Filet Menu, Inc. v. Cheng

38 Citing cases

  1. Heritage Marketing and Ins. Services, Inc. v. Chrustawka

    160 Cal.App.4th 754 (Cal. Ct. App. 2008)   Cited 26 times
    Holding that section 351's tolling provision violates the Commerce Clause as applied to defendants who move out of the state and establish a permanent residence in another state

    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.)

  2. Arrow Highway Steel, Inc. v. Dubin

    56 Cal.App.5th 876 (Cal. Ct. App. 2020)   Cited 8 times
    In Arrow, the court applied the analytical framework set out in Bendix in three steps, analyzing first whether the out-of-state defendant was engaged in interstate commerce, second whether section 351 discriminates against interstate commerce in purpose or practical effect, and third whether section 351 places burdens on interstate commerce that are excessive in relation to its putative local benefits.

    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.

  3. Sui v. Price

    196 Cal.App.4th 933 (Cal. Ct. App. 2011)

    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.]

  4. McLaughlin v. Machen

    No. H045869 (Cal. Ct. App. May. 28, 2021)

    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.

  5. Shtofman v. Ivoko

    No. B295469 (Cal. Ct. App. Apr. 28, 2021)

    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.

  6. Ibanez v. Performance Air Serv., Inc.

    No. H044826 (Cal. Ct. App. Aug. 5, 2019)

    [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.

  7. Newell v. Abouelmagd

    G053785 (Cal. Ct. App. Jan. 17, 2018)

    ) -------- 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.

  8. Yun v. Jpmorgan Chase Bank, N.A.

    No. G049770 (Cal. Ct. App. Aug. 3, 2015)

    "'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.

  9. Cardoni v. Wells Fargo Bank N.A.

    No. D066351 (Cal. Ct. App. Mar. 26, 2015)   Cited 1 times
    Requiring plaintiff to prove the defendant's "conduct is tethered to an underlying constitutional, statutory or regulatory provision, or that it threatens an incipient violation of an antitrust law, or violates the policy or spirit of an antitrust law" for an unfair competition claim

    " '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.

  10. Heurlin v. CitiMortgage Inc.

    No. G048922 (Cal. Ct. App. Jan. 9, 2015)

    "'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.