California Statute of Limitations – Tolled When the Defendant is Out of State? Maybe Not.

Someone commented at a program on the Supreme Court cases last year dealing with the Fair Debt Collection Practices Act (“FDCPA”) that the statute of limitations is tolled when the defendant is out of state.  “Hmm,” I thought, “another thing I didn’t know.”

Sure enough, Section 351 of the California Code of Civil Procedure states:

[i]f, when the cause of action accrues against a person, [the defendant] is out of the State, the action may be commenced with 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 no part of the time limited for the commencement of the action.

As my hobby is to review 9th Circuit cases, I stumbled across Capital Options, LLC v. Goldsmith (In re Capital Options, LLC) (Unpublished) No. 16-60054 (9th Cir. Jan. 2018).  In total dicta, the memorandum says,

Capital argues that because Goldsmith moved from California to Montana, § 351 tolls the SOL unless and until he returns to California.  However, because allowing § 351 to toll the SOL in this case would likely violate the Commerce Clause, Capital has not shown that the Bankruptcy Court’s decision was an abuse of discretion. [emphasis added]

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