Hirsch v. Blish

• Decision Date: 22 December 1977
• Citation: 76 Cal.App.3d 163,142 Cal.Rptr. 646
• Court: California Court of Appeals Court of Appeals
• Parties: Paul HIRSCH, Plaintiff and Appellant, v. Donald BLISH, Defendant and Respondent. Civ. 50721.

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.

George T. Woods, Los Angeles, for plaintiff and appellant.

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 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 applicable and that the case at bench is controlled by Vehicle Code section 17463.

That statute provides: "Notwithstanding any provisions of Section 351 of the Code of Civil Procedure to the contrary, when summons may be personally served upon a person as provided in Sections 17459 and 17460 (of the Vehicle Code), the time of his absence from this State is part of the time limited for the commencement of the action described in those sections, except when he is out of this State and cannot be located through the exercise of reasonable diligence . . . ."

Vehicle Code section 17459 provides for service upon a defendant " within or without this state" in any action arising in California out of the ownership or operation of a motor vehicle registered in California by a resident of the state. Vehicle Code section 17460 provides for a similar method of service upon a California licensed driver for a cause of action arising in California out of the operation of a motor vehicle.

Here Blish was a California licensed driver operating an automobile registered in this state at the time of the accident. Hirsch's cause of action arises out of Blish's operation of the car. Hence Blish was at all times amenable to personal service within or without the state by reason of Vehicle Code sections 17459 and 17460. His two-week absence from California thus did not toll the one year statute of limitations unless the specific tolling provision of Vehicle Code section 17463 applies.

The special tolling provision is applicable "when (the defendant) cannot be located through the exercise of reasonable diligence." If that provision imposes an obligation upon a plaintiff relying upon it to take action to attempt to locate an absent defendant, the trial court properly determined that the tolling provision is inapplicable. The lack of a triable issue of fact may be established by inference where the inference is the only reasonable one that may be drawn from the evidence presented for and against the motion (4 Witkin, Cal.Procedure (2d ed. 1977 Supp.) Proceedings Without Trial, § 196A, subd. (2)). Here the total failure of contact of anyone seeking Blish with Blish's neighbors, business associates, and relatives, and the failure of any notice directed to his long-time place of residence supports only one reasonable inference no one was diligently seeking Blish's whereabouts during...