LITWIN v. FORMELA













Filed 7/8/10









CERTIFIED
FOR PUBLICATION







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

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WLODZIMIERZ JAN LITWIN, Plaintiff and Appellant, v. ESTATE OF ROBERT FORMELA, Defendant and Respondent.

C061084 (Super. Ct. No. 34200800011603CUPAGDS)

APPEAL
from a judgment of the Superior Court
of Sacramento
County, Shelleyanne W. L. Chang, Judge. Affirmed.



Dreyer
Babich Buccola Callaham & Wood, Hank G. Greenblatt and Jason J. Sigel for
Plaintiff and Appellant.



Donahue
Bates Blakemore & Mackey, Stephen J. Mackey and David E. Erickson for
Defendant and Respondent.













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[1]). Plaintiff contends the trial court erred in
declining to toll the limitations period pursuant to section 351[2]
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.

BACKGROUND

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 â€