Flamer v. Superior Court for Los Angeles County

• Decision Date: 29 October 1968
• Citation: 72 Cal.Rptr. 561,266 Cal.App.2d 907
• Court: California Court of Appeals Court of Appeals
• Parties: Robert J. FLAMER, dba Flamer Medical Group, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Olivia FLORES, Real Party in Interest. Civ. 33208.

Page 561

72 Cal.Rptr. 561

266 Cal.App.2d 907

Robert J. FLAMER, dba Flamer Medical Group, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Olivia FLORES, Real Party in Interest.

Civ. 33208.

Court of Appeal, Second District, Division 3, California.

Oct. 29, 1968.

As Modified Nov. 27, 1968.

O'Gara & Brissenden, Robert J. Brissenden and Herbert A. Holmes, Jr., Los Angeles, for petitioner.

Jackson & Bolowitz and Marvin Bolowitz, Huntington Park, for real party in interest.

MOSS, Associate Justice.

Petitioner seeks a writ of mandate to require the respondent superior court to dismiss an action against petitioner on the ground that no return of the summons with proof of service was made within the three year period specified in section 581a of the Code of Civil Procedure. ¹

In that action, Olivia Flores (real party in interest herein) as plaintiff sued Robert J. Flamer and Flamer Medical Group, a partnership (petitioner herein), ² as defendants for damages for medical malpractice. The complaint was filed and summons issued on February 15, 1965. The summons was served on February 23, 1965, but no return of the summons with proof of service was ever filed. On March 5, 1968, the defendants filed their notice of motion for an order dismissing the action on the ground that return of service of summons had not been made within three years from the commencement of the action as required by section 581a of the Code of Civil Procedure. Respondent court denied this motion, whereupon petition commenced this proceedings.

Petitioner contends that section 581a is mandatory and jurisdictional and that the court had no power except to grant the defendants' motion to dismiss. Plaintiff as real party in interest contends that the trial court had discretion to deny the motion to dismiss on two grounds: (1) because of the suspension and later disbarment of her attorney it was impossible or impracticable for her to make return of service within three years, and (2) defendants were estopped to assert that the three year period had expired at the time they moved to dismiss.

The parties asserted the same contentions before the trial court. The trial court denied the motion but not because it agreed with plaintiff. The court expressly refused to decide whether the allegations in plaintiff's declarations filed in opposition to the motion supported her contentions. The court's stated reason for denying the motion was to enable the parties to obtain appellate review of their respective contentions immediately, through a petition for writ of mandate in this court to compel dismissal, rather than later through an appeal from an order dismissing the action. The court's disposition of the motion was incorrect from the standpoint of both sides. If the court deemed petitioner to be correct on the law, it should have granted the motion to dismiss; if it deemed plaintiff to be correct on the law, it should not have refused to rule upon the sufficiency of the excuses alleged in plaintiff's declarations. Therefore, a writ of mandate must issue. If petitioner is correct in his contentions, we must direct the respondent court to dismiss the action; if plaintiff is correct in her contentions, we must direct the court to conduct further proceedings to determine whether she has brought her case within a judicially recognized exception to section 581a.

In her declaration filed in opposition to the motion to dismiss plaintiff alleges: When her complaint was filed on February 15, 1965, she was represented by Leon L. Flam, then a member of the State Bar of California. Flam was suspended from the practice of law in California from February 19 to August 19, 1966, and was disbarred effective August 4, 1967. In plaintiff's conversations with Flam in 1965 and 1966, Flam had advised her that the case was on the calendar for trial and that he was attempting to settle the case with defendants' insurance company. In 1967, she and her husband made numerous attempts to contact Flam by telephone, but could not reach him. Plaintiff first learned of Flam's disbarment in November 1967, when she was so advised by Grady T. Dyer, a representative and general agent of defendants' insurer. Plaintiff's declaration then states: 'Mr. Dyer told me that if I was interested in talking about the settlement of the case, he would be interested in talking to me to see if we could reach a settlement. During this conversation he gave me his card and told me to discuss settlement with my husband and that he would contact me, and Mr. Dyer advised me not to contact an attorney as 99% Of all mal-practice suits are lost and I would be better off without an attorney and to make a settlement with him. That as a result of my conversation with Mr. Dyer and the representations made to me I believed a settlement could be reached and relying on this conversation, I did not retain an attorney to represent me and I waited for Mr. Dyer to contact me so I could discuss settlement of the matter with him. On February 9, 1968, I received a letter from GRADY T. DYER, a copy of which is attached hereto and incorporated herein as though set forth at length, and at that time I decided to retain an attorney.' The text of Mr. Dyer's letter is as follows: 'In November of last year, I came to the door and talked briefly with Olivia concerning the whereabouts of your attorney, Mr. Leon Flam. We have tried, in vain, to find him and I am writing to inquire as to whether or not you have heard from him regarding your case pending against Doctor Flamer. I would like to discuss the merits of the case with Mr. Flam, but, until I find him, of course, that is impossible. If you do not know his whereabouts, perhaps we could sit down together and go over the case and see if there is some possibility of disposing of it. If you wish, you may call me at the above number. In the event I do not happen to be in when you call, leave word with my answering service where you can be contacted. Thank you for your cooperation.'

Section 581a is part of a statutory scheme whose purpose is to compel reasonable diligence in the prosecution of an action after it has been commenced. (See generally Witkin, Cal.Proc. (1954 ed.), Proceedings Without Trial, §§ 27 et seq., pp. 1665 et seq.) Section 581a states in the first paragraph, relating to issuance, service and return of summons, that, subject to certain exceptions, no action 'shall be further prosecuted, and no further proceedings shall be had therein' and all actions 'must be dismissed' on motion of a party interested or on the court's own motion, 'unless the summons shall be served and return thereon made within three years after the commencement of said action.' Section 583 states that, with certain exceptions, an action 'shall be dismissed * * * on motion of the defendant * * * or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action.'

The foregoing language of section 581a has been held to be both mandatory and jurisdictional so that in a case coming within its terms the court has no authority except to dismiss. (See Dresser v. Superior Court, 231 Cal.App.2d 68, 73, 41 Cal.Rptr. 473, and cases cited; Witkin, supra, Proceedings Without Trial, § 29, pp. 1667--1668.) This construction was applied in three early cases to compel dismissal even though the delay in serving the summons was caused or requested by the defendant for his own benefit. (Siskiyou County Bank v. Hoyt, 132 Cal. 81, 64 P. 118 (defendants solicited delay, assured plaintiff that it could take judgment at any time); White v. Superior Court, 126 Cal. 245, 58 P. 450 (failure to serve summons due to 'wholly indefensible' conduct of the petitioner); Sauer v. Superior Court, 74 Cal.App. 580, 241 P. 570 (oral stipulation for continuance with statement that defendants would not take advantage of the delay).)

On the other hand, the five year provision of section 583 has been held to be not jurisdictional in the sense that the lapse of the statutory period does not deprive the court of jurisdiction to try the case. (Perry v. Magneson, 207 Cal. 617, 620, 279 P. 650; see Woley v. Turkus, 51 Cal.2d 402, 334 P.2d 12.) Witkin suggests that the latter decisions rest upon a slight difference in language of the dismissal statutes: (1) the jurisdictional language of the first part of section 581a on failure to serve or return summons: 'No action * * * shall be further prosecuted, and no further proceedings shall be had therein'; (2) the merely mandatory language of section 583; any action 'shall be dismissed' unless brought to trial within five years. (Witkin, supra, Proceedings Without Trial, § 40 pp. 1677--1678.)

We need not be concerned with the reasons for the distinction formerly drawn between the two sections because since Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 329 P.2d 489, decided in 1958, section 581a can no longer be regarded as jurisdictional. In Wyoming Pacific, the Supreme Court stated that section 581a is similar both in general purpose and language to the provisions of section 583 requiring the dismissal of actions not brought to trial within five years after being filed and expressed 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.' (50 Cal.2d at 740--741, 329 P.2d at 492.) The court noted that despite 'the apparently mandatory' language of section 583, 'this court has found many 'implied exceptions' where it was 'impracticable and futile' to bring the action to trial within the designated five-year period.' ³ The same implied exceptions must now be held to apply also to section 581a.

In Wyoming Pacific, toward the end of the three year period for return of service, the plaintiff...