HILL v. PARR (1967)

This is a petition for a writ of mandate to require the superior court to dismiss the action now pending before it entitled Parr v. Hill and Safeway Stores, number SEC 1992(S), because of the failure of plaintiff to comply with section 581a, Code of Civil Procedure. That section provides that no action shall be further prosecuted and all actions ‘must be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, * * * 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. * * * provided, that, * * * no dismissal shall be had under this section as to any defendant because of the failure to serve summons on him during his absence from the State, or while he has secreted himself within the State to prevent the service of summons on him.’ The petition is opposed by the real party in interest who is the plaintiff in the action.

Plaintiff, Christmas Parr, a realtor, was injured in a rear-end collision on September 17, 1962, between his automobile which was stopped for a traffic signal and a truck owned by Safeway Stores operated by one Hill as its agent. On October 30, 1962, Parr's attorneys advised Travelers Insurance Company, the insurance carrier for Safeway Stores, by letter of the happening of the accident and that they would make further contact after the extent of Parr's injuries were ascertained.

Plaintiff's complaint was filed and summons issued on August 28, 1963. Hill was served with the summons and complaint on September 8, 1963, and shortly thereafter Travelers was notified of the filing of the action and of the service of the summons on Hill. It may be fairly inferred from the record that both Hill and Safeway Stores were granted an open extension of time to plead, although Safeway Stores was never served.

Negotiations with Travelers for settlement of Parr's claim continued until late in 1965 or possibly until the early part of 1966. In October 1964 Travelers' adjuster had informed Parr's attorneys that Travelers was not denying liability and that the only issue was the amount of Parr's claim. The record indicates that as late as September 28, 1965, Parr was still demanding $49,000 although his attorney indicated a willingness to reduce that to $30,000, whereas the defendant was apparently unwilling to pay more than $10,000. It is open to question, however, whether an actual offer of $10,000 had been made by the defendant. Parr's attorneys notified Travelers early in 1966 that they would furnish certain further information which Travelers had requested in support of Parr's claim as soon as Mrs. Parr, who was Parr's bookkeeper, was physically able to prepare it. The delay in furnishing this information was due to the fact that early in 1966 Mrs. Parr had herself been seriously injured in an automobile accident for which she had been hospitalized for several months and had later undergone surgery which again made it impossible for her to work for another period of several months. Travelers did not at any time advise Parr's attorneys that it was terminating the settlement negotiations or that Parr's claim had been rejected.

No appearance was made in court by either of the defendants until December 1966 when both Hill and Safeway Stores joined in a motion to dismiss the action for the failure of Parr to serve and return summons within three years after August 28, 1963, the date on which it had been issued. This motion was denied by the trial court and defendants have now petitioned this court for relief.

In support of the motion defendants argued that the three-year limitation of section 581a as to service and return of summons is mandatory. In the trial court, defendants relied primarily on Gonsalves v. Bank of America, 16 Cal.2d 169, 105 P.2d 118, as quoted in later cases, where it was held that the provision of section 581a here under discussion ‘is ‘jurisdictional’ in the sense that the court has no power to excuse the delay * * *. It has power to act only in a certain way, that is, by ordering a dismissal.' (P. 172, 105 P.2d p. 120.)

Parr's opposition to the motion in the trial court was based on the doctrine of equitable estoppel. His contention was that that doctrine was available to him to prevent defendants from relying on the statute of limitations as a defense. In our opinion the doctrine of equitable estoppel is not applicable to the case before us. Defendants here do not and could not rely on the statute of limitations as a defense, since the action was filed well within a year after the accident. As the court said in J. A. Thompson & Sons, Inc. v. Superior Court, 215 Cal.App.2d 719, at page 722, 30 Cal.Rptr. 471, at page 473, ‘the purpose of the statute of limitations is distinct and apart from that of the time limitations contained in 581a. The statute of limitations is concerned only with the timeliness of instituting an action, while section 581a is concerned with the speedy prosecution of an action after such action has already been commenced.’ No case has been cited, and we have found none, holding that the doctrine of equitable estoppel applies to cases arising under the provisions of section 581a relating to the time for service and return of summons.

It does not follow from what we have just said that the trial court abused its discretion in denying defendants's motion to dismiss the action.

In Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740, 329 P.2d 489, 491, the court again stated, as it had in Gonsalves, that section 581a, Code of Civil Procedure, so far as pertinent here, is a rule “designed to encourage promptness in prosecution of actions,” by which the trial court's inherent discretionary power to dismiss for lack of prosecution ‘was modified by a mandatory provision for dismissal, which provision was qualified, however, by certain [statutory] exceptions.’ The court then held, by analogy to its decision in Rose v. Knapp, 38 Cal.2d 114, 237 P.2d 981, that section 581a is further qualified by an ‘implied exception.’

In Rose v. Knapp, supra, it was held that in a proper case the court could exercise its discretion in applying the apparently mandatory language of section 583, Code of Civil Procedure, requiring the dismissal of actions not brought to trial within five years after being filed. Thus, as the court said in Wyoming Pacific, ‘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.’ In Wyoming Pacific, supra, 50 Cal.2d at pages 740–741, 329 P.2d at page 429, the court then said it was ‘of the view that notwithstanding the mandatory language of section 581a, the trial court is vested with discretion in applying the exceptions comparable to the discretion with which it is vested in applying the exceptions to section 583. As with the exercise of the court's other inherent and statutory powers in either serving the summons or bringing the action to trial, the discretion permitted must be ‘exercised in accordance with the spirit of the law and with a view of subserving, rather than defeating, the ends of substantial justice.’ 16 Cal.Jur.2d, Dismissal, Discontinuance, and Nonsuit, § 30, p. 179. Each case must be decided on its own particular facts, and no fixed rule can be prescribed to guide the court in its exercise of this discretionary power under all circumstances.'

Here it appears that Travelers Insurance Company as the insurance carrier for Safeway Stores was well aware of the happening of the accident shortly after it occurred, and that it carried on extended negotiations for settlement for substantially more than two years without denying the liability of its insured. There is no showing that Safeway Stores or Travelers was prejudiced by Parr's unavoidable delay in furnishing certain additional information with respect to his claim during the months before defendants filed their motion, or that Travelers ever notified Parr's attorneys that it was terminating the settlement negotiations because of that delay or for any other reason. While Parr's attorneys should have been on the alert to serve the summons on Safeway Stores which had already been served on Hill and return the summons with proof of service within three years from the commencement of the action, their lack of diligence in failing to do so was excusable.

We therefore conclude that in the circumstances of this case the trial court properly exercised its discretion in accordance with the spirit of the law and with a view of serving, rather than defeating the ends of substantial justice, and that its order denying defendants' motion was proper.

Since petitioners have failed to make an adequate showing that the respondent court was under a duty to dismiss the action, no useful purpose would be served by issuing an alternative writ and placing the matter on the calendar for argument. The petition for a peremptory writ of mandate is denied.

FOOTNOTES

FOOTNOTE.  

McCOY, Justice pro tem.* FN* By assignment of the Chairman of the Judicial Council.

ROTH, P. J., and HERNDON, J., concur.