Synanon Foundation, Inc. v. County of Marin

• Decision Date: 07 July 1982
• Citation: 133 Cal.App.3d 607,184 Cal.Rptr. 129
• Court: California Court of Appeals Court of Appeals
• Parties: SYNANON FOUNDATION, INC., Plaintiff and Appellant, v. COUNTY OF MARIN, County of Tulare, and State Board of Equalization, Defendants and Respondents. 1 Civ. 54270.

Page 129

184 Cal.Rptr. 129

133 Cal.App.3d 607

SYNANON FOUNDATION, INC., Plaintiff and Appellant, v. COUNTY OF MARIN, County of Tulare, and State Board of Equalization, Defendants and Respondents.

1 Civ. 54270.

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

July 7, 1982.

Hearing Denied Sept. 1, 1982.

Philip C. Bourdette, Andrew J. Weill, Badger, for plaintiff and appellant.

Douglas J. Maloney, Marin County Counsel, Allen A. Haim, Chief Deputy, San Rafael, for Marin County.

George Deukmejian, Atty. Gen., Edward P. Hollingshead, Charles C. Kobayashi, Deputy Atty. Gen., Sacramento, for State Bd. of Equalization.

Thomas D. Bowman, County Counsel of Tulare, Steven B. Bassoff, Deputy County Counsel, Visalia, for Tulare County.

MILLER, Associate Justice.

This is an appeal by Synanon Foundation from an order granting dismissal of its action for refund of property taxes paid to Tulare, Los Angeles, Alameda, and Marin Counties. The superior court granted dismissal of the complaint because the summons was not returned within one year after the commencement of the action as required by Revenue and Taxation Code section 5147. ¹ Despite the mandatory language of that section, we find that the provisions of section 5147 may be waived by voluntary actions of the defendant indicating an unequivocal intent to submit the issues to a trial on the merits.

Section 5147 provides that the court, on its own motion or motion of any defendant, must dismiss an action unless the summons is issued, served and returned within one year after commencement of the action. ² On March 14, 1978, appellant filed an action for refund of property taxes alleging that its airplanes and boats were used for religious, educational and charitable purposes and were thereby exempt from taxation. There is no question that the service of summons was made within the one-year period. ³ However, the return of summons did not occur within one year of the commencement of the action as required by section 5147. The return was not made until March 20, 1979, one year and six days after the action was filed.

All respondents answered the complaint without raising any objections to the failure of appellant to make a timely return of summons. Discovery proceeded with appellant serving respondents with interrogatories and requests for production of documents. All respondents answered these interrogatories and provided documents in response to these requests without objection to the delay in returning the summons. On October 15, 1980, appellant filed its memorandum that civil case is at issue. In that memorandum, appellant represented that "all essential parties have been served with process or have appeared herein and that this case is at issue as to all such parties." No respondent raised any objection to this memorandum.

On November 21, 1980, the Marin County superior court sent notice to all parties of a trial setting conference to be held on February 4, 1981. On December 8, 1980, one year and nine months after the service of summons and almost three years after the action was filed, respondent State Board of Equalization filed a motion to dismiss the action because of appellant's failure to return the summons within one year as required by section 5147. Respondents County of Marin and County of Tulare joined in the motion. After a hearing on respondents' motion, the trial court entered an order to dismiss appellant's complaint. The court concluded that the language of section 5147 mandated a dismissal of the action, that the conduct of the respondents in filing answers and participating in discovery did not constitute a stipulation in writing that time might be extended, and that there was no conduct on the part of the respondents that would constitute an estoppel. The primary question presented for our determination is whether the trial court erred in failing to consider the doctrine of waiver as an implied exception to the one-year dismissal provision of section 5147.

We have found no case interpreting the mandatory one-year time limitation for service and return of summons set out in section 5147. However, Code of Civil Procedure section 581a, subdivision (a), ⁴ mandating dismissal of civil actions unless service and return is made within three years after the action is filed, contains substantially similar language. Under general rules of statutory construction, we may consider the judicial interpretation of similar words used in another statute dealing with analogous subject matter. (People v. Corey (1978) 21 Cal.3d 738, 743, 147 Cal.Rptr. 639, 581 P.2d 644; Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 800, 152 Cal.Rptr. 836; Estate of Hoertkorn (1979) 88 Cal.App.3d 461, 465-466, 151 Cal.Rptr. 806.) In this regard, we consider the considerable body of case law developed on the mandatory dismissal provision of Code of Civil Procedure section 581a, subdivision (a) (hereinafter "section 581a") to be especially pertinent to the question before us. Neither appellant nor respondents challenge this thesis.

Section 5147 expressly creates a single statutory exception to the directive that an action must be dismissed when a plaintiff fails to serve and return the summons within one year. "(W)here the parties have filed a stipulation in writing that the time may be extended" noncompliance with the one-year time limitation will be excused. Appellant urges that the answer and response to discovery filed by respondents constitute a "written stipulation" extending the time for returning the summons.

In the early case of Miller & Lux Inc. v. Superior Court (1923) 192 Cal. 333, 340, 219 P. 1006, our Supreme Court considered the rationale underlying the express "written stipulation" exception set forth in Code of Civil Procedure sections 583 and 581a: ⁵ "The provision that a written stipulation be entered into was intended to preclude all disputes, with their attendant charges and countercharges of overreaching and unethical conduct, by a requirement that clear and uncontrovertible evidence be presented to the court that the statutory time was deliberately intended to be extended by both parties."

We cannot ascertain anything in the record before us that evidences a clear intention on the part of respondents to extend the statutory time for the return of summons. Indeed, there is nothing to indicate that respondents were even aware of section 5147 until their motion to dismiss was filed. The filing of an answer to the complaint and responding to discovery requests reflects respondents' intention to actively participate in the litigation. However, this activity falls far short of evidencing a clear and uncontrovertible intent to waive the mandatory time provisions of section 5147 undoubtedly contemplated by the Legislature in drafting this exception.

Since the single statutory exception to the mandate of section 5147 is inapplicable to this case, we must examine whether there exists any countervailing considerations that can defeat a mandatory dismissal of this action for noncompliance with the statutory time frame established for the return of summons. The striking metamorphosis of judicial attitude toward the parallel language of section 581a is particularly instructive in this examination.

Early cases held that this section was mandatory and jurisdictional and exceptions not expressly set out by statute were not recognized. (Gonsalves v. Bank of America (1940) 16 Cal.2d 169, 172, 105 P.2d 118; Cahn v. Jones (1950) 101 Cal.App.2d 345, 348, 225 P.2d 570.) This rigid view of section 581a has given way to a viable body of judicially created exceptions to the mandatory directive of section 581a to be applied " 'with a view of subserving, rather than defeating the ends of substantial justice.' " (Wyoming Pacific Oil Co. v. Preston, supra, 50 Cal.2d 736, 741, 329 P.2d 489.) Implied exceptions to the strict time limits of section 581a have been recognized where compliance with the manner of service prescribed in the statute was impossible, impracticable, or futile. (Busching v. Superior Court (1974) 12 Cal.3d 44, 53, 115 Cal.Rptr. 241, 524 P.2d 369; Borglund v. Bombardier, Ltd. (1981) 121 Cal.App.3d 276, 279, 175 Cal.Rptr. 150.)

Until recent years, the court rejected the view that the defendant's conduct could in any way prevent dismissal under section 581a. (Siskiyou County Bank v. Hoyt (1901) 132 Cal. 81, 84, 64 P. 118; White v. Superior Court (1899) 126 Cal. 245, 247, 58 P. 450; Sauer v. Superior Court (1925) 74 Cal.App. 580, 584, 241 P. 570.) But Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 96 Cal.Rptr. 571, 487 P.2d 1211 marked a change in judicial attitude. Tresway clearly enunciated the rule that equitable estoppel is available to a plaintiff who has failed to comply with the requirements of section 581a in reasonable reliance upon the words or conduct of the defendant.

In applying these exceptions to the case at bar, there is no showing that it was impossible, impracticable, or futile to return the summons within one year of the commencement of the action. Furthermore, respondents' actions in participating in the litigation played no role in inducing appellant to delay the return of summons. Appellant's assertion that the provisions of section 5147 may be waived by a defendant's voluntary submission to the jurisdiction of the court for a ruling on the merits goes beyond either the statutory or judicially recognized exceptions to the similar mandate of section 581a. ⁶ But the clear tendency of the courts not to be restricted to the literal language of a similar time limitation statute suggests that appellant's contention warrants careful consideration.

The recent Supreme Court case of Hocharian v. Superior Court (1981) 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829 laid to rest the continuing judicial debate on whether the three-year time limitation for serving and returning the summons set out in section 581a is a...