Ostrus v. Price

• Citation: 146 Cal.Rptr. 922,82 Cal.App.3d 518
• Court: California Court of Appeals Court of Appeals
• Decision Date: 30 June 1978
• Parties: Roger OSTRUS, Plaintiff and Appellant, v. Helen Jean PRICE, Defendant and Respondent. Civ. 51486.

Page 922

146 Cal.Rptr. 922

82 Cal.App.3d 518

Roger OSTRUS, Plaintiff and Appellant, v. Helen Jean PRICE, Defendant and Respondent.

Civ. 51486.

Court of Appeal, Second District, Division 5, California.

June 30, 1978.

Medearis & Grimm and Dale L. Grimm, Los Angeles, for plaintiff and appellants.

Gilbert, Kelly, Crowley & Jennett and Patrick A. Mesisca, Jr., Los Angeles, for defendant and respondent.

STEPHENS, Associate Justice.

Plaintiffs Roger Ostrus and Peggy Ostrus (a minor, by her guardian ad litem) filed a complaint on March 27, 1973, against defendant Helen Jean Price, alleging damages for personal injuries resulting from an automobile accident that occurred in Glendora, California. Defendant was served with summons on July 3, 1976, and the return of service was filed by plaintiffs almost two weeks later, on July 23. On the motion of defendant, the trial court dismissed the action pursuant to Code of Civil Procedure section 581a, based upon the failure of plaintiffs to serve and return summons on the complaint within three years from the commencement of the action. Plaintiffs appeal from the order of dismissal. Concluding that defendant's absence from the State of California alone did not toll the running of the limitation period contained in section 581a and that plaintiffs did not establish an exception to the operation of the section, we affirm.

Section 581a requires summons on the complaint be served and return made within three years after the commencement of an action. ¹ As used in the section, an action is deemed commenced upon the initial filing of a complaint (Perati v. Atkinson (1964) 230 Cal.App.2d 251, 253-254, 40 Cal.Rptr. 835.) "Section 581a, Code of Civil Procedure, is part of a statutory scheme, the purpose of which is to compel reasonable diligence in the prosecution of an action after it has been commenced (citations) and 'expedite litigation and require it to be brought to conclusion within reasonable time limits.' (Citations.)" (McKenzie v. City of Thousand Oaks (1973) 36 Cal.App.3d 426, 429-430, 111 Cal.Rptr. 584, 586.)

Under section 581a, the period in which plaintiffs had to complete service and return summons expired on March 27, 1976, three years after the complaint was filed. The filing of the return of summons on July 23, 1976, occurred nearly four months after this expiration date. Unless the section's limitations period was tolled or an exception to the section's operation established, the trial court was under a mandatory duty to dismiss the action. (Busching v. Superior Court (1974) 12 Cal.3d 44, 50, 115 Cal.Rptr. 241, 524 P.2d 369; Gonsalves v. Bank of America (1940) 16 Cal.2d 169, 172, 105 P.2d 118.) Under such circumstances, a plaintiff bears the burden of establishing facts which would suspend the effect of section 581a. (Watson v. Superior Court (1972) 24 Cal.App.3d 53, 58, 100 Cal.Rptr. 684.) In this regard, the facts in support of plaintiffs' contentions on appeal are taken from affidavits attached to their opposition to defendant's motion to dismiss. No reporter's transcript of the proceedings below was requested by plaintiffs.

I

Tolling of the three-year limitations period under section 581a, subdivision(d)

Plaintiffs' affidavits contain statements which disclose that defendant, though a resident of this state at the time of the accident, moved to Nevada and Idaho and was absent from California throughout the three-year period following the filing of the action. Based solely on defendant's absence from the state, plaintiffs argue that the limitations period was tolled, pursuant to section 581a, subdivision (d).

Section 581a contains a tolling provision in subdivision (d) which provides: "The time during which the defendant was not amenable to the process of the court shall not be included in computing the time period specified in this section." Subdivision (d) was added in 1970 (Stats.1970, ch. 582, § 1, p. 1158.) Prior to 1970, section 581a 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, . . . " ² The above portion of section 581a was deleted when subdivision (d) was added.

Apparently, under the former version of section 581a, defendant's absence from California would have tolled the running of the limitation period. (See Griffin v. Bray (1968) 262 Cal.App.2d 357, 361, 68 Cal.Rptr. 649; Bank of America v. Biren (1957) 156 Cal.App.2d 368, 370, 319 P.2d 704.) However, in order to sustain plaintiffs' contention under the present version of section 581a, it would be necessary to construe "not amenable to process" as being coextensive with "absence from the state." Such an interpretation would not only ignore the changes made in the section, but would also contravene the plain meaning of the section as it now stands.

Pursuant to the 1970 amendments to section 581a the operative factor in determining whether the limitation period is tolled was changed from "absence from the state" to "not amenable to process." "It is a settled principle of statutory construction that a material change in the phraseology of a legislative enactment is ordinarily viewed as showing an intention on the part of the Legislature to change the meaning of the statute." (Farmers Ins. Exch. v. Geyer (1967) 247 Cal.App.2d 625, 634, 55 Cal.Rptr. 861, 867.) The Legislature by enacting subdivision (d) broadened the scope of section 581a to include defendants who, though absent from the state, are nonetheless amenable to process. Thus, under subdivision (d), the limitation period will be tolled only if the defendant is not amenable to process, irrespective of whether he is absent from the state. This is the plain meaning of the statute and should be followed. (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155, 137 Cal.Rptr. 154, 561 P.2d 244.) ³

People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 92 Cal.Rptr. 828, cited by plaintiffs is therefore distinguishable. The Bonelli court reversed an order dismissing plaintiff's complaint. The trial court had ordered the dismissal on the basis that, notwithstanding defendant's absence from California, the section 581a limitation period ran because he was amenable to process. However, in reversing, the Bonelli court found that section 581a as it stood prior to 1970 was controlling. The court refused to imply a right of dismissal based on amenability to process under the former version of section 581a. The court, in explaining its reasoning, indicated that it was influenced by the burden on the plaintiff that a different holding would entail. The court stated at page 135, 92 Cal.Rptr. at page 831: "There are many reasons why such an implication should not be read into the statutes at bench, particularly since when the complaint herein was dismissed the Legislature had not yet made operative the comparatively simple methods of serving out-of-state residents which, as hereinafter set forth, it provided in 1969 enactments. Such judicial 'legislation' would require a plaintiff having a cause of action against a person who has left the state to keep a constant watch on the absentee's whereabouts and on the process service laws of the foreign jurisdiction in which the defendant ultimately locates, so that the plaintiff could ascertain whether the defendant was 'amenable' to suit in this state."

However, the Bonelli court expressly limited its decision to the law as it stood in 1969, prior to the dismissal of the plaintiff's action, when it noted that "(i)n 1970, by amending section 581a to extend to defendants absent from the state but amenable to service, the three-year limitation of that section, the Legislature recognized for the first time that such right to dismissal had not theretofore existed. . . . (T)he Legislature in 1969 adopted chapter 4 of title 5 of the Code of Civil Procedure (§ 413.10 et seq.), operative July 1, 1970, providing reasonable methods and proof of out of state service. (Stats.1969, ch. 1610, § 3.)" (Id. at pp. 135-136, 92 Cal.Rptr. at p. 832.)

Code of Civil Procedure section 415.40 provided plaintiffs herein with one means of obtaining service of summons upon defendant. This method was ultimately used by plaintiffs when defendant was served on July 3, 1976. Further, defendant's motion to dismiss discloses that she possessed a California driver's license at the time of the accident. Pursuant to Vehicle Code section 17460, defendant was deemed to have consented to receive service of process "at any place where he may be found and whether or not he is then a resident of this state, with the same force and effect as if served within the state in any action brought in the courts of this state upon a cause of action arising in this state out of his operation of a motor vehicle anywhere within this state." The manner of serving process could have been accomplished pursuant to Vehicle Code section 17461. ⁴ Clearly, defendant was amenable to process as it is used in section 581a. (Cf. Hughes & Ladd, Inc. v. Rogue River Paving Co. (1975) 46 Cal.App.3d 311, 313-314, 119 Cal.Rptr. 925.)

II

Implied and statutory exceptions to section 581a

Although section 581a contains mandatory language requiring dismissal of an action, the section is subject to self-contained statutory and implied exceptions. One exception provided for in the statute is where the parties have filed a stipulation in writing that time may be extended. (Highlands Inn, Inc. v. Gurries (1969) 276 Cal.App.2d 694, 81 Cal.Rptr. 273.) The other statutory exception applies where a general appearance has been made within three years following commencement of the action. (Busching v. Superior Court, supra, 12 Cal. 44, 52-53.) Implied exceptions to section 581a have been recognized where there is estoppel (Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 96 Cal.Rptr. 571, 487 P.2d 1211) or where it is...