Quaranta v. Merlini

• Decision Date: 27 April 1987
• Citation: 192 Cal.App.3d 22,237 Cal.Rptr. 179
• Parties: Angelo QUARANTA et al., Plaintiffs and Appellants, v. Alfredo MERLINI, Defendant and Respondent. A028677.
• Court: California Court of Appeals Court of Appeals

Page 179

237 Cal.Rptr. 179

192 Cal.App.3d 22

Angelo QUARANTA et al., Plaintiffs and Appellants, v. Alfredo MERLINI, Defendant and Respondent.

A028677.

Court of Appeal, First District, Division 3, California.

April 27, 1987.

Daniel U. Smith, Dennis Natali, Graydon S. Staring, San Francisco, for plaintiffs and appellants.

John D. St. Clair, San Francisco, for defendant and respondent.

BARRY-DEAL, Associate Justice.

This is an appeal from a judgment of dismissal of an action for failure to serve and return the summons within the three-year period provided for in former Code of Civil Procedure section 581a. ¹ We must decide whether it was error for the trial court to dismiss the action even though service by publication had earlier been ordered and effected after the statutory three-year period had run. We conclude that respondent was not amenable to service, that the statute of limitations was tolled, and that service was effected pursuant to the orders granting appellants' motions to serve by publication, as provided in section 415.50. We therefore hold that the dismissal was error and must be reversed.

Facts

The action arose out of a collision in San Francisco on November 16, 1979, of an automobile operated by appellant Giovanni Toccagino, in which appellant Angelo Quaranta was a passenger, and an automobile which had been rented from Hertz Rent-A-Car (Hertz), operated by respondent Alfredo Merlini. Appellants sustained injuries as a result of the collision and filed their complaint for damages on October 24, 1980, naming Merlini and Hertz as defendants. A demand letter and settlement offer were sent to defendant Hertz, and settlement negotiations were undertaken between appellants and Hertz. Hertz rejected appellant Quaranta's settlement offer on January 25, 1982, and was served with the summons and complaint on July 7, 1982.

Appellants attempted without success to locate respondent by checking tax rolls, voter registries, telephone directories, and city directories. Additionally, appellants made inquiries as to respondent's whereabouts in conversations with Hertz's insurance adjuster, but Hertz apparently did not have that information. In late 1982 or early 1983, appellants learned through conversations with "members of the Italian community" in San Francisco that respondent, who was possibly a seaman, was a citizen of Italy and had been residing there since 1980. On January 20, 1983, appellants filed a motion to serve process on respondent in Italy by letter rogatory pursuant to section 413.10, subdivision (c). The motion was granted, and between May and November of 1983, appellants unsuccessfully attempted to serve respondent three times under two different names at three different addresses in Florence, Italy, by means set out in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, or the Hague Service Convention (20 U.S.T. 361-373 T.I.A.S. 6638). ² Service was not effected in Italy because each time service was attempted, respondent could not be located at the given address or had moved.

On June 20, 1983, counsel for Hertz wrote a letter to counsel for appellant Quaranta obtaining a stipulation by which appellants agreed to "keep open" the time for Merlini to demur, answer, plead, or otherwise move in the matter. It was the position of Hertz's counsel that Hertz wished to locate respondent in Italy and to make certain he had been served before Hertz's counsel filed respondent's answer to the complaint. On October 24, 1983, three years had expired since appellants' complaint was filed. On March 2, 1984, appellant Quaranta applied ex parte for, and was granted, an order for publication of summons. The summons was published four times in the Recorder, a San Francisco legal newspaper, between March 23 and April 13, 1984. Thereafter, appellant Toccagino also obtained an ex parte order for publication of summons in the Recorder. The summons was published four times between May 30 and June 20, 1984.

On May 7, 1984, respondent, appearing specially, ³ moved to dismiss appellants' complaint for failure to serve and return the summons within three years, pursuant to former section 581a. On June 29, 1984, the motion to dismiss with prejudice was granted. The trial court stated that respondent in fact was amenable to service and that, in any event, appellants could have served respondent by publication before the statute of limitations ran while they were attempting to serve him personally in Italy. Judgment was entered on August 23, 1984, and notices of appeal were timely filed.

Discussion

Former section 581a, repealed as of January 1, 1985, is the applicable section in this case. ⁴ That section provided, in pertinent part: "(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 action 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 the 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. ... [p] (d) 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. ... [p] (f) Except as provided in this section, the provisions of this section are mandatory and are not excusable, and the times within which acts are to be done are jurisdictional. Compliance may be excused only for either of the following reasons: [p] (1) Where the defendant or cross-defendant is estopped to complain. [p] (2) Where it would be impossible, impracticable, or futile to comply due to causes beyond a party's control. However, failure to discover relevant facts or evidence shall not excuse compliance."

Former section 581a was designed to move suits expeditiously toward trial; however, it conflicts with "the 'strong public policy' that seeks to dispose of litigation on the merits rather than on procedural grounds. [Citation.]" (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 152, 216 Cal.Rptr. 405, 702 P.2d 563.) By its own terms, former section 581a made dismissal mandatory upon expiration of the statutory period, absent some tolling of the period or excuse from compliance. Here, appellants each obtained an ex parte order from the trial court to serve the summons on their complaint by publication pursuant to section 415.50. ⁵ Both ex parte applications for those orders were made after October 24, 1983, when three years had passed since the complaint was filed. Because more than three years elapsed from the filing of the complaint to the service of summons, the burden falls on appellants to establish that the facts of this case bring it within an exception to the general rule requiring dismissal. (Paul v. Goodwin (1986) 186 Cal.App.3d 1407, 1411, 231 Cal.Rptr. 361.)

In their ex parte applications for publication of summons, appellants recognized that three years had run since they filed their complaint, but contended that their applications should be granted because respondent had not been amenable to process under former section 581a, subdivision (d). In its orders for publication of summons, the court stated that, based upon the evidence presented to it, respondent could not "with reasonable diligence be served in any other manner...." The trial court impliedly found that, as contended by appellants, respondent was not amenable to the court's process and that the time allowed for service under former section 581a was therefore tolled.

In his motion to dismiss, respondent argued that dismissal was mandatory because he had not made a general appearance, had not stipulated to an extension of time for service, and had been amenable to service, and that appellants had failed to exercise reasonable diligence in effecting service.

At the June 27, 1984, hearing, the court concluded that respondent had been amenable to service, and, in any event, appellants could have served respondent by publication within the three-year statutory period.

We find Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 329 P.2d 489 dispositive. In that case, the plaintiff appealed from, inter alia, an order dismissing its action pursuant to former section 581a for failure to serve the summons within three years. The plaintiff had filed the action on December 15, 1952, but did not attempt to serve the defendant until December 12, 1955. (Id., at p. 738, 329 P.2d 489.) The plaintiff attempted to serve the defendant several times at the defendant's home and office between December 12 and 15, but he could not be located. (Ibid.) On December 15, the plaintiff obtained an ex parte order authorizing service by publication based on the finding that the defendant was concealing himself, as authorized by former section 412. (Id., at pp. 738, 739, 329 P.2d 489.) The defendant, however, was personally served on December 22. (Ibid.)

The defendant thereafter moved to quash service and dismiss the action for failure to comply with former section 581a. In his affidavit, he stated that he had not been concealing himself. His motion was granted. (Id., at pp. 738-739, 329 P.2d 489.)

The Supreme Court reversed. The court declared that the initial order granting publication premised on a finding that the defendant had concealed himself stood as a binding adjudication which could not be countermanded by the order of dismissal. (Id., at pp. 739-740, 329 P.2d 489.) Quoting Rue v. Quinn (1902) 137 Cal. 651, 655-656, 66 P. 216, the court stated: " 'In making the order for the service by publication the [court]...