Hill v. Superior Court for Los Angeles County

• Decision Date: 13 June 1967
• Citation: 59 Cal.Rptr. 768,251 Cal.App.2d 746
• Court: California Court of Appeals Court of Appeals
• Parties: Raymond Kenneth HILL, Safeway Stores Incorporated, a Corporation, Petitioners, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Christmas PARR, Real Party in Interest. Civ. 31449.

Page 768

59 Cal.Rptr. 768

251 Cal.App.2d 746

Raymond Kenneth HILL, Safeway Stores Incorporated, a Corporation, Petitioners, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Christmas PARR, Real Party in Interest.

Civ. 31449.

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

June 13, 1967.

Chase, Rotchford, Drukker, Bogust & Tucker and Vincent Fish, Los Angeles, for petitioners.

No appearance for respondent.

Behymer, Hoffman & Hunt and Ralph W. Hoffman, Los Angeles, for real party in interest.

McCOY, Justice pro tem. ^*

This is a petition for a writ of mandate to require the superior court to dismiss the action now pending before it entitled Parr v. Hill and Safeway Stores, number SEC 1992 (S), because the failure of plaintiff to comply with section 581a, Code of Civil Procedure. That section provides that no action shall be further prosecuted and all actions '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, * * * 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. * * * provided, that, * * * no dismissal shall be had under this section as to any defendant because of the failure to serve summons on him during his absence from the State, or while he has secreted himself within the State to prevent the service of summons on him.' The petition is opposed by the real party in interest who is the plaintiff in the action.

Plaintiff, Christmas Parr, a realtor, was injured in a collision on September 17, 1962, between his automobile which was stopped for a traffic signal and a truck owned by Safeway Stores operated by one Hill as its agent. On October 30, 1962, Parr's attorneys advised Travelers Insurance Company, the insurance carrier for Safeway Stores, by letter of the happening of the accident and that they would make further contact after the extent of Parr's injuries were ascertained.

Plaintiff's complaint was filed and summons issued on August 28, 1963. Hill was served with the summons and complaint on September 8, 1963, and shortly thereafter plaintiff's attorney, Ralph Hoffman, notified William Harmon, Travelers' adjuster, of the filing of the action and of the service of the summons on Hill. On being informed by Harmon that Travelers was ready to discuss settlement, Mr. Hoffman orally assured Mr. Harmon that it would not be necessary to plead as long as settlement negotiations were active. On September 24, 1963, Mr. Hoffman by letter confirmed the filing of the action, but said nothing of the open extension of time to plead. The defendant Safeway Stores was never served with summons.

Negotiations with Travelers for settlement of Parr's claim continued until late in 1965 or possibly until 'the early part of 1966.' In October 1964 Travelers' adjuster had informed Parr's attorneys that Travelers was not denying liability and that the only issue was the amount of Parr's claim. The record indicates that as late as September 28, 1965, plaintiff was still demanding $49,000, but that Mr. Hoffman, his attorney, was advising him 'to come down to a $30,000.00 figure if a settlement could be made, but this seems to be probably an impossibility under the present situation,' because, according to Mr. Hoffman's letter of that date to Parr, Mr. Harmon had 'eventually (come) up to $10,000.00, which he expressed as very close to the limit at which the company would go.' However, Mr. Harmon denies that he had made any offer of settlement. At the same time Mr. Hoffman denies that, at their conference on September 28, 1965, Mr. Harmon suggested to him 'that he should serve his lawsuit.'

On November 11, 1965, Mr. Hoffman and Mr. Harmon again discussed a settlement of the case. At this conference Mr. Harmon indicated to Mr. Hoffman 'that it would be necessary for plaintiff to develop more detailed information from his income tax returns for the last five years, to substantiate his claim.'

In his declaration in opposition to defendants' motion to dismiss Mr. Hoffman says, in substance, that after the meeting of November 11, 1965, he asked plaintiff's wife, who was also his accountant and bookkeeper, to develop the desired information, but that, 'In the early part of 1966,' before she was able to do so, 'MRS. PARR was in a serious automobile accident herself, and was hospitalized and unable to work for several months, after which time she had to undergo serious abdominal surgery, which again made it impossible for her to work for another period of several months.' Mr. Hoffman alleges further that in 'the early part of 1966 MR. HARMON called me to ascertain if I had the additional information for him, and I advised him of the condition of MRS. PARR, and that the information would be made available to him as quickly as she was physically able to prepare same.' Mr. Harmon denies that he had any communication from Mr. Hoffman after November 11, 1965. Assuming that Mr. Hoffman is correct in alleging that he had a call from Mr. Harmon 'In the early part of 1966,' it seems clear from the whole of Mr. Hoffman's declaration that, at most, he could then have advised Mr. Harmon only of Mrs. Parr's automobile accident in 'the early part of 1966.' There is no showing that Mr. Hoffman thereafter advised Mr. Harmon of Mrs. Parr's hospitalization and inability to work for several months by reason of her accident, or of her subsequent surgery which made it impossible for her to work for another period of several months.

Viewing the record as we find it in a light most favorable to plaintiff there is no doubt that his attorney made no effort to communicate with Mr. Harmon after 'the early part of 1966,' although he knew that any further negotiations for settlement depended on his furnishing the information requested by Mr. Harmon in November 1965, that furnishing of that information was being unavoidably delayed for many months because of Mrs. Parr's physical condition, and that time was running against his client's interests. Plaintiff's position is in no way benefited by the fact that Travelers 'did not at any time, either orally or in writing, advise (his attorney) that it was ceasing to negotiate settlement of this case, or that plaintiff's claim was rejected,' since Travelers was under no obligation to so advise Mr. Hoffman.

No appearance was made in court by either of the defendants until December 1966 when both Hill and Safeway Stores joined in a motion to dismiss the action for the failure of Parr to serve and return summons within three years after August 28, 1963, the date on which the action was commenced. This motion was denied by the trial court and defendants have now petitioned this court for relief.

In support of the motion in the trial court defendants argued that the three-year limitation of section 581a as to service and return of summons is mandatory. They there relied primarily on Gonsalves v. Bank of America, 16 Cal.2d 169, 105 P.2d 118, as quoted in later cases, where it was held that the provision of section 581a here under discussion 'is 'jurisdictional' in the sense that the court has no power to excuse the delay * * *. It has power to act only in a certain way, that is, by ordering a dismissal.' (P. 172, 105 P.2d p. 120.)

Parr's opposition to the motion in the trial court was based on the doctrine of equitable estoppel. His contention was that the doctrine was available to him to prevent defendant from relying on the statute of limitations as a defense. In our opinion the doctrine of equitable estoppel is not applicable to the case before us. Defendants here do not and could not rely on the statute of limitations as a defense, since the action was filed well within a year after the accident. As the court said in J. A. Thompson & Sons, Inc. v. Superior Court, 215 Cal.App.2d 719, at page 722, 30 Cal.Rptr. 471, at page 473, 'the purpose of the statute of limitations is distinct and apart from that of the time limitations contained in 581a. The statute of limitations is concerned only with the timeliness of instituting an action, while section 581a is concerned with the speedy prosecution of an action after such action has already been commenced.' ¹

For present purposes we assume that upon a sufficient factual basis the doctrine of equitable estoppel might be invoked to avoid the mandatory requirements of section 581a that an action 'must be dismissed by the court * * * on its own motion, or on the motion of any party interested * * *' unless the summons is served and return thereof made within the specified three-year period. However, giving full credence to every averment of fact made by plaintiff in opposition to the motion to dismiss, the record provides no sufficient basis for the application of the doctrine.

In opposition to the petition before us plaintiff urges on the authority of Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 329 P.2d 489, that the trial court was vested with discretion in determining whether to dismiss an action because of the failure of the plaintiff to serve and return the summons within three years after the commencement of the action as provided in section 581a, Code of Civil Procedure. In our opinion the limited discretion conferred on the trial court by Wyoming Pacific is not broad enough to save the day for petitioner.

As enacted in 1889, former subdivision 7 of section 581, Code of Civil Procedure, read: '(N)o action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall 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...