WATTS v. CRAWFORD (1993)

Plaintiffs appeal from an order dismissing their action against defendant due to their failure to effect service of summons within three years.   Plaintiffs rely on Quaranta v. Merlini (1987) 192 Cal.App.3d 22, 237 Cal.Rptr. 179, in support of their assertion that dismissal was precluded as a result of the court's finding, in support of an order for publication of summons, that defendant could not be served with reasonable diligence in any manner other than by publication.   We conclude that Quaranta is incorrect and affirm the dismissal of this action.

FACTS

 Plaintiffs filed an action against defendant on February 8, 1989.   On February 6, 1992, plaintiffs applied for and obtained an order for publication of summons.   This order was based on the court's finding that “said Defendants cannot be served with reasonable diligence in any other manner․”   However, service was not completed before the expiration of the statutory period.¹  Defendant moved to dismiss the action pursuant to Code of Civil Procedure 2 section 583.210 because plaintiffs had failed to serve the summons within three years.   In their opposition to defendant's motion to dismiss, plaintiffs relied on Quaranta and claimed that “the [publication order's] finding that a plaintiff exercised reasonable diligence in his attempts to serve the defendant, constituted an implicit finding of fact that the defendant was not amenable to the process of the Court, thus tolling the three-year statute.”  (Emphasis added.)   Plaintiffs asserted that the court was bound by this “implied finding” and therefore could not grant defendant's motion to dismiss.   The trial court implicitly rejected this argument and granted defendant's motion to dismiss.

DISCUSSION

The issue presented is whether the “reasonable diligence” finding which supported the publication order established that defendant was “not amenable to the process of the court” for some period of time after the filing of the complaint.   We conclude that it did not.

 Section 583.250(a)(2) mandates dismissal of an action if service is not made within the statutory period.   Reasonable diligence does not excuse a failure to effect service within the statutory period.  (Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1321, 285 Cal.Rptr. 910.)   Section 583.240 governs the computation of the time within which service of summons must be accomplished.   Subdivision (a) of section 583.240 excludes from the statutory period any time during which “[t]he defendant was not amenable to the process of the court.” ³  Whether a defendant was “not amenable to the process of the court” is a question of fact for the trial court upon which the plaintiff has the burden of proof.  (Obergfell v. Obergfell (1955) 134 Cal.App.2d 541, 546, 286 P.2d 462;  Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 498, 255 Cal.Rptr. 8.)   Therefore, we must uphold the court's dismissal order unless plaintiffs' proof established as a matter of law that defendant was “not amenable to the process of the court.”

Plaintiffs failed to establish that defendant was “not amenable to the process of the court.”   Their opposition to defendant's motion to dismiss was based on the court's publication order.   Relying on Quaranta, plaintiffs claim that the publication order established that defendant was “not amenable to the process of the court.”   In Quaranta, the plaintiffs sought an order for publication of summons after the expiration of the statutory period.   In their application for this order, they contended that the defendant “had not been amenable to process” during the statutory period.  (Id. 192 Cal.App.3d at p. 27, 237 Cal.Rptr. 179.)   The court ordered publication of the summons based on its finding that the defendant could not “ ‘with reasonable diligence be served in any other manner.’ ”  (Ibid.)  When the defendant subsequently moved to dismiss, the court found that the defendant had been amenable to service and dismissed the action.  (Ibid.)  Without analysis, Quaranta leaped to the conclusion that, in making its publication order, “[t]he trial court impliedly found that, as contended by [plaintiffs], [defendant] was not amenable to the court's process and that the time allowed for service ․ was therefore tolled.”  (Ibid., emphasis added.)   Then, proclaiming that the California Supreme Court's decision in Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 329 P.2d 489 (hereafter Wyoming ) was “dispositive”, the appellate court reversed the judgment of dismissal.   (Quaranta v. Merlini, supra, 192 Cal.App.3d at pp. 28–31, 237 Cal.Rptr. 179.)

Wyoming is not dispositive here and was not dispositive in Quaranta.   Under the statutes in effect at the time of Wyoming, a publication order could be based on a finding that the defendant had concealed himself to avoid service and an action could not be dismissed for failure to serve the summons within three years if the defendant had “secreted” himself to “prevent” service.  (Wyoming, 50 Cal.2d at pp. 739–740, 329 P.2d 489.)   In Wyoming the plaintiff obtained an order for publication of summons precisely three years after filing the action.  (Wyoming at p. 738, 329 P.2d 489.)   This order was explicitly based on a factual finding by the court that the defendant had concealed himself to avoid service.  (Wyoming at pp. 739–740, 329 P.2d 489.)   Defendant's motion to dismiss for failure to serve the summons within three years was subsequently granted.   The California Supreme Court reversed.   It explained that the factual finding of concealment necessary to the publication order was a binding adjudication of that issue.   Since dismissal for failure to serve the summons within three years was not permitted where the defendant had secreted himself to prevent service, and there had already been a binding adjudication of that issue (i.e. that defendant had concealed himself), dismissal was an abuse of discretion.  (Wyoming at pp. 740–741, 329 P.2d 489.)

 Wyoming was based on a simple proposition.   A factual finding necessary to an order is a binding adjudication of that fact and a contrary factual finding cannot ordinarily support a subsequent order in that action.   This holding is unassailable but has no application to the facts of the case before us.   The publication order herein was based solely on a finding that defendant could not be served with reasonable diligence in any manner other than by publication.   No finding regarding defendant's amenability to process was necessary to this order and no such finding was made.⁴  Plaintiffs' argument is premised on their claim that a defendant who “cannot be served with reasonable diligence” is, as a matter of law, “not amenable to the process of the court.”   This premise is incorrect.   Whether a defendant is “not amenable to the process of the court” does not depend on a plaintiff's success or failure in attempting to effect service on that defendant.   Instead, a defendant is “not amenable to the process of the court” only when due process requirements preclude the court from exercising personal jurisdiction over a particular defendant at a particular time.  (Cf. McGee v. International Life Ins. Co. (1957) 355 U.S. 220, 223–224, 78 S.Ct. 199, 201–02, 2 L.Ed.2d 223;  Herring v. Peterson (1981) 116 Cal.App.3d 608, 612, 172 Cal.Rptr. 240;  Code Civ.Proc., § 410.10.)  Consequently, the factual finding of reasonable diligence which supported the publication order was not inconsistent with the court's subsequent implicit finding that defendant had been amenable to the process of the court throughout the statutory period.   As plaintiffs failed to meet their burden of proving that defendant was not amenable to the process of the court for any period of time between the filing of the complaint and the expiration of the statutory period, the court did not abuse its discretion in dismissing the action.

CONCLUSION

The judgment is affirmed.

I respectfully dissent.   I do not agree that Quaranta v. Merlini (1987) 192 Cal.App.3d 22, 237 Cal.Rptr. 179, can be cavalierly dismissed as “incorrectly decided.”   The context of this entire proceeding is that plaintiffs are seeking to obtain service by publication, or substituted service, for the reasons that render the defendant unamenable to the process of the court by other methods of service.   Service by publication is intended to be a final alternative to directly effected service.

If, as happened in this case, a plaintiff makes an adequate showing of serious efforts to effectuate service, then he or she should be entitled to a publication order.   The extent of the tolling period is a factual question and plaintiff must establish that in the event service is subsequently questioned.

I disagree that the Quaranta court “leaped to the conclusion” that defendant was not amenable to service.   I respectfully suggest that the court read an evidentiary declaration, adequate to its purpose, implicitly concluded that facts warranted a tolling of the service period, and properly issued a publication order.   The trial court who considered this factual question and fairly rendered a determination deserves to have its ruling respected in subsequent proceedings.

I would reverse the judgment.

FOOTNOTES

1.   Service by publication requires four weeks of weekly publication and is not complete until the end of the fourth week after the first day of publication.  (Govt.Code, § 6064.)

FN2. Subsequent statutory references are to the Code of Civil Procedure unless otherwise specified..  FN2. Subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

3.   Subdivision (d) of section 583.240 excludes from the statutory period any time during which service was “impossible, impracticable, or futile due to causes beyond the plaintiff's control.”   Plaintiffs made no claim in the trial court that subdivision (d) was applicable herein.

4.   Plaintiffs' affidavits in support of their request for an order for publication indicated that defendant had no permanent residence but visited the local property involved in the litigation approximately every six months.   A process server hired by plaintiff in May 1989 had unsuccessfully attempted to serve defendant at her last known address but discovered that she did not live there.   He had also looked for a current address for defendant in the San Francisco Bay Area but had failed to find one.   He declared:  “I have not been able to effectuate service of process in any of the manners set forth in California Code of Civil Procedure, from Section 415.10 to Section 415.30.”

MIHARA, Associate Justice.

ELIA, J., concurs.