Dresser v. Superior Court In and For Contra Costa County

• Decision Date: 07 December 1964
• Citation: 231 Cal.App.2d 68,41 Cal.Rptr. 473
• Court: California Court of Appeals Court of Appeals
• Parties: Robert J. DRESSER and Norma E. Dresser, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF CONTRA COSTA, Respondent; EAST BAY MUNICIPAL UTILITY DISTRICT, a body corporate and politic of the State of California, Real Party in Interest. Civ. 22309.

Page 473

41 Cal.Rptr. 473

231 Cal.App.2d 68

Robert J. DRESSER and Norma E. Dresser, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF CONTRA COSTA, Respondent EAST BAY MUNICIPAL UTILITY DISTRICT, a body corporate and politic of the State of California, Real Party in Interest.

Civ. 22309.

District Court of Appeal, First District, Division 1, California.

Dec. 7, 1964.

Raymond H. Levy, Truman S. Waterman, Milton H. Cohn, San Francisco, Neil J. Christal, San Bruno, Andrew Schneider, San Francisco, for petitioners.

Harold Raines, John B. Reilley, Frank E. Howard, Oakland, for real party in interest.

SULLIVAN, Presiding Justice.

Petitioners Robert J. Dresser and Norma E. Dresser seek a writ of prohibition restraining the respondent superior court from taking further proceedings against petitioners in the civil action hereafter described or in lieu of such writ a writ of mandate compelling respondent court to dismiss such action. The sole question for our determination is whether the action should be dismissed as to petitioners pursuant to Code of Civil Procedure section 581a upon the ground that the summons was not served and return thereon made within three years after its commencement. We have concluded that it should be dismissed and that a peremptory writ of mandate should issue.

Following is a chronology of the procedural events here pertinent: 'On September 4, 1959, real party in interest, East Bay Municipal Utility District, a body corporate and politic of the State of California (hereafter referred to as District) commenced in respondent court the civil action in question, an eminent domain proceeding seeking to condemn certain subsurface tunnel easements under some 95 parcels of land for the transmission and distribution of water. Summons issued forthwith. At the time of the commencement of the action the property here in controversy (Parcel 84) was owned by Louis F. Comstock and Melba Jean Comstock, his wife, who were named defendants therein. ¹ On the same day, September 4, the District obtained from respondent court an order for immediate possession and use of all property described in its complaint and also recorded in the office of the county recorder of Contra Costa County a notice of the pendency of the action (lis pendens). The latter notice, however, instead of bearing the correct docket number of the proceeding (No. 76290) bore the number 76210. As a result the lis pendens was not properly indexed in the county recorder's office so that, petitioners claim, it failed to give notice to any person that the action had been filed against the Comstocks and their property. In addition, it appears that Mr. and Mrs. Comstock, though named defendants in the complaint, through inadvertence were not indexed as such in the County Clerk's records.

On April 12, 1960, Mr. and Mrs. Comstock filed their answer to the complaint in condemnation. On September 27, 1963, petitioners Mr. and Mrs. Dresser, allegedly without knowledge of the condemnation proceedings, purchased Parcel 84 from Mr. and Mrs. Comstock. On December 9, 1963, the District dismissed the action as to defendants Mr. and Mrs. Comstock 'insofar as their interests relate to Parcel 84, described in the complaints on file herein.'

On December 12, 1963, and more than four years after the commencement of the action, petitioners were served with summons and complaint, together with a copy of the above-mentioned order for immediate possession of the property. It is conceded that the copies of such documents served on petitioners bore the notice that they were being served in the action as the persons sued therein under the fictitious names of Doe One and Doe Two (Code Civ.Proc. § 474). It is alleged in the petition before us and not denied by the District that at the time petitioners were served no supplemental pleadings had been filed and no order had issued either for bringing in new parties or for bringing in parties whose interests in the property accrued subsequent to the filing of the complaint.

After having obtained various stipulations and orders extending their time to plead, petitioners on July 6, 1964, filed in respondent court a 'Notice of Motion and Motion to Quash & Dismiss' on the ground that summons had not been served on them within 'three years from the date of issuance thereof,' said motion to be heard on July 20, 1964. On July 16, 1964, the District filed a notice of motion for orders striking petitioners aforesaid motion, vacating certain orders extending petitioners' time to plead and directing the entry of petitioners' defaults, said motion being also noticed for hearing on July 20, 1964. ²

On or about July 24, 1964, respondent court granted the District's motion and made all orders sought thereby, including an order directing the entry of petitioners' default. Petitioners' subsequent motion to set aside the default and to permit filing of an answer was denied by the court on September 1, 1964. On September 11, 1964, respondent court entered an Interlocutory Judgment of Condemnation as to Parcel 84, based upon the entry of petitioners' defaults, and ordering among other things that the District pay into court for the benefit of petitioners the sum of $145, together with interest, in full payment of the interest condemned in petitioners' property and all damages suffered thereby.

On September 14, 1964, petitioners filed herein the instant petition. We issued an alternative writ of mandate on October 9, 1964.

Code of Civil Procedure section 581a ³ provides in relevant part as follows: 'No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced 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, whether named in the complaint as a party or not, unless summons shall have issued within one year, and all such actions must be in like manner dismissed, 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.' (Emphasis added.)

The statute is mandatory and jurisdictional and, as to any action falling within its compass, the court 'has power to act only in a certain way, that is, by ordering a dismissal.' (Gonsalves v. Bank of America (1940) 16 Cal.2d 169, 172, 105 P.2d 118, 120; Modoc Land & Live Stock Co. v. Superior Court (1900) 128 Cal. 255, 256-257, 60 P. 848; Vrooman v. Li Po Tai (1896) 113 Cal. 302, 304-305, 45 P. 470 (under former § 581, subd. 7); Palmer v. Superior Court (1961) 192 Cal.App.2d 302, 303-304, 13 Cal.Rptr. 301; Carter v. Superior Court (1960) 187 Cal.App.2d 1, 3, 9 Cal.Rptr. 140; Lambert v. Conrad (1960) 185 Cal.App.2d 85, 95-97, 8 Cal.Rptr. 56; Beckwith v. County of Los Angeles (1955) 132 Cal.App.2d 377, 378-379, 282 P.2d 87; Frohman v. Bonelli (1949) 91 Cal.App.2d 285, 287, 204 P.2d 890; City of San Jose v. Wilcox (1944) 62 Cal.App.2d 224, 226-227, 144 P.2d 636; Cook v. Justice's Court (1936) 16 Cal.App.2d 745, 748, 61 P.2d 357; Pearson v. Superior Court (1932) 122 Cal.App. 571, 574-575, 10 P.2d 489.)

In the instant case, as we have already pointed out, summons was not served on petitioners within the three-year period. The parties filed no stipulation in writing extending the statutory period. No contention is made that petitioners made a general appearance by answer, demurrer or written notice of appearance (see § 1014); or that the securing by petitioners of stipulations and orders extending time to plead constituted a general appearance within the exception of the statute, as it indeed could not be contended (Vrooman v. Li Po Tai, supra, 113 Cal. 302, 305, 45 P. 470; Davenport v. Superior Court (1920) 183 Cal. 506, 509-510, 191 P. 911; Chilcote v. Pacific Air Transport (1937) 24 Cal.App.2d 32, 35, 74 P.2d 300); or that failure to serve summons on petitioners resulted from their absence from the state or their having secreted themselves within the state. ⁴

Real party in interest (District) contends that a writ of mandate is not available to petitioners in the instant case. It is urged that such writ will issue only to compel performance of a duty on the petition of a party beneficially interested and that petitioners have not shown a sufficient beneficial interest to warrant 'the extraordinary relief of mandatory dismissal.' The point is without merit. The cases referred to by us make clear that where the summons has not been served and return thereon made within the prescribed period, the matter not coming within any of the exceptions to the statute, the action must be dismissed by the court since it has no power to act in any other way. (Gonsalves v. Bank of America, supra, 16 Cal.2d 169, 172, 105 P.2d 118, and other cases, supra.) As this court said in Palmer, supra, ' § 581a clearly provides for a mandatory dismissal, not a dismissal resting in the discretion of the court.' (192 Cal.App.2d at p. 303, 13 Cal.Rptr. at p. 302.) The section means what it says. (Carter v. Superior Court, supra, 187 Cal.App.2d 1, 3, 9 Cal.Rptr. 140.) Either a writ of mandate to compel dismissal of an action or a writ of prohibition to prevent further proceedings is an appropriate remedy where there is a failure to serve and return the summons within the three-year period prescribed by section 581a (Carter v. Superior Court, supra, 187 Cal.App.2d 1, 2, 9 Cal.Rptr. 140) as well as where there is a failure to bring an action to trial within the five-year period Co. v. Superior Court (1963) 223 A.C.A. Co. v. Superior Court (1959) 52 Cal.2d 666, 669, 343 P.2d 919; Bella Vista Development Co. v. superior Court (1963) 223 A.C.A. 647, 651, 36 Cal.Rptr. 106; 3 Witkin, Cal.Procedure, p. 2569.)

In further support of its above...