Big Bear Municipal Water Dist. v. Superior Court for San Bernardino County

• Decision Date: 20 February 1969
• Citation: 269 Cal.App.2d 919,75 Cal.Rptr. 580
• Parties: BIG BEAR MUNICIPAL WATER DISTRICT, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SAN BERNARDINO, Respondent; SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT and Bear Valley Mutual Water Company, Real Parties in Interest. Civ. 9402.
• Court: California Court of Appeals Court of Appeals

Page 580

75 Cal.Rptr. 580

269 Cal.App.2d 919

BIG BEAR MUNICIPAL WATER DISTRICT, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SAN BERNARDINO, Respondent SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT and Bear Valley Mutual Water Company, Real Parties in Interest.

Civ. 9402.

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

Feb. 20, 1969.

Rehearing Denied March 14, 1969.

Hearing Denied April 17, 1969.

[269 Cal.App.2d 921] Alexander R. Tobin, Upland, for petitioner.

Garst & Dilworth and James W. Dilworth, Riverside, for San Bernardino Valley Municipal Water District, real party in interest.

Surr & Hellyer and John B. Surr, San Bernardino, for Bear Valley Mutual Water Co., real party in interest.

OPINION

TAMURA, Associate Justice.

Petitioner Big Bear Municipal Water District (Big Bear District) seeks a writ of mandate to compel the superior court (1) to dismiss an eminent domain action instituted by San Bernardino Valley Municipal Water District (Valley District) on the ground that summons was not returned within three years as required by section 581a of the Code of Civil Procedure, ¹ and (2) to vacate an order barring Mr. Tobin, attorney for Big Bear District, from further participation in the Valley District eminent domain action. ²

The following is a chronology of the events leading to the present petition insofar as it seeks to compel dismissal of the Valley District action:

On April 6, 1962, Valley District filed an eminent domain action to condemn certain properties owned by the Bear Valley Mutual Water Company (Water Company). In the court below all parties assumed that the properties sought to be condemned included Big Bear Lake, but at the hearing on the present petition it appeared that the legal description did not include the lake. Summons was issued but return thereon was never made. On December 6, 1963, and again on March 24, 1965, Valley District and Water Company, through their respective attorneys, filed written stipulations for dismissal of the action as to portions of the properties sought to be condemned.

On June 30, 1966, Big Bear District, which had filed a subsequent eminent domain action seeking to condemn Big Bear Lake, was permitted to intervene in the Valley District action for the limited purpose of making a motion to dismiss pursuant to the provisions of section 581a.

On July 7, 1966, Water Company filed a general demurrer to Valley District's complaint.

On July 14, 1966, Valley District and Water Company entered into and filed a written stipulation waiving the provisions of section 581a and agreeing that the time for the issuance, service and return of summons be extended to December 31, 1966.

On August 12, 1966, its demurrer having been theretofore overruled, Water Company filed its answer to the complaint in eminent domain.

Meanwhile Big Bear District filed an amended notice of motion to dismiss Valley District's action by requesting the court to invoke its inherent discretionary power to dismiss for failure to prosecute with due diligence.

The motion to dismiss was heard and submitted on August 12, 1966, and was subsequently denied.

Mandamus is an appropriate remedy to obtain review of an order denying a motion to dismiss. (Perry v. Magneson, 207 Cal. 617, 620, 279 P. 650; Coates Capitol Corp. v. Superior Court, 251 Cal.App.2d 125, 127, 59 Cal.Rptr. 231; Rio Del Mar Club v. Superior Court, 84 Cal.App.2d 214, 217, 190 P.2d 295.) Petitioner contends that it was a mandatory duty of the trial court to dismiss the action because summons was not returned within three years as required by section 581a. The real parties in interest contend that the mandatory dismissal provision of section 581a was inoperative because (1) the parties filed a written stipulation extending time, and (2) the written stipulations for partial dismissal of the action constituted a general appearance by the Water Company within the statutory period.

Section 581a provides in relevant part that all actions '* * * must be dismissed by the court * * *, 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. But all such actions may be prosecuted, if general appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served; * * *.'

It has been held that the provisions of section 581a are mandatory and 'jurisdictional' and that in cases coming within its provisions, the court has no authority except to order dismissal. (Black Bros. Co. v. Superior Court, 265 A.C.A. 548, 552, 71 Cal.Rptr. 344; 2 Witkin, California Procedure, 1667.) The section is applicable to eminent domain proceedings. (Dresser v. Superior Court, 231 Cal.App.2d 68, 78, 41 Cal.Rptr. 473.)

In the case under review, however, the written stipulation extending time rendered the mandatory dismissal provisions of section 581a inoperative. The fact that the stipulation was filed after the expiration of the statutory period did not render it ineffective. (See Miles & Sons, Inc. v. Superior Court, 181 Cal.App.2d 151, 153, 5 Cal.Rptr. 73.) It has been held that under section 583 a stipulation extending time may be executed and filed after the expiration of the five year period. (Lewis v. Neblett, 48 Cal.2d 564, 568, 311 P.2d 489; Rio Vista Min. Co. v. Superior Court, 187 Cal. 1, 5, 200 P. 616; Estate of Thatcher, 120 Cal.App.2d 811, 814, 262 P.2d 337.) Section 581a should be given a like construction. (Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740--741, 329 P.2d 489; Miles & Sons, Inc. v. Superior Court, Supra, 181 Cal.App.2d at p. 153, 5 Cal.Rptr. 73.)

Nor did the fact that the stipulation was not filed until after petitioner made its motion to dismiss render it inoperative. The court's control over an action under section 581a is not lost until an order of dismissal is made and entered. (See Rio Vista Min. Co. v. Superior Court, Supra, 187 Cal. 1, 5, 200 P. 616.) Under section 583 it has been said that 'the matter of going to trial remains subject to the stipulation of the parties until an actual order of dismissal is made, * * *.' (Estate of Thatcher, Supra, 120 Cal.App.2d 811, 814, 262 P.2d 337, 339; Koehler v. Peckham, 11 Cal.App.2d 481, 483, 54 P.2d 500; see Rio Vista Min. Co. v. Superior Court, Supra, 187 Cal. 1, 5, 200 P. 616.) The foregoing principle is particularly applicable in the case under review. Petitioner, while claiming an interest by virtue of a subsequent eminent domain action seeking to condemn the same property, instead of making itself a party to the action by filing a complaint in intervention in accordance with the procedure prescribed by section 387 of the Code of Civil Procedure (Bowles v. Superior Court, 44 Cal.2d 574, 588--589, 283 P.2d 704) and asserting, as it could have done (San Bernardino, etc., Water Dist. v. Gage Canal Co., 226 Cal.App.2d 206, 213, 37 Cal.Rptr. 856), its alleged superior or prior right to condemn the property in question, merely petitioned to 'intervene specially' for the 'single and specific purpose' of making a motion to dismiss under section 581a. In these circumstances the court was justified in exercising its control over the action despite petitioner's motion to dismiss. The only real parties to the action had executed and filed a stipulation extending time for compliance with section 581a. In addition, the fact that defendant Water Company had filed its answer to the complaint provided additional justification for the court's retention of jurisdiction over the action. (See Harrington v. Superior Court, 194 Cal. 185, 194, 228 P. 15; Bayle-LaCoste & Co. v. Superior Court, 46 Cal.App.2d 636, 644, 116 P.2d 458.)

In view of the foregoing it is unnecessary to consider whether the stipulations for partial dismissal constituted a general appearance within the meaning of section 581a.

Petitioner contends that the trial court abused its discretion in failing to exercise its inherent power to order a dismissal for an alleged lack of due diligence in the prosecution of the action. The contention is without substance.

Petitioner, after seeking and being permitted to intervene for the limited purpose of making a motion under section 581a, filed an amended motion, without leave of court, seeking to invoke the court's inherent power. Real parties in interest objected to the court's consideration of the additional ground and the objection was noted by the court. It is thus doubtful whether the issue was properly before the trial court. Assuming that the question of the court's inherent power to dismiss was properly before it, we find no abuse of discretion in the court's refusal to exercise it. Petitioner urged that Valley District's action was not filed in good faith, that there was collusion between the condemnor and the condemnee, and that Valley District never intended to prosecute the action to conclusion. However, real parties in interest filed declarations of its officers and attorneys denying any collusion and justified the delay on the pendency of litigation involving the annexation of Big Bear Lake to Valley District and the validity of the formation of petitioner Big Bear District. On the evidence before it, the trial court was clearly justified in refusing to invoke its inherent power to dismiss. An appellate court may reverse such an order only upon a clear showing of an abuse of discretion. (Rice v. Arden Farms Co., 199 Cal.App.2d 349, 358, 18 Cal.Rptr. 863; Ordway v. Arata, 150 Cal.App.2d 71, 77, 309 P.2d 919.) Petitioner has failed to meet that burden.

There remains for consideration the validity of the order barring Mr. Tobin, attorney for Big Bear District, from 'further participation in the case (Valley District's...