APPEAL from a judgment of the Superior Court of Sacramento County, Shelleyanne W. L. Chang, Judge. Affirmed. (Super. Ct. No. 34200800011603CUPAGDS).
The opinion of the court was delivered by: Sims , J.
CERTIFIED FOR PUBLICATION
In this personal injury complaint arising from a 2004 automobile collision, plaintiff Wlodzimierz Jan Litwin appeals from a judgment of dismissal following the sustaining of a demurrer by defendant Estate of Robert Formela, grounded on the statute of limitations (Code Civ. Proc., § 335.1*fn1 ). Plaintiff contends the trial court erred in declining to toll the limitations period pursuant to section 351*fn2 due to the absence from California of Formela, a German citizen/resident who returned to Germany after the California collision. We shall affirm the judgment of dismissal.
On May 22, 2008, plaintiff filed a COMPLAINT FOR PERSONAL INJURIES against Formela, alleging that plaintiff, a Sacramento County resident, sustained injuries in an automobile accident with Formela in San Mateo County on December 11, 2004. The complaint alleged Formela was a citizen and resident of Germany and had been absent from California since December 12, 2004, such that section 351 tolled the limitations period.
Plaintiff served process on the director of the Department of Motor Vehicles (DMV), as authorized by Vehicle Code section 17451, post, but asserted difficulty in locating a correct address for Formela in Germany.
On September 17, 2008, plaintiff filed an amended complaint, alleging Formela was deceased and changing the named defendant to "ESTATE OF ROBERT FORMELA," as authorized by Probate Code sections 550*fn3 et seq. and 9390 (plaintiff who seeks damages beyond insurance limits must file claim against estate before filing lawsuit).
In October 2008, defendant filed a demurrer on the ground the complaint was barred by the statutes of limitations in section 335.1 (two years for personal injury suit) and Probate Code section 551,*fn4 which extends the limitations period for one year if the person against whom the action is brought dies before expiration of the otherwise-applicable limitations period. Defendant pointed out: (1) The two-year limitations period expired in December 2006, long before this action was filed in May 2008, and (2) the complaint did not specify the date of Formela's death but, even assuming he died before expiration of the two-year period so as to extend the limitations period by one year under the Probate Code, plaintiff would have had to file the complaint by December 11, 2007. Thus, the action filed on May 22, 2008, was untimely.
Defendant also argued section 351 did not operate to toll the limitations period during the German citizen's absence from California because (as we discuss post) the Vehicle Code provides that a nonresident, by operating a vehicle in California, appoints the director of the DMV as his agent for service of process, and under Bigelow v. Smik (1970) 6 Cal.App.3d 10 (Bigelow), the tolling provision of section 351 (fn. 2, ante) does not apply.
Plaintiff opposed the demurrer. In addition to arguing the limitations period was tolled due to Formela's absence from California and due to the asserted unavailability of registered mail in Germany, plaintiff asserted new matter outside the scope of the pleadings, e.g., that plaintiff had a previous lawyer who filed a complaint on December 15, 2006 (which was also filed more than two years after the accident) but was unable to find Formela in Germany. Plaintiff's current attorney asserted the previous lawyer's attempt in the first action to serve process on Formela in Germany under the Hague Convention rules was unsuccessful, and at some point it appeared Formela might be in jail, and the first action was apparently dismissed without prejudice.
Defendant replied, arguing plaintiff's new matter was extraneous and outside the scope of the pleading and in any event failed to show diligence in attempting to find Formela or use alternative methods of service by personal service or publication.*fn5
At the hearing, plaintiff's attorney acknowledged that property damage to plaintiff's car was previously paid through the insurance Formela had on the rental car he was driving at the time of the accident. The trial court disagreed with plaintiff's assertion that he had shown impossibility of personal service on Formela in the first action.
The trial court sustained the demurrer without leave to amend and, on December 24, 2008, entered a judgment of dismissal, citing the holding of Bigelow, ...