Lesko v. Superior Court
| Decision Date | 07 January 1982 |
| Citation | 179 Cal.Rptr. 595,127 Cal.App.3d 476 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Clarence A. LESKO, M.D., Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF MARIN, Respondent, Jose LOPEZ, a minor, by Fae J. Lopez, his Guardian ad Litem, Real Parties in Interest. Civ. 53247. |
D. Stuart Candland, Craddick, Candland & Conti, Walnut Creek, for petitioner.
Richard H. Jordan, Novato, for real parties in interest.
This petition challenges a trial court refusal to dismiss an action for failure to serve and return service of summons within three years of filing the action (Code Civ.Proc., § 581a). 1 We issued an alternative writ.
The lawsuit underlying this petition is for alleged medical malpractice in the delivery of Jose Lopez on January 14, 1970. Under the provisions of section 340.5, 2 Jose Lopez was entitled to bring suit any time before his eighth birthday. Pursuant to the notice requirements contained in section 364, 3 plaintiff was first required to inform defendant of the legal basis of the claim and the type of loss sustained. This Jose Lopez did by letter addressed to defendant, dated January 13, 1978, the day before his eighth birthday.
The same day, Jose Lopez, by his Guardian Fae J. Lopez, filed a complaint for damages for medical malpractice, naming only Doe defendants. Apparently, the naming of only Doe defendants was intended to avoid violation of the 90-day notice requirement (see § 364, subdivision (a)). This complaint was never served.
The 90-day notice sent to petitioner was turned over to petitioner's counsel. By letter of January 27, 1978, petitioner's counsel wrote to real parties' counsel, indicating that he would be willing to discuss the case prior to suit being filed. Obviously, petitioner's counsel was unaware that real parties had filed a Doe complaint.
On April 7, 1978, real parties' counsel answered the letter of January 27, 1978, by indicating that if petitioner had 4 On April 11, 1978, real parties filed a first amended complaint in the same action, naming petitioner as defendant but made no attempt to effect service.
Thereafter, for approximately three years, there was an exchange of letters between respective counsel. On September 19, 1979, counsel for real parties, in writing, offered to settle the case against petitioner for $250,000 and stated that the offer would be "held open through and including October 15, 1979." On October 10, 1979, counsel for petitioner answered by saying that real parties' offer would be given serious consideration, but before a decision could be made, petitioner wished to have a medical examination of the real party in interest, Jose Lopez. Counsel for real parties agreed. For various reasons, that examination was not completed until March 18, 1980. On November 24, 1980, counsel for real parties wrote to petitioner's counsel, stating that he desired a response to the longstanding offer of settlement ($250,000) and that a response should be available by January 15, 1981. On January 22, 1981, by letter, counsel for petitioner rejected the offer but indicated that he was still willing to negotiate at some lesser amount.
It appears that real parties terminated settlement negotiations at that point and then proceeded to serve petitioner on April 8, 1981 with the first amended complaint. 5
Petitioner then filed a notice of motion to quash service of summons and complaint. In his moving papers he sought alternatively to dismiss the lawsuit for failure to return service within three years of filing the complaint (§ 581a) or the sustaining of a demurrer for violation of the statute of limitations of eight years (§ 340.5). The court, in its order denying the motion to dismiss and overruling the demurrer, stated that:
I. Has Hocharian v. Superior Court (1981) 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829 Added a New Implied Exception to Code of Civil Procedure Section 581a, Whereby a Diligent Plaintiff May Avoid Dismissal Without Showing Impracticability, Impossibility or Futility or the Facts Constituting an Estoppel?
1. Preliminarily, we must determine whether the three-year period prescribed in section 351a runs from the filing of the John Doe complaint on January 13, 1978, as the trial court held or from the filing of the amended complaint on April 11, 1978 as real parties contends. For, if the latter, service was effected within three years.
Real parties assert that the amended complaint was, for all practical purposes, the first pleading filed, because it is the first pleading which, under section 364, would have allowed petitioner to be named as a defendant. Therefore, "the normal rules on naming fictitious defendants, relation back of amendments to original pleadings, and commencement of a cause of action, should not apply," real parties argue.
In effect, real parties contend the January 13, 1978 complaint was a nullity because of the provisions of section 364, subdivision (a).
Further, real parties point out they could have filed a new complaint on April 11, 1978 as if to argue that because they could have done so, they should be deemed to have done so.
The trial court correctly rejected these arguments when made below. Regardless of what real parties could have done, what they did was file a formal complaint on January 13, 1978 and amend that same complaint on April 11, 1978. The amendment alleged the same operative facts and substituted the name of petitioner for a previously named Doe defendant. Contrary to real parties' assertion that petitioner's name could not have been used in any earlier pleading; the 90-day notice requirement of section 364 is not jurisdictional. Failure to comply merely furnishes a ground for discipline by the State Bar of California in any case brought to its attention. (§ 365; Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 162 Cal.Rptr. 874.)
2. We come now to the Hocharian decision.
Section 581a, subdivision (a) provides:
(a) No action heretofore or hereafter commenced by complaint 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 as a party or not, unless the summons on the complaint is served and return 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 or the party against whom the action is prosecuted has made a general appearance in the action.
Despite the apparently mandatory language of section 581a, subdivision (a), prior to Hocharian, a number of implied exceptions developed to the requirement of mandatory dismissal. Thus where service of summons was impossible, impractical or would have been futile, mandatory dismissal is not required. And where the defendant by his conduct lulled the plaintiff into not effecting service, the defendant may be estopped to assert the dismissal requirement of section 581a.
Then came Hocharian. In Hocharian, the plaintiff was injured while driving a car leased by her employer, Georgia-Pacific Corporation. Allegedly, the accident was caused by faulty brakes. On August 30, 1976, plaintiff sued General Motors, one Beasley, the operator of an Arco Station where the car was usually serviced, another named defendant and a number of Doe defendants. In September 1979, more than three years after the filing of the complaint, General Motors deposed an employee of Georgia-Pacific who usually drove the car in question. He testified that while Beasley usually serviced the car, there had been one occasion when the brakes had been inspected by Hocharian, the operator of a Texaco Service Station. In October 1979, Hocharian was deposed. Thereafter, in November 1979, Hocharian was served with summons as a Doe defendant. Service was thus made some nine weeks after the three-year period specified in section 581a had elapsed.
In the course of the Hocharian opinion, the court stated, "(T)he courts have suggested at least three 'implied exceptions' to section 581a's rule of mandatory dismissal-impossibility, impracticability, and futility-to be applied in the trial court's discretion. (Citations.) ... (I)t now appears necessary to articulate some general guidelines for the exercise of this discretion which are consistent with the underlying statutory intent.
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