Hocharian v. Superior Court

• Decision Date: 19 January 1981
• Citation: 170 Cal.Rptr. 790,621 P.2d 829,28 Cal.3d 714
• Parties: , 621 P.2d 829 Serob HOCHARIAN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Sonya PEREZ, Real Party in Interest. L.A. 31309.
• Court: California Supreme Court

Page 790

170 Cal.Rptr. 790

28 Cal.3d 714, 621 P.2d 829

Serob HOCHARIAN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Sonya PEREZ, Real Party in Interest.

L.A. 31309.

Supreme Court of California, In Bank.

Jan. 19, 1981.

Rehearing Denied March 2, 1981.

James F. Callopy and Charles W. Pearce, Los Angeles, for petitioner.

No appearance for respondent.

Bledstein & Lauber and Leslie Ellen Shear, Los Angeles, for real party in interest.

BIRD, Chief Justice.

This court must decide what criteria govern operation of the mandatory dismissal provision of Code of Civil Procedure section 581a, under which a summons on a complaint must be served and return made within three years after an action is filed, in view of the implied exceptions to the statute as recognized in Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 329 P.2d 489.

I.

A third party cause of action was filed against General Motors Corporation, Paramount Chemical Corporation, Harold Beasley, dba Arco Service Station, and Does I through XXX on August 30, 1976. The complaint alleged that real party in interest (hereinafter plaintiff), Sonya Perez, was injured in an automobile accident in Whittier, California on September 3, 1975, while driving an automobile which was leased by her employer, Georgia-Pacific Corporation. The accident was alleged to have been caused by faulty brakes. Georgia-Pacific subsequently intervened in the lawsuit and sought recovery of sums paid to Ms. Perez as a result of a workers' compensation claim arising out of the accident. Plaintiff alleges that she and Georgia-Pacific cooperated with each other in the prosecution of the lawsuit, although the particular details of that cooperation are not part of the record before this court.

On September 14, 1979, General Motors took the deposition of Robert Ermer, an employee of Georgia-Pacific who usually drove the automobile in which Ms. Perez was injured. He was questioned about the maintenance work on the car and testified that defendant Beasley usually serviced the car but that on one occasion the brakes were checked by petitioner, Serob Hocharian, a Texaco service station owner. Hocharian was deposed in October of 1979 and he was served with a summons as Doe VI on November 5, 1979. This was some nine weeks after the expiration of the three-year summons service period provided for in Code of Civil Procedure section 581a. ¹

There is no question that plaintiff had no knowledge of Hocharian or his possible involvement until the Ermer deposition in September of 1979. Georgia-Pacific was apparently aware of this information in early November of 1975 when it contacted Hocharian and his insurance company seeking to recover for damages to the car. However, Georgia-Pacific never informed Ms. Perez about the potential liability of Hocharian.

After receipt of the summons, Hocharian moved to dismiss the action against him because section 581a, subdivision (a), had not been complied with. Plaintiff countered that there was an implied exception to this section, citing Wyoming Pacific Oil Co. v. Preston, supra, 50 Cal.2d 736, 740-741, 329 P.2d 489, and arguing that since the failure was due to plaintiff's inability to learn of petitioner's involvement, it was "impossible" to comply with the statute. The trial court summarily denied Hocharian's motion to dismiss and this petition for writ of mandate followed.

II.

The Legislature has mandated that a summons on a complaint must be served and return made within three years after an action is filed or the action must be dismissed. (§ 581a.) In Wyoming Pacific Oil Co. v. Preston, supra, 50 Cal.2d 736, 741, 329 P.2d 489, this court examined several of the "implied exceptions" to the "apparently mandatory" language of section 583, a statute which imposes a five-year period within which an action must be brought to trial. Wyoming Pacific held that trial courts have discretion to apply a similar set of exceptions to section 581a. (Id., at pp. 740-741, 329 P.2d 489.) However, any discretion had to be " 'exercised in accordance with the spirit of the law and with a view of subserving, rather than defeating, the ends of substantial justice.' " (Id., at p. 741, 329 P.2d 489.) Thereafter, each case was to be "decided on its own particular facts, and no fixed rule (could) be prescribed to guide the court in its exercise of this discretionary power under all circumstances." (Ibid.)

Both sections 581a and 583 impose strict time limits on plaintiffs prosecuting lawsuits. In applying these statutes, the courts recognized that an inflexible interpretation often led to unfair results. Therefore, some courts held that if compliance was impossible for jurisdictional or other reasons, noncompliance would be excused. (See generally Rose v. Knapp (1951) 38 Cal.2d 114, 117, 237 P.2d 981; Christin v. Superior Court (1937) 9 Cal.2d 526, 530, 71 P.2d 205; Kinard v. Jordan (1917) 175 Cal. 13, 15-16, 164 P. 894; Estate of Morrison (1932) 125 Cal.App. 504, 510-511, 14 P.2d 102.) This "impossibility" exception was later extended to cases in which compliance was either "impracticable" or "futile." (See Christin v. Superior Court, supra, 9 Cal.2d at p. 533, 71 P.2d 205, see also Rose v. Knapp, supra, 38 Cal.2d at p. 117, 237 P.2d 981; City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 916-917, 207 P.2d 17; Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 67, 168 P.2d 665.)

As early as 1920, the appellate courts recognized that "(t)he object intended to be attained by section 581a of the Code of Civil Procedure is, obviously, to compel reasonable diligence in the prosecution of an action after it has been commenced, and thus afford the party or parties against whom it is brought an opportunity to present such evidential support to any defense he or they may have thereto as may be available at the time the action is instituted, but which may be lost or destroyed through the death of witnesses or otherwise before the action is brought to issue by reason of an unreasonably long delay in serving the defendant or defendants with appropriate legal process notifying him or them of the pendency of the action." (People v. Kings County Dev. Co. (1920) 48 Cal.App. 72, 76, 191 P. 1004, emphasis added.)

Fifty years later, in Black Bros. Co. v. Superior Court (1968) 265 Cal.App.2d 501, 505, 71 Cal.Rptr. 344, ² this concept was reiterated. "It is the policy of the law, as declared by the courts, that when a plaintiff exercises reasonable diligence in the prosecution of his action, the action should be tried on the merits. This policy is counter-balanced, however, by the policy declared by the Legislature and the courts that when a plaintiff fails to exercise reasonable diligence in the prosecution of his action it may be dismissed by the trial court." (Emphasis added.)

Thus, the idea of reasonable diligence has been the cornerstone of statutory analysis of section 581a. (See Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 548, 105 Cal.Rptr. 339, 503 P.2d 1347; Wyoming Pacific Oil Co. v. Preston, supra, 50 Cal.2d at p. 740-741, 329 P.2d 489; Ostrus v. Price (1978) 82 Cal.App.3d 518, 521, 146 Cal.Rptr. 922; Hunot v. Superior Court (1976) 55 Cal.App.3d 660, 664, 127 Cal.Rptr. 703; McKenzie v. City of Thousand Oaks (1973) 36 Cal.App.3d 426, 429, 111 Cal.Rptr. 584; Watson v. Superior Court (1972) 24 Cal.App.3d 53, 58, 59, 100 Cal.Rptr. 684; Flamer v. Superior Court (1968) 266 Cal.App.2d 907, 911, 915, 72 Cal.Rptr. 561; Daley v. County of Butte (1964) 227 Cal.App.2d 380, 390, 38 Cal.Rptr. 693.) Exceptions to the literal language of time-limit statutes were developed in recognition not only of "objective impossibility in the true sense, but also impracticability due to excessive and unreasonable difficulty or expense." (Christin v. Superior Court, supra, 9 Cal.2d at p. 533, 71 P.2d 205.) As every litigator knows, the prosecution or defense of a lawsuit involves the difficult problem of balancing the effectiveness of any given tactic or procedure against its cost in terms of time and expense. Even the attorney who utilizes every reasonable and cost-effective discovery procedure must acknowledge the possibility that he or she will fail to discover the identity of a potential defendant within the statutory three-year period.

Certainly the state has an interest in assuring that lawsuits are prosecuted expeditiously. (Schultz v. Schultz (1945) 70 Cal.App.2d 293, 297, 161 P.2d 36.) As a result, plaintiffs are required by statutes, such as sections 581a and 583, to use reasonable diligence in bringing lawsuits to trial. However, the Legislature, cognizant of the cost-benefit balancing process inherent in the litigation system, would not have required a plaintiff to be more than reasonably diligent.

In recognition of this fact, the courts have suggested at least three "implied exceptions" to section 581a's rule of mandatory dismissal ³ impossibility, impracticability, and futility ⁴ to be applied in the trial court's discretion. (Crown Coach Corp. v. Superior Court, supra, 8 Cal.3d at pp. 546-547, 105 Cal.Rptr. 339, 503 P.2d 1347; Tresway Aero, Inc. v. Superior Court, supra, 5 Cal.3d at p. 437, 96 Cal.Rptr. 571, 487 P.2d 1211; Wyoming Pacific Oil Co. v. Preston, supra, 50 Cal.2d at p. 740, 329 P.2d 489; Watson v. Superior Court, supra, 24 Cal.App.3d at p. 58, 100 Cal.Rptr. 684.) Notwithstanding the wisdom of the Wyoming Pacific court's admonition against the formulation of "fixed rules" (50 Cal.2d at p. 741, 329 P.2d 489, see p. 792 of 170 Cal.Rptr., p. 792 of 170 P.2d, ante, it now appears necessary to articulate some general guidelines for the exercise of this discretion which are consistent with the underlying statutory intent.

In applying any of these exceptions to a given factual situation, the critical question is whether a plaintiff used reasonable diligence in prosecuting his or her case. The particular factual context or...