GOOD SAMARITAN HOSPITAL v. TRUJILLO (1988)

Good Samaritan Hospital, the petitioner, seeks a writ of mandate compelling the respondent superior court to dismiss this action because the plaintiff did not return the summons to the court within three years and 60 days after the action was commenced as required by Code of Civil Procedure section 583.210, subsection (b).¹  For reasons stated below, the writ shall issue.

RECORD

The plaintiff and real party in interest, Wanda Trujillo, sued petitioner Good Samaritan Hospital (“Hospital”) for medical malpractice.   The complaint was filed on May 10, 1985 and served on the Hospital on March 26, 1988.   Trujillo filed a return of summons with the court on August 5, 1988, which was 27 days beyond the 60 day period mandated by section 583.210, subsection (b).

The trial court denied the Hospital's motion to dismiss the action.

DISCUSSION

 The statutes which apply to this matter are mandatory.  Section 583.210, subsection (a) requires that the summons and complaint be served upon the defendant within three years after the action is commenced.  Section 583.210, subsection (b) provides that return of summons or other proof of service shall be made within 60 days after the time summons and complaint must be served on defendant.   Section 583.250, subsection (a) requires mandatory dismissal “if service is not made in an action within the time prescribed in this article.”   Section 583.250, subsection (b) provides that “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

The trial court refused to dismiss the action on the grounds that there was no prejudice to the Hospital.   However, lack of prejudice is not an excuse under the statutes.

Trujillo relied on the decision in Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 211 Cal.Rptr. 517, 695 P.2d 1058.   That decision construed former section 581a, subdivision (a), which required dismissal unless the summons and complaint were served and return made within three years after the action was commenced.   The facts there were that plaintiff served the summons and complaint by mail on a defendant outside the state within the three years but did not file a return receipt within that period.   The court held that a sufficient return within the statute had been made.   The filed return included an affidavit of mailing and a copy of the summons and complaint.   The substituted service was authorized by statute and was correctly effected.   The court said that the service was effective on the date of its mailing for purposes of the dismissal statute and also concluded that the return filed by plaintiff was adequate under the statute.   Plaintiff performed all acts required to effect service and informed the court of those acts within the prescribed period.  (38 Cal.3d at p. 254, 211 Cal.Rptr. 517, 695 P.2d 1058.)

By contrast, in this case no return of any kind was filed within the prescribed statutory period.   Trujillo filed her complaint on May 10, 1985.   She did not serve the complaint on the Hospital until March 26, 1988, and she did not file the return of proof of service until August 5, 1988.   In opposing the Hospital's dismissal motion, she argued only that there was no prejudice to the Hospital.

Trujillo argues now that dismissal is mandated for failure to serve the defendant within three years, but not for failure to return the summons within three years and 60 days.   She points out that the dismissal statute, section 583.250, does not mention return of service.   It provides for dismissal if service is not made.

 The issue appears to be whether service is “made” for purposes of the dismissal statute before the return is filed with the Court.   Service is made for purposes of obtaining jurisdiction over the defendant when the summons is properly delivered to him.   But the court is not informed of the service until the return is filed.   If dismissal is not an appropriate remedy for failure to meet the 60 day requirement of section 583.210, subsection (b), then there is no apparent remedy.

 Trujillo cites decisions holding that jurisdiction does not depend on proof of service but upon the fact that service is made.  (E.g., In re Spiers (1939) 32 Cal.App.2d 124, 127, 89 P.2d 456.)   That proposition is correct but does not determine the issue here.   The question is whether the statutes mandate dismissal for breach of the 60 day rule.   The pertinent statutes do not require a showing of lack of jurisdiction over the defendant;  they require dismissal under conditions of dilatory prosecution of the lawsuit, as statutorily defined.

This court recently held that under former law dismissal would be mandated for untimely return of the summons.  (Tires Unlimited v. Superior Court (1986) 180 Cal.App.3d 974, 226 Cal.Rptr. 25.)   That decision strongly implied that under the present law the result would be the same.  (Id. at pp. 981, 982, 984, 226 Cal.Rptr. 25.)   We cited decisions under former law requiring dismissal for failure timely to return the summons.  (E.g. Woodruff v. McDonald's Restaurants (1977) 75 Cal.App.3d 655, 657, 142 Cal.Rptr. 367.)   We also referred elsewhere to the right to a dismissal for an untimely return of the summons, under an analogous Revenue and Taxation Code section.  (Id. 180 Cal.App.3d at p. 984, 226 Cal.Rptr. 25, citing Synanon Foundation, Inc. v. County of Marin (1982) 133 Cal.App.3d 607, 614–615, 184 Cal.Rptr. 129.)

Nothing in the legislative history of the new statutes, as reflected in the Code Commissioner's comments, shows an intention to change former law in this respect.   The statutes lengthened the time to return summons from a period of three years to a period of three years and 60 days.   Presumably the legislature intended some sanction to obtain if the chosen limitation is transgressed.

We hold that dismissal is mandatory if the plaintiff fails to return summons or proof of service within the maximum three year and 60 day period permitted by statute.   The return here was filed 27 days late and therefore the action must be dismissed.

DISPOSITION

Real party in interest has been notified that a peremptory writ in the first instance could be issued here, and she has filed opposition.   The peremptory writ of mandate will issue in the first instance.  (Code Civ.Proc. § 1088;  Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–182, 203 Cal.Rptr. 626, 681 P.2d 893.)

Let a peremptory writ of mandate issue directing respondent superior court to dismiss this action as against petitioner Good Samaritan Hospital.   Petitioner shall have costs as prevailing party in this matter.   Our stay of proceedings shall remain in effect until this opinion is final.

FOOTNOTES

1.   All further statutory references are to the Code of Civil Procedure.

ELIA, Associate Justice.

AGLIANO, P.J., and CAPACCIOLI, J., concur.