Mounts v. Uyeda, A047385

• Decision Date: 30 January 1991
• Docket Number: No. A047385,A047385
• Citation: 277 Cal.Rptr. 730,227 Cal.App.3d 111
• Court: California Court of Appeals Court of Appeals
• Parties: Lisa MOUNTS, Plaintiff and Appellant, v. Neil UYEDA, Defendant and Respondent.

Page 730

277 Cal.Rptr. 730

227 Cal.App.3d 111

Lisa MOUNTS, Plaintiff and Appellant, v. Neil UYEDA, Defendant and Respondent.

No. A047385.

Court of Appeal, First District, Division 5, California.

Jan. 30, 1991.

[227 Cal.App.3d 114] John A. Shepardson, Los Gatos, for plaintiff and appellant Lisa Mounts.

Richard G. Grotch, Coddington, Hicks & Danforth, P.C., Redwood City, for defendant and respondent Neil Uyeda.

HANING, Associate Justice.

Plaintiff/appellant Lisa Mounts appeals a summary judgment in favor of defendant/respondent Neil Uyeda in appellant's personal injury action. She contends the trial court erred in ruling her action was barred by the statute of limitations. We granted appellant's rehearing to consider issues raised in part II.

FACTS AND PROCEDURAL BACKGROUND

On January 31, 1989, appellant filed her complaint against respondent for infliction of emotional distress, alleging that on January 30, 1988, she was driving on Highway 101 behind respondent, who negligently and/or intentionally waved or pointed a gun at her in a threatening manner, as a result of which she allegedly suffered severe emotional distress and resultant damages.

Respondent moved for summary judgment on the ground that appellant's complaint was not filed within one year of the incident, as required by Code of Civil Procedure section 340.

Appellant opposed the motion on the basis of Code of Civil Procedure section 351, which tolls the statute of limitations during the period the defendant is out of the state. Respondent admitted he had been absent from the state for four days in July 1988, but argued that Vehicle Code section 17463 ¹ exempts causes of action arising out of the operation of motor vehicles from the tolling provisions of Code of Civil Procedure section 351.

DISCUSSION

I

The rules for summary judgment are well established and require no exhaustive repetition. (See, e.g., Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 808, 117 Cal.Rptr. 423, 528 P.2d 31; 6 Witkin, Cal.Procedure (3d ed. 1985) Proceedings Without Trial, § 274 et seq.) When there is no factual dispute, our function is the same as the trial court: to determine whether the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).)

Appellant concedes the one-year statute of limitations but contends that, pursuant to Code of Civil Procedure section 351, respondent's four-day absence from the state extended the filing time by four days until February 3, 1989, and thus her complaint filed on January 31 was timely. Code of Civil Procedure 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." Accordingly, a defendant's absence from the state during the limitations period, even if he or she is amenable to substituted service, tolls the limitations period for the length of the absence. (Dew v. Appleberry (1979) 23 Cal.3d 630, 632, 153 Cal.Rptr. 219, 591 P.2d 509; Cardoso v. American Medical Systems, Inc. (1986) 183 Cal.App.3d 994, 998, 228 Cal.Rptr. 627.) Consequently, barring any exceptions to Code of Civil Procedure section 351, appellant's complaint was timely filed.

Respondent argues that section 17463 establishes an exception in this case. It 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, 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...." Sections 17459 and 17460 provide that acceptance by a California resident of a certificate of ownership or registration, or a driver's license, constitutes consent by that person that personal service in an action arising out of the operation or ownership of a motor vehicle in California may be made within or without the state, regardless of a subsequent change of residency. ²

The dispositive issue is whether appellant's cause of action arises out of respondent's operation of his automobile. Neither party has identified, nor have we located, any California cases in which sections 17459 and 17460 have been applied to circumstances other than traditional automobile accidents, in which there is no question that the injury was the direct result of operation of the vehicle. Although the broad legislative purpose of these statutes has been declared to be the protection of injured persons by assuring that potential defendants cannot avoid the state's jurisdiction (see Abrams v. Stone (1957) 154 Cal.App.2d 33, 41, 315 P.2d 453), none of the cases involving sections 17459 or 17460 discuss the nexus between the injury and the operation of the vehicle.

To support their respective arguments concerning whether the injury alleged here arose out of the operation of a motor vehicle, both parties rely on cases such as State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 and National American Ins. Co. v. Insurance Co. of North America (1977) 74 Cal.App.3d 565, 140 Cal.Rptr. 828, in which the principal dispute was over insurance coverage. However, the coverage issue prevalent throughout such cases is not generally concerned with whether the plaintiff's injury arose out of the "operation" of a vehicle, but instead focuses on the scope of the liability insurance coverage mandated by statute for vehicular "use." Both Insurance Code section 11580.1 and Vehicle Code section 16451 require California automobile liability policies to cover the insured and any permissive users against loss from the liability imposed by law for damages arising out of "ownership, maintenance or use" of the insured vehicle. But the Legislature has distinguished between the terms "use" and "operation" or their derivatives, as those terms in the Vehicle Code are applied to motor vehicles. Although the operation of a motor vehicle clearly involves its use, a vehicle may be in "use" for purposes of the liability insurance required by section 16451 without actually being in "operation." (Glens Falls Ins. Co. v. Consolidated Freightways (1966) 242 Cal.App.2d 774, 782, 51 Cal.Rptr. 789.)

In Glens Falls a trucking company employee drove to a supplier to pick up a load of concrete beams. He loaded the beams with the assistance of the supplier's employee, who was driving the supplier's forklift. The trucker was injured when struck on the head by a steel hook suspended from the forklift over the bed of the truck. At the time of the injury the trucking company was an authorized self-insurer under section 16055. The liability carrier for the supplier sought declaratory relief to establish that the forklift driver was a permissive user of the trucking company's truck, and thereby covered by the trucking company's "self-insurance." The supplier's carrier based its contention on the fact that loading and unloading is considered to be "use" of a vehicle under section 16451.

Glens Falls observed that although section 16451 "reflects a legislative purpose of broadening insurance coverage so as to protect those injured by the negligence of any person using the motor vehicle with the owner's consent," (Glens Falls Ins. Co. v. Consolidated Freightways, supra, 242 Cal.App.2d at p. 782, 51 Cal.Rptr. 789), it does not create any independent legal liability for the negligent operation of a motor vehicle. It "merely prescribes the necessary terms and provisions of an insurance policy furnished as proof of ability to respond in damages and thus constituting one of the several methods of establishing exemption from the requirement of depositing security to satisfy any final judgment or judgments for bodily injury or property damage ( § 16057)." (Ibid.) On the other hand, the term "use" in section 16451 must be given broad and comprehensive meaning to effect the state's purpose of affording protection to " 'that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injury through the negligent use of those highways by others.' [Citations.]" (Ibid.) Consequently, acts encompassed by the "use" mandate of section 16451 are not necessarily those arising out of or related to the "operation" of a vehicle, but can involve conduct in which the motor vehicle itself does not play any part, such as loading and unloading. (Id., at p. 783, 51 Cal.Rptr. 789.) "Use" is not limited to the operational activity of the motor vehicle. (Id., at p. 784, 51 Cal.Rptr. 789.)

However,the only method of proof of financial responsibility required by the Financial Responsibility Act (FRA) ( § 16000 et seq.) to which "use" pertains is an automobile liability insurance policy. The Vehicle Code does not require that the other methods of proof of financial responsibility, including certificates of self-insurance, incorporate or embrace the provisions required of insurance policies under section 16451. Glens Falls thus concluded that no liability or responsibility for the forklift driver's negligence could be imposed upon the trucking company by virtue of section 16451. "Any liability of [the trucking company] for [the forklift driver's] acts must be that based on section 17150 because of the negligence of [the forklift driver] in the operation of the truck. [L]oading activities such as those engaged in by [the forklift driver do not] constitute an operation of the truck.... Nor do we think such a claim could be made under the instant facts. Loading a truck is not operating it, as any teamster knows." (Glens Falls Ins. Co. v....