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Court of Appeal, Fourth District, Division 2, California.

BIG BEAR MUNICIPAL WATER DISTRICT, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SAN BERNARDINO, Respondent; CITY OF REDLANDS and Bear Valley Mutual Water Company, Real Parties in Interest.

Civ. 9401.

Decided: February 20, 1969

Alexander R. Tobin, Upland, for petitioner. Taylor & Smith and Edward F. Taylor, San Bernardino, for City of Redlands, real party in interest. Surr & Hellyer, John B. Surr and Robert J. Bierschbach, San Bernardino, for Bear Valley Mutual Water Co., real party in interest.


This is a companion case to 75 Cal.Rptr. 580, decided this day, wherein petitioner sought a writ of mandate to compel the superior court to dismiss an eminent domain action instituted by San Bernardino Valley Municipal Water District (Valley District.) (San Bernardino County Superior Court No. 109766.) In the present proceedings petitioner Big Bear Municipal Water District (Big Bear District) seeks a writ of mandate to compel the dismissal of an eminet domain action instituted by the City of Redlands (City of Redlands v. Bear Valley Mutual Water Company, Superior Court No. 114401) on the ground that summons was neither issued in one year nor return made within three years.

The following is a chronology of the events leading to the present petition for writ of mandate:

On March 28, 1963, Redlands filed an action in eminent domain to condemn certain properties owned by the Bear Valley Mutual Water Company (Water Company). The property sought to be condemned included the same parcels sought to be condemned by Valley District as well as certain additional parcels, including Big Bear Lake.

On December 17, 1963, and again on December 15, 1965, Redlands and Water Company filed stipulations for partial dismissal of the action.

On June 30, 1966, Big Bear District was permitted to intervene in the Redlands action for the limited purpose of moving to dismiss pursuant to section 581a, Code of Civil Procedure.1

On July 7, 1966, Water Company filed a general demurrer to Redlands' complaint.

On July 14, 1966, Redlands and Water Company entered into and filed a written stipulation waiving the provisions of section 581a, and agreeing that the time for issuance and return of summons be extended to December 31, 1966. Water Company's demurrer was overruled and on August 12, 1966, it filed its answer to the complaint in eminent domain.

Meanwhile Big Bear District filed an amended notice of motion to dismiss by requesting the court to exercise its inherent power to dismiss for Redland's alleged failure to prosecute its action with due diligence.

The motion to dismiss was heard and submitted on August 12, 1966, and was subsequently denied.

Mandamus is an appropriate remedy to obtain review of an order denying a motion to dismiss. (Perry v. Magneson, 207 Cal 617, 620, 279 P. 650; Coates Capitol Corp. v. Superior Court, 251 Cal.App.2d 125, 127, 59 Cal.Rptr. 231; Rio Del Mar Country Club v. Superior Court, 84 Cal.App.2d 214, 217, 190 P.2d 295.) Petitioner contends that it was a mandatory duty of the trial court to dismiss the action because summons was not issued within one year or return made within three years as required by section 581a. The real parties in interest contend that the mandatory dismissal provision of section 581a was inoperative because (1) the parties filed a written stipulation extending time, and (2) the written stipulations for partial dismissal of the action constituted a general appearance by the Water Company within the statutory period.

Section 581a provides in relevant part that all actions ‘* * * must be dismissed by the court * * *, on its own motion, or on the motion of any party interested therein, * * * unless summons shall have issued within one year, and all such actions must be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended. But all such actions may be prosecuted, if general appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served; * * *.’

It has been held that the provisions of section 581a are mandatory and ‘jurisdictional’ and that in cases coming within its provisions, the court has no authority except to order dismissal. (Black Bros. Co. v. Superior Court, 265 A.C.A. 548, 552, 71 Cal.Rptr. 344; 2 Witkin, California Procedure, 1667.) The section is applicable to eminent domain proceedings. (Dresser v. Superior Court, 231 Cal.App.2d 68, 78, 41 Cal.Rptr. 473.)

In the case under review, however, the written stipulation extending time rendered the mandatory dismissal provisions of section 581a inoperative. The fact that the stipulation was filed after the expiration of the statutory period did not render it ineffective. (See Miles & Sons, Inc. v. Superior Court, 181 Cal.App.2d 151, 153, 5 Cal.Rptr. 73.) It has been held that under section 583 a stipulation extending time may be executed and filed after the expiration of the five year period. (Lewis v. Neblett, 48 Cal.2d 564, 568, 311 P.2d 489; Rio Vista Min. Co. v. Superior Court, 187 Cal. 1, 5, 200 P. 616; Estate of Thatcher, 120 Cal.App.2d 811, 814, 262 P.2d 337.) Section 581a should be given a like construction. (Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740—741, 329 P.2d 489; Miles & Sons, Inc. v. Superior Court, Supra, 181 Cal.App.2d 151, 153, 5 Cal.Rptr. 73.)

Nor did the fact that the stipulation was not filed until after petitioner made its motion to dismiss render it inoperative. The court's control over an action under section 581a is not lost until an order of dismissal is made and entered. (See Rio Vista Min. Co. v. Superior Court, Supra, 187 Cal. 1, 5, 200 P. 616.) Under section 583 it has been said that ‘the matter of going to trial remains subject to the stipulation of the parties until an actual order of dismissal is made, * * *.’ (Estate of Thatcher, Supra, 120 Cal.App.2d 811, 814, 262 P.2d 337, 339; Koehler v. Peckham, 11 Cal.App.2d 481, 483, 54 P.2d 500; see Rio Vista Min. Co. v. Superior Court, Supra, 187 Cal. 1, 5, 200 P. 616.) The foregoing principle is particularly applicable in the case under review. Petitioner, while claiming an interest by virtue of a subsequent eminent domain action seeking to condemn the same property, instead of making itself a party to the action by filing a complaint in intervention in accordance with the procedure prescribed by section 387 of te Code of Civil Procedure (Bowles v. Superior Court, 44 Cal.2d 574, 588—589, 283 p.2d 704) and asserting, as it could have done (San Bernardino, etc., Water Dist.v. Gage Canal Co., 226 Cal.Rptr. 856), its alleged superior or prior right to condemn the property in question, merely petitioned to ‘intervene specially’ for the ‘single and specific purpose’ of making a motion to dismiss under section 581a. In these circumstances the court was justified in exercising its control over the action despite petitioner's motion to dismiss. The only real parties to the action had executed and filed a stipulation extending time for compliance with section 581a. In addition, the fact that defendant Water Company had filed its answer to the complaint provided additional justification for the court's retention of jurisdiction over the action. (See Harrington v. Superior Court, 194 Cal. 185, 194, 228 P. 15; Bayle-Lacoste & Co. v. Superior Court, 46 Cal.App.2d 636, 644, 116 P.2d 458.

In view of the foregoing it is unnecessary to consider whether the stipulations for partial dismissal constituted a general appearance within the meaning of section 581a.

Petitioner contends that the trial court abused its discretion in failing to exercise its inherent power to order a dismissal for an alleged lack of due diligence in the prosecution of the action. The contention is without substance.

Petitioner, after seeking and being permitted to intervene for the limited purpose of making a motion under section 581a, filed an amended motion, without leave of court, seeking to invoke the court's inherent power. Real parties in interest objected to the court's consideration of the additional ground and the objection was noted by the court. It is thus doubtful whether the issue was properly before the trial court. Assuming that the question of the court's inherent power to dismiss was properly before it, we find no abuse of discretion in the court's refusal to exercise it. Petitioner urged that Valley District's action was not filed in good faith, that there was no collusion between the condemnor and the condemnee, and that Valley District never intended to prosecute the action to conclusion. However, real parties in interest filed declarations of its officers and attorneys denying any collusion and justified the delay on the pendency of litigation involving the annexation of Big Bear Lake to Valley District and the validity of the formation of petitioner Big Bear District. On the evidence before it, the trial court was clearly justified in refusing to invoke its inherent power to dismiss. An appellate court may reverse such an order only upon a clear showing of an abuse of discretion. (Rice v. Arden Farms Co., 199 Cal.App.2d 349, 358, 18 Cal.Rptr. 863; Ordway v. Arata, 150 Cal.App.2d 71, 77, 309 P.2d 919.) Petitioner has failed to meet that burden.

Alternative writ discharged and petition denied.


1.  All references to code sections are to the Code of Civil Procedure unless otherwise specifically indicated.

TAMURA, Associate Justice.

McCABE, P. J., and KERRIGAN, J., concur.

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