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TCM Corp. v. Superior Court of the County of San Bernardino12/17/2003
630 (Dew)] regardless of what my assessment of the judicial absurdity or statutory absurdity might be."
DISCUSSION
TCM contends the tolling provision of section 351 does not apply in this situation because, based on Marquez's allegations, it was at all times engaged in commerce, was always amenable to service under the California long-arm statute, and thus, not absent from the state within the meaning of the statute. Furthermore, TCM contends tolling the statute of limitations under section 351 in this situation violates the commerce clause of the United States Constitution. Because Marquez does not dispute that his claims are time-barred absent tolling, we must determine from facts alleged in the complaint whether section 351 applies and, if so, whether it would therefore violate the commerce clause.
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."
Section 351 has been held not to apply in situations where the Legislature has provided for substituted or constructive service. "Thus, the tolling statute does not apply, for example, to (1) foreign corporations, [citation]; (2) California limited partnerships when the sole general partner is absent from the state, [citation]; and (3) nonresident motorists, [citation]." (Abramson v. Brownstein (9th Cir. 1990) 897 F.2d 389, 393, fn. 6.)
If a foreign corporation does business in California, it is amenable to service by serving the Secretary of State, and it is not considered absent from the state for the purposes of section 351. (Loope v. Greyhound Lines, Inc. (1952) 114 Cal.App.2d 611 (Loope).) Amenability to service of process is not dependent upon registration to do business under California law (Raynolds v. Volkswagenwerk Aktiengesellschaft (1969) 275 Cal.App.2d 997, 1001), but it does refer to the state's authority to exercise personal jurisdiction. Thus, a foreign corporation doing business in the state is amenable to the service of process, but one lacking minimum contacts is not doing business within the meaning of the statute permitting service on foreign corporations. (Watts v. Crawford (1995) 10 Cal.4th 743, 756.)
"Therefore, under Loope and its progeny, the availability of substituted service of process upon a foreign corporation renders the tolling provisions of section 351 inapplicable. To rule otherwise would result in the anomalous situation that a statute of limitations would never run in actions filed against foreign corporations. This would be contrary to the avowed purpose of such statutes to prevent stale claims." (Cardoso v. American Medical Systems, Inc. (1986) 183 Cal.App.3d 994 at p. 999 (Cardoso).)
The trial court's belief that it was compelled by the decision in Dew, supra, 23 Cal.3d 630 to find that the statute of limitations was tolled here was erroneous. The Supreme Court in Dew held that section 351 tolls the statute of limitations when an individual defendant is physically absent from the state, concluding that that individual's amenability to service of process was irrelevant under the tolling provisions. The court observed that "section 351 . . . rationally alleviates any hardship that would result by compelling plaintiff to pursue defendant out of state." (Dew, supra, at p. 637.)
The critical fact in Dew was that the defendant was an individual, not a corporation. Dew does not undercut the Loope line of cases, and in fact cited Loope a
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