Ford Motor Co. v. County of Tulare

• Decision Date: 03 August 1983
• Citation: 145 Cal.App.3d 688,193 Cal.Rptr. 511
• Parties: FORD MOTOR CO., Plaintiff and Appellant, v. COUNTY OF TULARE, Defendant and Respondent. Civ. 7199.
• Court: California Court of Appeals Court of Appeals

Page 511

193 Cal.Rptr. 511

145 Cal.App.3d 688

FORD MOTOR CO., Plaintiff and Appellant, v. COUNTY OF TULARE, Defendant and Respondent.

Civ. 7199.

Court of Appeal, Fifth District, California.

Aug. 3, 1983.

Hearing Denied Oct. 20, 1983.

[145 Cal.App.3d 689] Munger, Tolles & Rickershauser, and Peter R. Taft, Los Angeles, for plaintiff and appellant.

[145 Cal.App.3d 690] Thomas D. Bowman, County Counsel of Tulare County, Lita O'Neill Blatner, Asst. County Counsel, Steven B. Bassoff and Gary S. DeMalignon, Deputy County Counsels, Visalia, for defendant and respondent.

OPINION

THE COURT. ^*

This is an appeal by Ford Motor Company from an order granting dismissal of its action for refund of property taxes paid to Tulare County. The Superior Court granted dismissal of the complaint because the summons was not returned within one year after the commencement of the action as required by Revenue and Taxation Code section 5147. ¹

Section 5147 provides that the court, on its own motion or motion of any defendant, must dismiss an action unless the summons is issued, served and returned within one year after commencement of the action. ² On December 2, 1980, appellant filed an action for refund of property taxes on certain unfinished motor truck chassis. A summons was issued the same date. Service of summons was made by mail on December 9, 1980, and respondent returned the signed notice and acknowledgement of receipt to appellant on December 23, 1980. On December 27, 1980, respondent answered the complaint by filing a general denial.

The return of summons had not occurred by December 3, 1981. Respondent filed a motion to dismiss pursuant to section 5147 on December 14, 1981, and the motion was granted by the Superior Court on February 23, 1982.

By analogizing section 5147 to Code of Civil Procedure section 581a ³, appellant points out that were the instant case subject to the general civil litigation dismissal provisions of Code of Civil Procedure section 581a, the action would not have been subject to dismissal due to respondent's answer, i.e., general appearance, in the action. Appellant further argues that implied exceptions for waiver and estoppel precluded dismissal.

Respondent maintains the action was properly dismissed, citing the absence of the general appearance exception in the Revenue and Taxation statute. The legislative history of section 5147, which was before the court below, showed that a prior draft (and statute number) of the Revenue and Taxation statute eventually numbered 5147 contained the language of the general appearance exception found in Code of Civil Procedure section 581a. The language was eliminated when the final version of the statute was enacted. ⁴ Respondent argues this evinces a strong intent on the part of the Legislature that the general appearance exception not apply in tax refund actions.

We find respondent's argument persuasive. The legislative history of section 5147 reflects that the Legislature specifically rejected language which would have created a general appearance exception to the one-year service and return deadline. It cannot be argued that the omission of the general appearance exception from section 5147 was an oversight. It was intentional. It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded. (Bott v. American Hydrocarbon Corporation (5th Cir.1972) 458 F.2d 229, 233; City of Burbank v. General Electric Company (9th Cir.1964) 329 F.2d 825, 832; 2A Sands, Sutherland Stat. Const. (4th ed. 1973) Intrinsic Aids, § 47.38, p. 173.)

As noted in an analogous situation in Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 607, 45 Cal.Rptr. 512: "The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision. [Citations.]" (See also Estate of Simpson (1954) 43 Cal.2d 594, 600, 275 P.2d 467; Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 8, 125 Cal.Rptr. 408; Topps & Trowsers v. Superior Court (1973) 31 Cal.App.3d 102, 105, 107 Cal.Rptr. 60.)

Only one reported case has interpreted section 5147's mandatory one-year time limitation for service and return of summons: Synanon Foundation, Inc. v. County of Marin (1982) 133 Cal.App.3d 607, 184 Cal.Rptr. 129 (hereafter Synanon ).

In Synanon, the foundation filed an action for refund of property taxes paid to four different counties. Service of summons was made almost one-year after the filing but within the statutory period. However summons was not returned until one-year and six days after the action was filed. Rather than moving to dismiss at that point, the counties answered and thereafter participated in discovery (e.g., interrogatories, requests for documents). An at issue memorandum was filed by the foundation some seven months after the counties were served. A trial setting conference was noticed. It was not until one-year and nine-months after the service of summons and almost three years after the action was filed that respondent State Board of Equalization filed a motion to dismiss the action because of the foundation's failure to return the summons within one-year.

The Court of Appeal reversed the trial court's order dismissing the complaint. Analogizing to cases finding waiver or estoppel under Code of Civil Procedure section 581a, it reasoned that by filing answers, setting forth affirmative defenses and participating in discovery--all of which took place after the one-year period for return of service had passed--the respondents indicated an intent to submit the issues to the court for a determination on the merits. Therefore, the right to dismissal under section 5147 was deemed waived. The court emphasized the long period of delay before the state and counties moved for the dismissal. ⁵

Synanon is distinguishable from the instant case and its rationale is inapplicable. Respondents in Synanon were served near the end of and answered after the one-year statutory deadline. Rather than moving to dismiss before filing an answer, they sat on their rights. In addition to answering, the counties proceeded to participate in discovery and failed to protest the filing of an at issue memorandum by the foundation. Notice of the trial setting conference had issued before the State Board of Equalization moved to dismiss almost three years after the action had been filed.

Respondent herein filed a prompt answer. Unlike in Synanon, respondent moved expeditiously to dismiss at the first opportunity. Moreover, no further action in this case of the sort found in Synanon is reflected in the record: no discovery, no at issue memorandum, no scheduling of a trial setting conference.

It is worthy of note that the court in Synanon did not base its holding on the mere filing of an answer by the counties. As previously noted, the Synanon court emphasized the lengthy delay and the advanced stage of the litigation at the time the state moved to dismiss. (Synanon, supra, 133 Cal.App.3d at p. 614, 184 Cal.Rptr. 129.)

We are aware of the Supreme Court's admonition in Hocharian v. Superior Court (1982) 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829 that in dealing with mandatory dismissal statutes each case should be decided on its own particular facts when determining whether implied exceptions such as waiver and estoppel apply. To find a waiver or estoppel in the instant case would be to hold a waiver and/or estoppel will be found whenever an answer is filed in a property tax refund action. No conduct on the part of respondent herein otherwise supports invocation of these doctrines. Such a holding under the instant facts would amount to a judicial rewriting of the statutory exception contained in section 5147 to add as an additional exception a general appearance by a respondent. The legislative history of section 5147 establishes this is not an exception the Legislature intended in the revenue and taxation area. To so hold in this case would eviscerate the obvious legislative intent.

We therefore hold that the filing of a prompt answer to a complaint, standing alone, is not the type of conduct on the part of a defendant from which an estoppel will spring under section 5147. No conduct on the part of the respondent prevented appellant from returning service of summons for over 11 months after receiving respondent's answer. Appellant's lack of diligence in returning the service of summons and pursuing the litigation is not attributable to respondent. ⁶

As noted in General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492, the purpose of dismissal statutes such as section 5147 is to "promote the trial of cases before evidence is lost, destroyed, or the...