Hirsch v. Blish

CourtCalifornia Court of Appeals
Writing for the CourtTHOMPSON; WOOD, P. J., and LILLIE
Citation76 Cal.App.3d 163,142 Cal.Rptr. 646
PartiesPaul HIRSCH, Plaintiff and Appellant, v. Donald BLISH, Defendant and Respondent. Civ. 50721.
Decision Date22 December 1977

Page 646

142 Cal.Rptr. 646
76 Cal.App.3d 163
Paul HIRSCH, Plaintiff and Appellant,
v.
Donald BLISH, Defendant and Respondent.
Civ. 50721.
Court of Appeal, Second District, Division 1, California.
Dec. 22, 1977.
Hearing Denied Feb. 16, 1978.

[76 Cal.App.3d 164] George T. Woods, Los Angeles, for plaintiff and appellant.

Page 647

Gilbert, Kelly, Crowley & Jennett, and Patrick A. Mesisca, Jr., Los Angeles, for defendant and respondent.

THOMPSON, Associate Justice.

This is an appeal from a defendant's summary judgment granted on the theory that plaintiff's cause of action is barred by the statute of limitations. Concluding that, despite defendant's absence from the State of California for a period of about two weeks, Vehicle Code section 17463 does not toll the statute, we affirm the judgment.

As we must in dealing with an appeal from a summary judgment, we construe the moving party's declarations strictly and those of the resisting party liberally to determine whether there are triable issues of fact. We recite the record in that light.

On January 20, 1974, plaintiff Paul Hirsch was injured in an automobile accident by a car driven by defendant Donald Blish. Blish was a California licensed driver, and the automobile involved in the accident was owned by him and registered in this state. On January 23, 1975, one year and three days after the accident, Hirsch filed his complaint for property damage and personal injuries resulting from the [76 Cal.App.3d 165] accident. Blish answered the complaint, asserting the affirmative defense of the one year statute of limitations contained in subdivision 3 of Code of Civil Procedure section 340.

The claim for property damage was settled and the cause of action seeking that item was dismissed by Hirsch. Blish moved for summary judgment on Hirsch's cause of action for personal injuries. Declarations in support of and opposition to the motion establish that Blish was present in California for the period from the date of the accident until the complaint was filed with the exception of a two-week period when he was absent from the state while driving to and in St. Louis on vacation. Blish, a long-time resident of California and occupant of a home owned by him in Los Angeles since 1970, had notified a neighbor, co-workers, his mother-in-law, and his wife's daughter of his intended destination with no suggestion of confidentiality. He made no advance reservations for his trip but upon arrival in St. Louis, after three days of driving, notified his wife's daughter of the hotel in which Blish and his wife were staying.

No one contacted Blish's neighbor, co-workers, mother-in-law, or his wife's daughter seeking Blish's whereabouts in the two-week period he was absent from California, and no one left at the Blish home any notification that he was being sought for any purpose.

Over Hirsch's argument that the statute of limitations was tolled while Blish was on the road and could not be located while going to and coming from St. Louis, the trial court determined that the declarations established the bar of the statute of limitations as a matter of law. It granted the Blish motion for summary judgment, and this appeal followed.

The parties agree that the one year statute of limitations applies to the case at bench. They agree also that the general tolling provisions for absence from the state contained in Code of Civil Procedure section 351 are not...

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9 practice notes
  • Murillo v. Rite Stuff Foods, Inc., No. B114877
    • United States
    • California Court of Appeals
    • 30 Junio 1998
    ...May 23, 1989; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741; Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646.) The court has no power in a summary proceeding to weigh one inference against another or against other evidence......
  • Taylor v. Fields
    • United States
    • California Court of Appeals
    • 11 Marzo 1986
    ...where the inference is the only reasonable one that can be drawn from the evidence for and against the motion. (Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. A defendant " 'must conclusively negate a necessary element of the plaintiff's case or establish a complete defense an......
  • Sanchez v. Swinerton & Walberg Co., No. B097531
    • United States
    • California Court of Appeals
    • 27 Junio 1996
    ...May 23, 1989; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741; Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646.) The court has no power in a summary proceeding to weigh one inference against [47 Cal.App.4th 1466] another or ......
  • Pieper v. Commercial Underwriters Ins. Co., No. B106201
    • United States
    • California Court of Appeals
    • 5 Diciembre 1997
    ...23, 1989; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741[ ]; Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646[ ].) The court has no power in a summary proceeding to weigh one inference against another or against other eviden......
  • Request a trial to view additional results
9 cases
  • Murillo v. Rite Stuff Foods, Inc., No. B114877
    • United States
    • California Court of Appeals
    • 30 Junio 1998
    ...May 23, 1989; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741; Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646.) The court has no power in a summary proceeding to weigh one inference against another or against other evidence......
  • Taylor v. Fields
    • United States
    • California Court of Appeals
    • 11 Marzo 1986
    ...where the inference is the only reasonable one that can be drawn from the evidence for and against the motion. (Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. A defendant " 'must conclusively negate a necessary element of the plaintiff's case or establish a complete defense an......
  • Sanchez v. Swinerton & Walberg Co., No. B097531
    • United States
    • California Court of Appeals
    • 27 Junio 1996
    ...May 23, 1989; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741; Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646.) The court has no power in a summary proceeding to weigh one inference against [47 Cal.App.4th 1466] another or ......
  • Pieper v. Commercial Underwriters Ins. Co., No. B106201
    • United States
    • California Court of Appeals
    • 5 Diciembre 1997
    ...23, 1989; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741[ ]; Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166, 142 Cal.Rptr. 646[ ].) The court has no power in a summary proceeding to weigh one inference against another or against other eviden......
  • Request a trial to view additional results

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