Rafael v. Superior Court

Opinion

ELKINGTON, J.

The question here is whether, after accrual of a minor’s cause of action for personal injuries, the prospective defendant’s absence from the state during the minor’s minority operated to extend the one-year statute of limitations commencing upon the attainment of his majority, by the total time of such earlier absence.

On a motion of Robert Rafael, petitioner here and defendant below, for summary judgment, the following uncontroverted facts appeared. In the year 1960 during a high school baseball game Rafael was at bat while Vincent B. McLorg, real party in interest here and plaintiff below, was catching. While striking at the ball, Rafael unintentionally struck McLorg in the face with his bat, causing injuries. In 1964 Rafael was absent from the state for the period extending from June 12 through September 1. On December 20, 1966, at the age of 20, McLorg was married, and thus, by virtue of Civil Code section 25, he attained his majority. On February 16, 1968, McLorg filed an action against Rafael based on the injuries suffered by him in 1960.

Rafael contended on his motion for summary judgment that the admitted facts showed McLorg’s cause of action to be barred by the provisions of Code of Civil Procedure sections 340, subdivision 3, and 352, subdivision 1.

[459]

The motion was denied. On petition of Rafael we issued alternative writs of mandate and prohibition directing the superior court to show cause why McLorg’s action should not be dismissed and further proceedings therein stayed.

Code of Civil Procedure section 340, subdivision 3, provides that an action for injury caused by the wrongful or negligent act of another must be commenced within one year of such act.

Code of Civil Procedure section 352, subdivision 1, states that if a person entitled to bring an action be at the time the cause of action accrued, under the age of majority, “the time of such disability is not a part of the time limited for the commencement of the action.”

Code of Civil Procedure section 351 provides that if, after a cause of action accrues against a person, “he departs from the state, the time of his absence is not a part of the time limited for the commencement of the action.”