Tolling Statute Applies to Absences, Not Non-Residency

Monday, January 27, 2020

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Court of Appeal:

Tolling Statute Applies to Absences, Not Non-Residency

Edmon Says Woman Who Claims Wayne Rogers Was Father of Her Child Failed to Show That Actor Was Out of State Sufficient Amount of Time That 2013 Action Was Timely

By a MetNews Staff Writer

WAYNE ROGERS

Deceased actor

MELINDA NAUD

Former actress

A woman who claims that the late actor Wayne Rogers fathered her child has failed to persuade the Court of Appeal for this district that her action to enforce an alleged oral agreement to provide support was not time barred because the “M*A*S*H” co-star resided in Florida, tolling the statute of limitation.

Presiding Justice Lee Edmon declared, in an unpublished opinion filed Thursday, that Code of Civil Procedure §351 tolls statutes of limitations during a defendant’s absence from the state, not non-residency, and that the plaintiff failed to establish periods of absences.

The plaintiff is Melinda Naud, a former actress who from 1978-85 portrayed the “Fonz’s” girlfriend on the sitcom, “Happy Days.”

On Dec. 14, 1985, Naud gave birth to a boy; on May 17, 1993, she and Rogers entered into a written agreement, under which paternity was not admitted, providing for support of the child; later, according to her allegation, there was an oral agreement to supply additional support and a promise to leave “something of significant value” to her and the child.

In 2006, Naud received a letter from Roger’s attorney, Melvin Goldsman, disclaiming any commitments by Rogers outside the written agreement. A 2008 letter from Goldsman reiterated that position.

$3.4 Million Suit

Naud brought a $3.4 million action against Rogers on Aug. 16, 2013, setting forth various causes of action. Her suit came after the son, Luigi Calabrese, underwent surgeries in connection with a serious heart condition, and Rogers allegedly broke off any contact with Naud.

Rogers—best known for his portrayal of “Trapper John” McIntyre on the first three seasons of “M*A*S*H” in 1972–1975, died Dec. 31, 2015, at age 82. The litigation continued, with William M. Rogers IV assuming the role of the defendant, as the personal representative of his father (whose full name was William Wayne McMillan Rogers III).

Then-Los Angeles Superior Court Judge Michael J. Raphael (now a justice of Div. Two of the Fourth District Court of Appeal) on May 25, 2018 granted summary judgment in favor of the defendant, proclaiming each of the causes of action to be time-barred. Goldsman’s letters, he found, starting the clock ticking.

On appeal, Naud relied upon §351, which provides (with emphasis added by Edmon):

“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.”

Applicability Not Shown

Edmon wrote:

“Even assuming that Rogers was a Florida resident as of 2002, Naud has not developed a record to establish how section 351 would apply to this fact situation. As Rogers argues, section 351 does not address a defendant’s place of residence. Rather, the statute refers to a defendant’s absence from California.”

She continued:

“Obviously, someone who does not reside in California may nonetheless spend substantial periods of time in this state, during which time there would be no tolling under section 351. Indeed, Naud pled in the fourth amended complaint that Rogers ‘has owned and managed a business management company, Wayne Rogers & Company, in Los Angeles, California for over 40 years,’ which would have given him reason to spend time in California. Naud also pled that Rogers is ‘an American film and television star,’ which would have given him additional reason to spend time in this state. Consequently, as Rogers argues on appeal, a mere showing by Naud that Rogers was a Florida resident as of 2002 does not begin to establish the dates that Rogers was either present in, or absent from, California in the subsequent years. Simply stated, Naud failed to develop a record as to the dates that Rogers was absent from this state.”

The case is Naud v. Rogers, B290633.

Attorneys on appeal were Tiffany Schneider of Cliff Dean Schneider, for Naud, and Bryan J. Freeman and Steven E. Formaker of Freedman + Taitelman, for Rogers.

The complaint in the case said of Rogers, in addition to playing the role of Trapper John, was “also a highly successful business man, financial advisor, and commentator of Fox,” adding:

“Rogers is currently a regular panel member on the Fox News investment television program ‘Cashin’’ and has owned and managed a business management company, Wayne Rogers & Company, in Los Angeles, California for over 40 years. Mr. Rogers has been labeled a financial genius and ‘guru’ to the rich and famous.”

Rogers left “M*A*S*H” in a contract dispute. He portrayed a private detective, Jake Axminster, in “City of Angels,” a 1976 series set in Los Angeles in the 1930s during the administration of Mayor Frank Shaw when corruption reigned.