California Code of Civil Procedure - CCP § 351 - Extends the Statute of Limitations (or Not!)

If the statute of limitations is blown CCP 351 may (or may not) be a saving statute.

California Code of Civil Procedure (CCP) Section 351 addresses the commencement of legal actions when a person is out of the state. Here’s what it states:

If a cause of action accrues against an individual while they are outside of California, the action may still be commenced within the time limit specified by law after their return to the state.
Similarly, if the person departs from California after the cause of action accrues, the time of their absence is not counted as part of the time limit for initiating the legal action

But is this statute constitutional?

The Ninth Circuit has found that § 351 violates the Commerce Clause when it involves interstate commerce because it “requires a person engaged in interstate commerce outside of California to be in California for the appropriate limitations period in order to avoid the application of the tolling statute.” Abramson v. Brownstein, 897 F.2d 389, 392 (9th Cir. 1990).

“[T]he California statutory scheme forces a nonresident individual engaged in interstate commerce to choose between being present in California for several years or forfeiture of the limitations defense, remaining subject to suit in California in perpetuity. Section 351 imposes a significant burden.” Id.

But what is interstate commerce? If both parties live in California at the time of a car accident and then the offending party leaves the state, is there an interstate commerce impact or is section 351 still valid?

On the other hand in Abramson the Ninth Circuit noted that “the California long arm statute would have permitted service on [the defendant] throughout the limitations period.” Id. at 393.

If the statute of limitations is “blown” in a case, section 351 may (or may not) be a get out of jail free card. However, it is certainly a card worth playing.