The statute has also been held to "impermissibly burden[] interstate commerce with respect to [California] residents who travel in the course of interstate commerce." ( Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1283 [ 84 Cal.Rptr.2d 384] ( Filet Menu).) As Filet Menu explained, section 351 violates the commerce clause to the extent it "imposes a special burden on residents who travel in the course of interstate commerce that is not shared by residents involved solely in `local business and trade. . . .' [Citation.]" ( Filet Menu, supra, 71 Cal.App.4th at pp. 1282-1283.)
This significantly burdens interstate commerce if the defendant who is forced to make this choice has "travel[ed]" out of state to "facilitat[e] ... interstate commerce" because, in that situation, section 351 creates the incentive for the out-of-state defendant—and his commercial activity—to remain in state rather than out of state. ( Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1283-1284, 84 Cal.Rptr.2d 384 ( Filet Menu ); Heritage , at p. 760, 73 Cal.Rptr.3d 126.) This is certainly the case here, where Dubin has set up an entire new interstate—and international—business in Nevada.
Standard of Review "'Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court's discretion, an appellate court employs two separate standards of review on appeal. [Citation.] . . . Appellate courts first review the complaint de novo to determine whether or not the . . . complaint alleges facts sufficient to state a cause of action under any legal theory, [citation], or in other words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of law. '"( Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279 [ 84 Cal.Rptr.2d 384] ( Filet).) "'A demurrer tests the pleading alone, and not the evidence or the facts alleged.' [Citation.] For that reason, we 'assume the truth of the complaint's properly pleaded or implied factual allegations.' [Citation.]
Plaintiffs rely on several decisions in which courts have upheld the application of section 351 in circumstances plaintiffs argue are analogous to those here. They point to Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1284 (Filet Menu), Pratali v. Gates (1992) 4 Cal.App.4th 632, 643 (Pratali), and Kohan v. Cohan (1988) 204 Cal.App.3d 915, 924 (Kohan). Plaintiffs also attempt to distinguish cases finding the application of section 351 violative of the dormant Commerce Clause, like Heritage, supra, 160 Cal.App.4th at page 764.
In her supplemental reply to Shtofman's opposition, Ivoko for the first time argued "Shtofman failed to create a triable issue with regards to a single day of Ivoko's absence from California as justifying tolling." Ivoko owned businesses in California and Illinois, and under Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276 (Filet Menu), her travel was to facilitate interstate commerce and could not be counted for tolling. Filet Menu held section 351, which allows tolling when a defendant is out of state, violated the Commerce Clause by placing a special burden on California residents engaged in interstate commerce that was not shared by residents engaged only in local business.
[Citations.]" (Pratali, supra,4 Cal.App.4th at p. 643; accord, Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 122 [tolling under section 351 did not violate the commerce clause where the personal injury claim of emotional distress did not involve interstate commerce].) Where the parties undisputedly engaged in interstate commerce—sale of restaurant supplies by the plaintiff, Filet Menu, Inc., to the defendant restaurant owners who refused to pay for the supplies—the issue was whether the absences of one defendant, Cheng, from California tolled the statutes of limitations for contract actions (§§ 337, subd. (1), 339, subd. (1)) under section 351. (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1280-1281 (Filet Menu).) The appellate court determined that the commerce clause is not implicated where the defendant's travel outside California is unrelated to interstate commerce.
) -------- Application of section 351 in a different factual scenario occurred in Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276 (Filet Menu). Claiming a breach of contract related to the sale of restaurant related items, a California resident plaintiff sued the defendants, one of which was a California resident.
"'Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court's discretion, an appellate court employs two separate standards of review on appeal.'" (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279.) First, we review the complaint de novo to determine whether it alleges sufficient facts to state a cause of action under any legal theory.
" 'Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court's discretion, an appellate court employs two separate standards of review on appeal.' " (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279.) First, we review the complaint de novo to determine whether it alleges sufficient facts to state a cause of action under any legal theory.
"'Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court's discretion, an appellate court employs two separate standards of review on appeal.'" (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279.) First, we review the complaint de novo to determine whether it alleges sufficient facts to state a cause of action under any legal theory.