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

Viola V. SERRANO, Plaintiff and Appellant, v. SAFEWAY STORES, INCORPORATED, Defendant and Respondent.

B 008411.

Decided: March 26, 1986

Haight, Dickson, Brown & Bonesteel, Roy G. Weatherup, and Robert M. Dato, Santa Monica, for plaintiff and appellant. Law Offices of Peter M. Tomaryn, Beverly Hills, for defendant and respondent.

Plaintiff appeals from the trial court's dismissal of her personal injury action for failure to return the summons within 3 years of commencing the lawsuit.   We reverse.

The events giving rise to this action transpired on October 8, 1979, in a market owned by defendant Safeway.   Several weeks later, plaintiff asserted her claim against defendant, which defendant quickly acknowledged by letter.   Defendant referred plaintiff to its claims adjuster, General Adjustment Bureau.   Plaintiff sent her medical records to it and the parties corresponded for the next several months about the extent of her damages and related issues but apparently achieved no satisfactory settlement of the matter.

On October 7, 1980, plaintiff filed her complaint.   After further correspondence with defendant, plaintiff filed a first amended complaint on August 22, 1983.

On September 14, 1983, plaintiff served defendant with summons on the first amended complaint.

On October 13, 1983, defendant filed its answer;  however, the answer was dated October 3, 1983.

Thereafter, pretrial proceedings continued and in April 1984 trial was set for August 1984.

But in May 1984, defendant moved to dismiss the action.   It relied upon the then effective provisions of Code of Civil Procedure § 581a 1 which required the plaintiff to file with the court the return on the service of the summons and complaint within 3 years of the filing of her action or otherwise face dismissal.2  It is not disputed that plaintiff has never filed said return with the court.

Plaintiff's opposition to the motion to dismiss urged that defendant had in no manner been prejudiced because of plaintiff's failure to file the return since defendant had had notice of plaintiff's claim from the outset.   Moreover, plaintiff argued that equitable considerations militated against granting defendant's motion because defendant had filed its answer only several days after the three-year statute had run and then permitted proceedings to continue for eight months before requesting dismissal of the cause.   Had defendant filed its answer before the three-year period had run, that action would have constituted a general appearance and would have therefore barred defendant from making a motion to dismiss.  (See Busching v. Superior Court (1974) 12 Cal.3d 44, 115 Cal.Rptr. 241, 524 P.2d 369.)   As defendant's answer was dated October 3 but not filed until October 13, the implicit thrust of plaintiff's argument was that defendant had lain in wait for plaintiff, waiting for the three-year statute to run before it made its general appearance.

The trial court was moved by plaintiff's arguments but felt that it had no choice other than to grant the motion for dismissal.3  We reverse because we conclude that under the particular circumstances of this case, dismissal was neither mandated nor in the interests of justice.

At the outset, we note that the superior court erred in concluding that it had no discretion to deny defendant's motion.  “Notwithstanding the mandatory language of [former Code of Civil Procedure] § 581a the trial court is vested with the discretion to apply exceptions comparable to the discretion with which it is vested in applying the exceptions to [former Code of Civil Procedure] § 583 (dismissal for failure to prosecute within two, three or five years).   [Citation].  Such discretion must be exercised in accordance with the spirit of the law and with a view toward serving rather than defeating the ends of substantial justice;  each case is to be decided on its own facts as no fixed rule for all circumstances can be prescribed to guide the courts in its exercise of this discretionary power.  [Citations].”  (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 769, 145 Cal.Rptr. 814, disapproved on other grounds in Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 254, fn. 7, 211 Cal.Rptr. 517, 695 P.2d 1058;  Accord:  Courtney v. Abex Corporation (1986) 176 Cal.App.3d 343, 221 Cal.Rptr. 770;  but see Botsford v. Pascoe (1979) 94 Cal.App.3d 62, 69–71, 156 Cal.Rptr. 177.)

In exercising its discretionary power in ruling upon a dismissal motion such as the one brought in the case at bench, the trial court should be guided by the fact that the purpose behind the requirement in former Code of Civil Procedure § 581a that a plaintiff file with the court a return of service of the summons is to give the court notice that plaintiff is diligently prosecuting its case and that defendant has been informed of the lawsuit against it and knows that it must appear in court.  (Johnson & Johnson v. Superior Court, supra, 38 Cal.3d at p. 254, 211 Cal.Rptr. 517, 695 P.2d 1058.)   While that goal is laudable, the sanction of dismissal for failure to comply certainly seems disproportionate to the harm caused.   And significantly, it is the fact of proper service upon defendant that gives the court jurisdiction over the case, not proof of said service.  (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 234, 178 Cal.Rptr. 38.)

Furthermore, the successor statutes to former Code of Civil Procedure § 581a have eliminated the provision that failure to return service of summons can give rise to a motion to dismiss;  only if a plaintiff has failed to serve the defendant within 3 years may the cause be dismissed.4  In making this change in statutory law it was noted that “[t]he purpose of the service requirement is to assure the defendant prompt notice of the action;  for this purpose the requirement that summons be returned is unnecessary.   The return requirement is merely a technicality in the law that may defeat a legitimate action in which service is accomplished promptly.   The requirement has been called ‘a vintage anachronism in California law’ that does not coincide with public policy.  [Newly enacted Code of Civil Procedure § 583.250] eliminates the return requirement.”  (Revised Recommendation Relating to Dismissal for Lack of Prosecution, 17 Cal.L.Revision Comm'n. Reports 905, 911–912, (1984);  footnotes omitted.)

At bench, defendant never claimed, nor could it claim, that it did not have notice of the pending action.   Nor has it argued that plaintiff's technical failure to file with the court the return of service has prejudiced its ability to prepare a defense to her claim.   Instead, defendant has relied upon the seemingly mandatory provisions of former § 581a to urge dismissal;  ironically though, defendant waited 8 months to move for dismissal and in the interim filed its answer to plaintiff's complaint and permitted the matter to be set for trial.   In view of these circumstances and the limited interest served by the requirement of filing a return, the dismissal order at bench was in error and not in furtherance of justice.

Moreover, it is clear to us from reviewing the record that had the trial court recognized that it had the inherent power to deny the motion to dismiss, it would have done so (ante, fn. 3).

The judgment (order of dismissal) is reversed.

I dissent.

The majority opinion rests on the premise that the trial court had a judicially recognized, inherent discretion to ignore the command of the statute notwithstanding the mandatory language.   I cannot agree with this conclusion.

Former Code of Civil Procedure, section 581a, subdivision (a) is clear and unambiguous.   It does not say that the trial court may exercise its discretion as to whether or not to follow its command.   To the contrary, to prevent dismissal, compliance with the statute is not excusable except in the two specific situations set forth in subparagraph (f) of section 581a, neither of which apply here.   Accordingly, the trial court had no discretion and no authority but to dismiss.   At bench there was no stipulation in writing, nor a general appearance made by the defendant by the time the three-year period expired.   Once the three years passed without the filing of the return, by the mandate of subparagraph (f) of section 581a, the trial court lost jurisdiction—i.e., power to do anything but dismiss absent one of the two excuses listed in subparagraph (f).   Those two listed excuses are:  (1) estoppel, and (2) impossibility, impracticability or futility to comply due to causes beyond the control of plaintiff.   At bench there was no finding of any facts establishing any of these excuses.

The majority cites Anderson v. Sherman (1981) 125 Cal.App.3d 228, 234, 178 Cal.Rptr. 38, as authority for the assertion that it is the fact of service, not the proof thereof, that gives the trial court jurisdiction.   While that may have been the decisional law up to the time of the Anderson decision (November 4, 1981), it was not the law at the time when the three years expired in the case at bench (October 10, 1983.)   The dismissal was made mandatory “․ unless the summons on the complaint is served and a return made within three years ․” (emphasis added) and the acts of serving and returning the summons were made jurisdictional by the language of the statute itself “․ the time within which acts are to be done are jurisdictional.”  (Subp. (f), stat.1982, ch. 600, § 1).

The treatment by the California Supreme Court of section 581a, subparagraph (a) as it read at the time in issue is significant.   In Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 211 Cal.Rptr. 517, 695 P.2d 1058, the same statute was there as it is here in issue.   The California Supreme Court there determined that the defendant was served with summons within the three year period.   If that had been sufficient and the return of service under the statute was not jurisdictional, it would have been wholly unnecessary for the California Supreme Court to address therein the issue concerning the return of summons.   However, the court having earlier noted, among other things, that the provision “ ‘of 581a are mandatory and are not excusable and the times within which the acts are to be done are jurisdictional.’ ”  (Johnson & Johnson v. Superior Court, supra, at p. 247, fn. 2, 211 Cal.Rptr. 517, 695 P.2d 1058), went on to examine and discuss the issue of the timeliness of the return made, stating “it then becomes necessary to determine whether return was made within three years of the commencement of the actions, the second requirement of section 581a, subdivision (a).”   (Emphasis added.)

In support of its position concerning the crux of this case, the majority relies on the language quoted from the earlier case of M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 769, 145 Cal.Rptr. 814.   That pronouncement standing alone is strong stuff, at least amazing if not totally inaccurate.   It is nothing short of but saying “never mind the statute.”

A thoughtful analysis of the actual holding of Lowenstein, and putting the—quoted statement in better context than that for which Lowenstein itself used the expression and for which the majority opinion here relies is found in Botsford v. Pascoe (1979) 94 Cal.App.3d 62, at p. 70, 156 Cal.Rptr. 177, as follows:  “M. Lowenstein & Sons, Inc. v. Superior Court does not, in our view, purport to authorize this or any other court to disregard the Legislature's mandate that return be made within three years.   Rather, M. Lowenstein & Sons, Inc. v. Superior Court simply approves the trial court's application of the rule (also stated in Ginns v. Shumate (1977) 65 Cal.App.3d 802, 806 [135 Cal.Rptr. 604], and subsequently in Billings v. Edwards (1979) 91 Cal.App.3d 826, 831 [154 Cal.Rptr. 453] ) that a timely but formally defective return may be corrected by amendment made, nunc pro tunc, after the three-year period has run.”  (Emphasis in original.)

Implied exceptions to the mandatory dismissal rule were judicially recognized but generally limited to cases where the facts disclosed the actual presence of such exceptions.  (E.g., Kinard v. Jordan (1917) 175 Cal. 13, 164 P. 894;  Estate of Morrison (1932) 125 Cal.App. 504, 14 P.2d 102;  Christin v. Superior Court (1937) 9 Cal.2d 526, 71 P.2d 205;  Rose v. Knapp (1951) 38 Cal.2d 114, 237 P.2d 981, Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 329 P.2d 489.)   Unfortunately in Wyoming a case where the defendant had secreted himself to avoid service, thus creating a true impossibility, the court used the following language:  “Despite the apparently mandatory language of that section, this court has found many ‘implied exceptions' where it was ‘impracticable and futile’ to bring the action to trial within the designated five year period.  (Rose v. Knapp [(1951) ], 38 Cal.2d 114, 117, [237 P.2d 981, 983 with cases cited.] )  Thus, discretion has entered into the application of this provision so as to prevent it from being used to compel the dismissal of actions where the plaintiff has not had a reasonable opportunity to proceed to trial [citation].”  It was this language from Wyoming that the opinion in M. Lowenstein unnecessarily and inapplicably quoted.   From this broad language in, rather than the holding of, Wyoming the idea seemed to develop that discretion to refuse dismissal could be based on something other than the presence of the statutory or the historically recognized exceptions.   Thus, in Hocharian v. Superior Court (1981) 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829, the California Supreme Court held that in dismissal cases such as at bench the key issue is plaintiff's diligence, rather than the existence of a specific judicially developed exception.   That this decision was an unwarranted extension of any idea of discretion to include plaintiff's reasonable diligence was pointed out by Justice Richardson's dissent.   The decision of Hocharian was nullified by the stat. of 1982, ch. 600, § 1, adding subsection (f).  (See Kaus, J. concurring opinion in Moran v. Superior Court (1983) 35 Cal.3d 229, at p. 243, 197 Cal.Rptr. 546, 673 P.2d 216.)   Accordingly, the statutory response vindicated Justice Richardson's dissent upon which, along with Botsford v. Pascoe, supra, 94 Cal.App.3d 62, 156 Cal.Rptr. 177;  Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 120 Cal.Rptr. 445, and the statute itself, subparagraph (f), I rely to support my conclusion that the trial court's decision should be affirmed.


1.   Although as of January 1, 1985, former Code of Civil Procedure § 581a was repealed and replaced by newly enacted Code of Civil Procedure § 583.210, its provisions control the case at bench since it was in effect in 1984 when the motion to dismiss was made and granted.  (Code Civ.Proc., § 583.160, sub. (b).)

2.   Former Code of Civil Procedure § 581a provided, in pertinent part:“(a) No action heretofore or hereafter commenced by complaint shall be further prosecuted ․ unless the summons on the complaint is served and return made within three years after the commencement of the 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 ․“․“(f) Except as provided in this section, the provisions of this section are mandatory and are not excusable, and the times within which acts are to be done are jurisdictional.   Compliance may be excused only for either of the following reasons:“(1) Where the defendant or the cross-defendant is estopped to complain.“(2) Where it would be impossible, impracticable, or futile to comply due to causes beyond a party's control.   However, failure to discover relevant facts or evidence shall not excuse compliance.”

3.   At the hearing on the motion to dismiss, the court stated, in part:  “Frankly, Mr. Anderson [counsel for plaintiff], I was looking for some way to help you out on it.“I was somewhat moved by the argument of [defendant] delaying eight months [before filing the motion to dismiss].  But I looked at the cases and I don't think there is any way out of it, unfortunately․  [¶] Frankly, I think that the requirement that the summons be returned, in addition to being served, is rather draconian and whether it serves any really useful purpose is problematical.   But I didn't write the law.  [¶] Maybe reasonable minds will differ on it but I feel that under the cases I don't have any other alternative but to grant.   If you want to go up on it and you get it turned over, I won't be terribly upset about it.   But I really think I'm restricted to that ․  [¶] So the motion to dismiss is granted.”

4.   Code of Civil Procedure § 583.210, entitled “Time for service and return,” provides:“(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.   For the purpose of this subdivision an action is commenced at the time the complaint is filed.“(b) Return of summons or other proof of service shall be made within 60 days after the time the summons and complaint must be served upon a defendant.”Code of Civil Procedure § 583.250 entitled “Failure to make timely service;  mandatory nature of article,” states:“(a) If service is not made in an action within the time prescribed in this article:“(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.“(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.“(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

ROTH, Presiding Justice.

COMPTON, J., concur.