905.)

“With this background of legislative action and judicial decisions, the Legislature enacted in 1951 section 417 of the Code of Civil Procedure.  [Citation.]   That section provides:  ‘Where jurisdiction is acquired over a person who is outside of this state by publication of summons in accordance with sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this state at the time of the commencement of the action or at the time of service.’ ”  (Allen v. Superior Court, supra, 41 Cal.2d at p. 312, 259 P.2d 905.)   Thus, the operation of former Code of Civil Procedure section 417 was made dependent on defendant's residence within the state either at the time of commencement of the action or time of service, and on his personal service with summons.  (Ibid.)

“After the enactment of section 417, Code of Civil Procedure, it became apparent that a resident of this state who left the state after a cause of action had arisen against him because of his negligent operation of an automobile upon the highways of this state, but before any action was commenced against him, was in a more advantageous position than a nonresident, inasmuch as he was not, but a nonresident driver was, subject to service of process outside the state.   To remedy this situation, the State Bar sponsored, and the Legislature enacted, sections 404.1 through 404.4, both inclusive, of the Vehicle Code.”  (Chesin v. Superior Court, supra, 142 Cal.App.2d at p. 364, 298 P.2d 593.)   Former Vehicle Code sections 404.1 and 404.2, enacted in 1955, were the predecessors to Vehicle Code sections 17459 and 17460;  former Vehicle Code section 404.4 was the predecessor to section 17463.³

As explained in Abrams v. Stone (1957) 154 Cal.App.2d 33, 41–42, 315 P.2d 453:  “The whole idea of the legislation here under consideration [former Vehicle Code sections 404.1 and 404.2] was to continue unimpaired against a resident of this state who subsequently becomes a nonresident, precisely the same right of redress through the California courts which would have bound him had he remained a resident of this state.   As was said in Allen v. Superior Court, 41 Cal.2d 306, 313 [259 P.2d 905] ․:  ‘As a citizen of the state wherein the action was commenced, he had certain responsibilities arising out of his relationship to that state by reason of domicile, one of which was amenability to suit therein.   Such relationship and responsibility based on citizenship within the state are not terminated by his subsequent removal to another state, and he may be served with process pursuant to a method reasonably designed to give him notice of the proceedings brought against him in the courts of the state of his original domicile prior to his departure therefrom.’ ”

Given the legislative history and intent of the predecessors to Vehicle Code sections 17459 and 17460, which contained similar language to Vehicle Code sections 17459 and 17460, we conclude that the provisions now at issue apply to a nonresident who had been a resident, with a California driver's license or certificate of registration or ownership, at the time of the accident.   There is nothing in the legislative history of the predecessor statutes to sections 17459 and 17460 that indicates they were enacted to address the resident motorist who may be temporarily absent from the state.

Although the ambiguity of the statutory phrase “whether or not he is then a resident of this state” may suggest that the Legislature intended to extend sections 17459 and 17460 to apply to all residents, there is nothing to suggest that the intent of the Legislature was to do so.   There is no indication that the general law in the Code of Civil Procedure did not provide means for service on the resident motorist who had not changed residency but who may be temporarily absent from the state.

Moreover, were sections 17459 and 17460 construed to apply to all residents who possessed California driver's licenses or certificates of registration at the time of the accident, regardless of their subsequent residency, it would result in the anomaly that all such residents, even when they did not change residency, would be subject to being served by the same methods of substituted or constructive service prescribed for nonresident motorists, rather than by personal service in the state of California.  (See Veh.Code, § 17461:  “In the event summons is served outside of this state, pursuant to Sections 17459 and 17460, it may be served and proof of service shall be made, in the manner provided by Sections 17454, 17455, and 17456 for service of summons upon a nonresident, or it may be served pursuant to Chapter 4 ․ of Title 5 of Part 2 of the Code of Civil Procedure.”)

Because the doctrine of consent used to assert jurisdiction over nonresidents is not needed to assert jurisdiction over residents, and because it would be unreasonable to ascribe to the Legislature the intent to permit, for no apparent reason, service of process on residents by a method less reasonably designed to provide actual notice of the action, we decline to construe sections 17459 and 17460 to apply to residents.   Rather, it is more reasonable to construe those statutes to apply to nonresidents who at the time of the accident had been residents with California driver's licenses or certificates of ownership or registration.

Accordingly, because Vehicle Code section 17463 applies “when summons may be personally served upon a person as provided in Sections 17459 and 17460,” and because those latter sections address the resident motorist who changes residency after the accident, section 17463 applies to that particular class and not to the broader class of all resident motorists.

More recently, one court has also concluded, although without elaboration, that “Sections 17459 and 17460 provide that acceptance by a California resident of a certificate of ownership or registration, or a driver's license, constitutes consent by that person that personal service in an action arising out of the operation or ownership of a motor vehicle in California may be made within or without the state, regardless of a subsequent change of residency.”   (Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 115, 277 Cal.Rptr. 730.)

We believe the court in Bigelow v. Smik (1970) 6 Cal.App.3d 10, 14, 85 Cal.Rptr. 613, misinterpreted Vehicle Code sections 17459, 17460, and 17463 as applying to absent residents.   In Bigelow, an Ohio resident was involved in an accident in California and returned to Ohio a few days after the accident.   The court concluded that “since a nonresident motorist is amenable to service of process within the state and to the entry of personal judgment against him, the reason for [Code of Civil Procedure] section 351 is not present, the section does not apply, and the period of limitation for commencing suit against him does not suspend.”  (6 Cal.App.3d at p. 15, 85 Cal.Rptr. 613.)

The plaintiff in Bigelow argued that section 351 should apply to nonresidents because Vehicle Code section 17463 applied only to resident motorists absent from the state;  the court in Bigelow intimated that it agreed with plaintiff's premise that section 17463 “expressly provides that the limitation period continues to run for actions against absent resident motorists who can be served with process outside the state pursuant to Vehicle Code sections 17459 and 17460.”  (6 Cal.App.3d at p. 14, 85 Cal.Rptr. 613.)   The court also stated that sections 17459 and 17460 “deal with service of process outside the state.”  (Ibid.)

The court in Bigelow failed to take into account the legislative history of the predecessor statutes to sections 17459 and 17460, which history indicates that the statutes were intended to apply where a California resident involved in an accident subsequently changes residency.   Moreover, those statutes clearly contemplate service of summons either within or without the state of California.  (See also Vehicle Code section 17461.)   We therefore decline to follow the interpretation of section 17463 suggested in Bigelow.⁴

Some courts have assumed, without explanation, that Vehicle Code section 17463 applies whenever the defendant motorist was at all pertinent times a California resident with a California driver's license or certificate of ownership or registration.   Thus, in Dovie v. Hibler (1967) 254 Cal.App.2d 673, 62 Cal.Rptr. 228, where the defendant was at all times a California resident with a California driver's license but went to Nevada for several hours on each of two separate days within a year after the accident, the court of appeal rejected without discussion the plaintiff's contention that the statute of limitations was tolled because of defendant's absence under Code of Civil Procedure section 351, and instead found the trial court had correctly applied Vehicle Code section 17463 in determining that defendant's absence did not toll the statute of limitations because he could at all times have been located and plaintiff failed to make any showing of any effort to do so.  (254 Cal.App.2d at p. 675, 62 Cal.Rptr. 228.)

Dovie was cited in Dew v. Appleberry (1979) 23 Cal.3d 630, 153 Cal.Rptr. 219, 591 P.2d 509, in support of the proposition that “Although the California statute [Code of Civil Procedure section 351] itself remains unchanged from the date of enactment, the Legislature is clearly aware of the statute's broad ramifications, and has modified the reach of the rule in appropriate circumstances.   Thus when substituted or constructive service of process upon a defendant resident motorist is available in ‘a cause of action arising in this state out of his operation of a motor vehicle anywhere within this state’ (Veh.Code, § 17460), ‘[n]otwithstanding any provision of Section 351 of the Code of Civil Procedure to the contrary ․, the time of his absence from this State is part of the time limited for the commencement of the action ․’ ” (23 Cal.3d at pp. 634–635, 153 Cal.Rptr. 219, 591 P.2d 509.)

We decline to infer from the ambiguous reference to “defendant resident motorist” in Dew that the court therein intended to address the scope of Vehicle Code sections 17459 and 17460 and the distinction between a resident motorist and a resident motorist who after the accident becomes a nonresident.   Because a case is not authority for propositions not therein considered (Kohan v. Cohan (1988) 204 Cal.App.3d 915, 922, 251 Cal.Rptr. 570), we do not deem Dew to address the issue presented in Dovie or in the instant case.   Moreover, Dew cannot be interpreted to endorse the holding in Dovie because the issue was not before the court in Dew.   Thus, while Dew correctly noted that Vehicle Code section 17463 manifests the Legislature's awareness of the broad ramifications of Code of Civil Procedure section 351 and modification of that rule (23 Cal.3d at pp. 634–635, 153 Cal.Rptr. 219, 591 P.2d 509), we do not read Dew as attempting to address the issue of whether section 17463 applies to resident motorists or only those motorists who were residents at the time of the accident and subsequently changed residency.

Hirsch v. Blish (1977) 76 Cal.App.3d 163, 142 Cal.Rptr. 646 presents similar facts as in Dovie, except that the defendant took a two-week vacation out of the state.   The issue of whether Vehicle Code section 17463 applied to Blish, who was at all times a California resident, was not discussed, as it was conceded that “The parties agree that the one year statute of limitations applies to the case at bench.   They agree also that the general tolling provisions for absence from the state contained in Code of Civil Procedure section 351 are not applicable and that the case at bench is controlled by Vehicle Code section 17463.”  (76 Cal.App.3d 163, 165, 142 Cal.Rptr. 646.)

Not surprisingly, respondents rely upon Dovie and Hirsch as dispositive of the instant appeal.   Appellant contends that Dovie and Hirsch are distinguishable on their facts.   We conclude that Dovie and Hirsch are not particularly helpful in resolving the issue of whether section 17463 applies in the instant case.   In Dovie, the court failed to engage in any statutory analysis to support its conclusion that Vehicle Code section 17463 properly applied to the facts of that case, and in Hirsch, the issue was conceded by the parties and the concession was accepted by the court without further discussion.

 To the extent that appellant's attorney may be deemed to have adopted respondents' interpretation of Vehicle Code section 17463, a reviewing court is not bound to accept concessions of parties as establishing the law applicable to a case.  (Bell v. Tri–City Hospital Dist. (1987) 196 Cal.App.3d 438, 449, 241 Cal.Rptr. 796.)   Our own analysis of statutory history and the pertinent law compel us to conclude that Vehicle Code section 17463 does not apply under the undisputed facts of the instant case.   Accordingly, Code of Civil Procedure section 351 may apply (see Dew v. Appleberry, supra, 23 Cal.3d 630, 153 Cal.Rptr. 219, 591 P.2d 509), and respondents' summary judgment motion was deficient in failing to negate the allegations of the complaint that they were absent from California for more than 12 days in the year following the accident.   Summary judgment should therefore be reversed.   In light of this conclusion, we need not address appellant's contention that respondents had no standing to bring the motion for summary judgment until they had complied with prior discovery and sanction orders.

II

OCTOBER 31, 1990 ORDER

On this appeal, appellant seeks review of an October 31, 1990 order, wherein the court purportedly denied her request to strike Stalmaster's answer and enter his default for alleged discovery abuses.   This order is not in our record on appeal;  however, a Notice of Ruling of October 31, 1990, prepared by plaintiff states that the court “ruled that the motion [plaintiff's motion for sanctions and to compel] was technically defective for failure to comply with CRC 335, but did not deny it, and ordered that defendant Stalmaster appear for further deposition by the plaintiff before the Hon. L. Wolf, retired Judge of this Court, to referee the deposition and for all further discovery issues, the cost thereof to be shared by the parties, and further ordered that plaintiff was not entitled to any interest on the delinquent sanctions of $877.65, which had been ordered to be paid within 20 days ․ by Order of March 29, 1990, and that such monetary sanctions should be mailed forthwith to plaintiff's counsel.”

Appellant has not sought appellate relief from this order.   It is also questionable that it is a matter properly reviewable on appeal from the judgment pursuant to Code of Civil Procedure section 906.   Appellant does not establish how the order “involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party․”  (Code Civ.Proc., § 906.)   In any event, were we to reach the merits, we would conclude that appellant has not met her burden of establishing that the trial court abused its discretion in the matter.

DISPOSITION

The summary judgment is reversed and the trial court is directed to deny the defendants' motion for summary judgment.   The parties shall bear their own costs on appeal.

FOOTNOTES

1.   Plaintiff also appeals from an order denying her motion for new trial.   As appellant raises no issue as to this order, we deem the appeal therefrom to be abandoned.

2.   Vehicle Code section 17463, enacted in 1959, provides:  “Notwithstanding any provisions of Section 351 of the Code of Civil Procedure to the contrary, when summons may be personally served upon a person as provided in Sections 17459 and 17460, the time of his absence from this State is part of the time limited for the commencement of the action described in those sections, except when he is out of this State and cannot be located through the exercise of reasonable diligence, except this section in no event shall be applicable in any action or proceeding commenced on or before September 7, 1956.”Code of Civil Procedure section 351 states:  “If, 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, and 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.”

3.   As quoted in Radner v. Eide, supra, 151 Cal.App.2d at page 801, 312 P.2d 74, former section 404.1 provided in pertinent part:“The acceptance by a resident of this State of a certificate of ownership or a certificate of registration of any motor vehicle or any renewal thereof, issued under the provisions of this code, shall constitute the consent by such person that personal service of summons may be made upon him at any place where he may be found, whether or not he is then a resident of this State, with the same force and effect as though served within this State․”Former section 404.2 provided in pertinent part that “The acceptance by a resident of this State after the effective date of this section, of an operator's or chauffeur's license issued pursuant to the provisions of this code, shall constitute the consent of such person that personal service of summons may be made upon him at any place where he may be found and whether or not he is then a resident of this State․”  (151 Cal.App.2d at p. 801, 312 P.2d 74.)Former section 404.4 provided in pertinent part:  “Notwithstanding any provisions of Section 351 of the Code of Civil Procedure to the contrary, when summons may be personally served upon a person as provided in Sections 404.1 and 404.2, the time of his absence from this state is part of the time limited for the commencement of the action described in said sections, except when he is out of this state and cannot be located through the exercise of reasonable diligence․”  (151 Cal.App.2d at p. 802, 312 P.2d 74.)

4.   Bigelow itself has been misinterpreted in Dew v. Appleberry (1979) 23 Cal.3d 630, 153 Cal.Rptr. 219, 591 P.2d 509, as standing for the proposition that the exclusionary provision of Vehicle Code section 17463 has been applied to actions against nonresident motorists.  (23 Cal.3d at p. 635, fn. 8, 153 Cal.Rptr. 219, 591 P.2d 509.)   Yet the court in Bigelow did not apply section 17463 to nonresident motorists;  the court simply (and erroneously) stated that the purported failure of section 17463 to include nonresident motorists within its scope (and thus outside the scope of Code of Civil Procedure section 351) did not preclude the court from concluding that section 351 did not apply to nonresident motorists for another reason.   Ironically, the reason—amenability to service of process—relied upon by the court in Bigelow was expressly rejected by the court in Dew v. Appleberry, supra, 23 Cal.3d 630, 153 Cal.Rptr. 219, 591 P.2d 509.

LILLIE, Presiding Justice.

JOHNSON and FRED WOODS, JJ., concur.