Metropolitan News-Enterprise


Tuesday, August 6, 2019


Page 1


Court of Appeal:

Commerce Clause Not Violated by Tolling Time Bar When Defendant Is Out of State

Opinion Says Defendant Left California for Reasons Unrelated to Commerce


By a MetNews Staff Writer


The Sixth District Court of Appeal declared yesterday that the Commerce Clause of the U.S. Constitution is not offended by a tolling of the statute of limitation for a personal injury while a defendant was out of the state.

Acting Presiding Justice Franklin D. Elia wrote the unpublished opinion which reverses a judgment of dismissal of an action by Carlos Ibanez against his former co-worker, Brian Pacheco. The judgment followed Santa Clara Superior Court Judge Maureen Folan sustainingPacheco’s demurrer without leave to amend, applying the two-year statute of limitation applicable to personal injury actions, Code of Civil Procedure §335.1.

The judgment was affirmed as to the employer, Performance Air Service, Inc.

Supreme Court Opinion

Folan relied on the U.S. Supreme Court’s 1988 opinion in Bendix Autolite Corp. v. Midwesco Enterprises, Inc. There, an Ohio tolling statute was found constitutionally impermissible. The high court said:

“The Ohio statute of limitations is tolled only for those foreign corporations that do not subject themselves to the general jurisdiction of Ohio courts….In this manner the Ohio statute imposes a greater burden on out-of-state companies than it does on Ohio companies, subjecting the activities of foreign and domestic corporations to inconsistent regulations.”

At issue in the case decided yesterday was whether Foran should have applied Code of Civil Procedure §351 which says, as it has since its enactment in 1872:

“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.”

2008 California Decision

Foran cited the Court of Appeal’s 2008 decision in Heritage Marketing and Insurance Services, Inc. v. Chrustawka in determining that “section 351 does not apply to resident defendants who are permanently absent from California because it violates the Commerce Clause.”

In Heritage, the defendants moved from California to Texas for the purpose of competing from there with their former employer. Then-Justice William F. Rylaarsdam of the Fourth District’s Div. Four (now retired) said:

“Section 351 penalizes people who move out of state by imposing a longer statute of limitations on them than on those who remain in the state. The commerce clause protects persons from such restraints on their movements across state lines….By creating disincentives to travel across state lines and imposing costs on those who wish to do so, the statute prevents or limits the exercise of the right to freedom of movement. Applying section 351 under the facts of this case would impose an impermissible burden on interstate commerce as it would force defendants to choose between remaining residents of California until the limitations periods expired or moving out of state and forfeiting the limitations defense.”

Draws Distinction

But in that case, Elia said in yesterday’s decision, the defendants “moved to another state for reasons of commerce.” Pacheco, he noted, did not. 

He wrote:

“In the present case, the allegations of the second amended complaint do not demonstrate that defendant Pacheco has engaged in commerce within the meaning of the commerce clause, either in his travel to Massachusetts or as a resident of Massachusetts. Pacheco is alleged to have relocated to Massachusetts for the purpose of having his family members care for him due to serious injuries that have rendered him unable to care for himself. It is further alleged that Pacheco ‘has not crossed any state lines for the purpose of working, earning money, making investment decisions, or being involved in any type of commerce....’

“Accordingly, there are no allegations in the second amended complaint from which it could be reasonably inferred that Pacheco was an out-of-state person involved in either the channels or instrumentalities of interstate commerce, persons or things in interstate commerce, or economic activities that ‘substantially affect’ interstate commerce.”

The case is Ibanez v. Performance Air Service, Inc., H044826.


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