DEW v. APPLEBERRY (1978)

On September 23, 1973, appellant Dew slipped and fell on a stairway on premises owned by respondent Appleberry. Respondent was absent from California for about five weeks between September 23, 1973, and September 23, 1974. On September 24, 1974, appellant filed an unverified complaint alleging appellant's injuries were caused by the carelessness and negligence of respondent. On September 23, 1976, respondent moved for summary judgment on the ground that the complaint had not been filed within the proper period under the applicable statute of limitations. Appellant responded that under Code of Civil Procedure section 351,¹ the statute of limitations was tolled while respondent was absent from the state and that the complaint was timely filed. The motion for summary judgment was granted, and in the order granting summary judgment, it was further ordered and adjudged that the complaint be dismissed. Appellant filed notice of appeal from the order “on the grounds that the Superior Court refused to exclude from the calculation of the period for the running of the statute of limitations, that period of time for which the (respondent) acknowledged he was absent from the state.” (See Stanley v. City and County of San Francisco (1975) 48 Cal.App.3d 575, 577, fn. 1, 121 Cal.Rptr. 842.)

Section 340, subdivision 3, provides a one-year statute of limitations for an action for injury caused by the wrongful act or neglect of another. Section 312 provides: “Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.”

Section 351 provides: “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.”

Appellant filed her complaint one year and one day after the accident. She contends, however, that section 351 mandates “that the statute of limitations be tolled while respondent was out of the state.” Respondent contends that “the statute of limitations is not tolled against an absent defendant when substituted service is possible.”

Code of Civil Procedure section 351 was enacted in 1872 and it has never been amended. It has been held that the primary consideration in a strict application of section 351 was that during a defendant's absence from the state he could not have been served with a summons and complaint for the purpose of conferring upon a court jurisdiction to enter a personal judgment against him. (Schneider v. Schneider (1947) 82 Cal.App.2d 860, 187 P.2d 459.) But that section must now be considered in the light of statutes subsequently enacted which provide for alternative methods of service of summons.

It appears from respondent's declaration that he could have been served personally (s 415.10); by substituted service (s 415.20); by mail (s 415.30), outside the state (s 415.40); or even, perhaps, by publication (s 415.50). Absence from the state will not toll the applicable statute of limitations for commencing an action where, as here, a method of substituted service is available to confer jurisdiction. (Bigelow v. Smik (1970) 6 Cal.App.3d 10, 85 Cal.Rptr. 613; Dovie v. Hibler (1967) 254 Cal.App.2d 673, 62 Cal.Rptr. 228; Garcia v. Flores (1976) 64 Cal.App.3d 705, 134 Cal.Rptr. 712.)

Order affirmed.

FOOTNOTES

1.  All statutory references are to the Code of Civil Procedure.

ROUSE, Associate Justice.

TAYLOR, P. J., and KANE, J., concur.