HUNT v. NICELY

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Court of Appeal, Third District, California.

James A. HUNT, Petitioner, v. SUPERIOR COURT IN AND FOR the COUNTY OF SACRAMENTO, Respondent; Pearl NICELY, Real Party in Interest.

Civ. 16343.

Decided: November 16, 1976

James A. Hunt, Grass Valley, for petitioner. Gualco, Hummel & Kirby, Sacramento, for real party in interest.

Petition for writ of mandate. Petitioner James A. Hunt (hereinafter ‘defendant’) is the defendant in an action commenced on February 9, 1973, by Pearl Nicely, real party in interest herein (hereinafter ‘plaintiff’). From the petition and opposition thereto it is inferable that service of complaint and summons upon defendant was by mail. (Code Civ.Proc., § 415.30.) Defendant executed an acknowledgment of receipt of summons and complaint on December 21, 1973. The acknowledgment was filed with the clerk October 1, 1975. The summons has never been returned or filed. On August 17, 1976, defendant, citing Code of Civil Procedure section 581a, subdivision (a), moved respondent court to dismiss the action. The motion was denied.

In unambiguous terms, subdivision (a) of section 581a of the Code of Civil Procedure provides: ‘No action heretofore or hereafter commenced by complaint shall be further prosecuted . . . and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced . . . unless the summons on the complaint is served and return 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 or the party against whom the action is prosecuted has made a general appearance in the action.’ (Emphasis ours.)

Plaintiff has not contested the fact that summons was not returned within three years of the commencement of her action, and has not shown that either party stipulated in writing that the time be extended, or that defendant generally appeared in the action within three years of its commencement. The burden of establishing either of the foregoing exceptions rests upon the plaintiff. (Bernstein v. Superior Court (1969) 2 Cal.App.3d 700, 702, 82 Cal.Rptr. 775.) Contrary to the contention of plaintiff, acknowledgment of receipt of summons (Code Civ.Proc., § 415.30) does not constitute a general appearance. (See Code Civ.Proc., § 1014.)

In a case coming within its terms, the dismissal provisions of section 581a are mandatory and jurisdictional (Busching v. Superior Court (1974) 12 Cal.3d 44, 50, 115 Cal.Rptr. 241, 524 P.2d 369; Bernstein v. Superior Court, supra, 2 Cal.App.3d at pp. 702–703, 82 Cal.Rptr. 775.) These provisions apply as well in the situation presented here, in which summons has been served within three years but no return has been made within the same statutory period by filing the summons with the clerk of the court. (Carter v. Superior Court (1960) 187 Cal.App.2d 1, 3, 9 Cal.Rptr. 140; Lambert v. Conrad (1960) 185 Cal.App.2d 85, 89, 8 Cal.Rptr. 56.)

Plaintiff's contention that the dismissal provisions of section 581a are inapplicable to actions in which personal jurisdiction is based upon service of summons by mail (Code Civ.Proc., § 415.30) is without foundation. Subdivision (a) of section 417.30, requiring that summons be returned together with proof of service as provided in sections 417.10 or 417.20, does not distinguish between actions in which defendants have been personally served and actions in which service has been effected by mail. In that regard, it is significant that subdivision (a) of section 417.30 was added two years after the enactment of section 415.30, which provides for service of summons by mail. (Stats.1971, ch. 1366.)

Application for the writ having been made upon due notice to respondent superior court and the plaintiff (the latter having appeared herein), this court may issue a peremptory writ without prior issuance of an alternative writ. (Code Civ.Proc., § 1088.)

A peremptory writ of mandate will issue, directing the superior court to vacate its order denying defendant's motion and to enter an order dismissing the action as to him.

PUGLIA, Presiding Justice.

EVANS and REYNOSO, JJ., concur.

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