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TCM Corp. v. Superior Court of the County of San Bernardino12/17/2003
Petitioner TCM Corporation (TCM) demurred to the products liability action of Robert Marquez (Marquez) on the ground that it is barred by the statute of limitations. Marquez filed the present action more than one year after sustaining injury, but he contends that the statute of limitations was tolled pursuant to Code of Civil Procedure section 351 because TCM, a Japanese corporation, was at all times absent from California. After the trial court overruled its demurrer, TCM petitioned this court for a writ of mandate. We summarily denied the petition, but the Supreme Court granted TCM's petition for review and transferred the matter to us with directions to issue an order to show cause. We have done so. We conclude that TCM is entitled to the relief requested because the pleading fails to allege facts to establish that the limitations period was tolled under section 351 because of its absence from the state. In light of this conclusion, we need not address the issue whether section 351 violates the commerce clause of the United States Constitution. Thus, we grant the petition, directing the trial court to sustain the demurrer.
FACTUAL AND PROCEDURAL BACKGROUND
Marquez alleges he was injured on December 4, 1996, as a result of a forklift accident. TCM is alleged to be the manufacturer, designer, and distributor of the forklift.
On December 3, 1997, Marquez filed a personal injury -products liability lawsuit. He named TCM Manufacturing USA, Inc. (TCM USA), rather than its Japanese counterpart, as a Doe defendant. TCM USA successfully moved for summary judgment on the ground that it had no connection with this forklift.
On January 4, 2002, Marquez filed a new action against TCM Manufacturing Japan for negligence, product liability, and breach of warranty. TCM demurred on the ground that the action was barred by the statute of limitations.
Marquez filed an amended pleading prior to the hearing on the demurrer adding a new allegation asserting that TCM was never at any "time mentioned herein . . . present within the State of California" and "never engaged in intrastate or interstate business in California, through any repeated or successive business transactions within the State." He also alleges that "at no time mentioned herein did sell any products within California (or the entire United States) under the terms of an agreement between and TCM Manufacturing USA."
On the other hand, Marquez also alleges that at all times mentioned TCM was in the business of designing, manufacturing, marketing, and distributing forklift vehicles and their component parts, and that it designed, manufactured, assembled, marketed and distributed the forklift that is the subject of this action. TCM is also alleged to be engaged in the trade of mechanical repair and maintenance of forklift vehicles. Marquez charges that TCM held itself out to the public, and to him, to be skillful and diligent in the trade of forklift vehicle design and construction, and that it had an obligation to refrain from placing defective products into the stream of commerce. Finally, it is alleged that TCM impliedly warranted that the forklift vehicle was of merchantable quality, safely designed and/or fit for the purpose for which was designed, installed and intended by Marquez and that he reasonably relied upon these implied warranties.
The trial court overruled the demurrer of both defendants, finding that Bott v. American Hydrocarbon Corporation (5th Cir. 1971) 441 F.2d 896 and Green v. Zissis (1992) 5 Cal.App.4th 1219 applied and controlled. "I believe that I am compelled to follow those decisions and am compelled to follow Dew v. Appleberry [(1979) 23 Cal.3d
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