Tresway Aero, Inc. v. Superior Court

• Decision Date: 16 August 1971
• Citation: 487 P.2d 1211,5 Cal.3d 431,96 Cal.Rptr. 571
• Parties: , 487 P.2d 1211 TRESWAY AERO, INC., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Elizabeth Matilda DENT, as Executrix, etc., Real Party in Interest. L.A. 29750. In Bank
• Court: California Supreme Court

Page 571

96 Cal.Rptr. 571

5 Cal.3d 431, 487 P.2d 1211

TRESWAY AERO, INC., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Elizabeth Matilda DENT, as Executrix, etc., Real Party in Interest.

L.A. 29750.

Supreme Court of California,

In Bank.

Aug. 16, 1971.

Wise, Wilpatrick & Clayton, and John L. Fort, Long Beach, for petitioner.

No appearance for respondent.

Dorothy Levin, Long Beach, for real party in interest.

TOBRINER, Justice.

Petitioner Tresway Aero, Inc. (hereafter 'defendant') seeks mandamus to compel the Los Angeles County Superior Court to quash service of summons in the action of Dent v. Tresway Aero, Inc. (Superior Court No. SO C 13661) and to dismiss that action for failure to serve summons within three years of the filing of the complaint, pursuant to Code of Civil Procedure section 581a. We concur in defendant's contention that the summons served upon it did not comply with the requirements of Code of Civil Procedure section 410 respecting service upon corporations; ¹ accordingly, the trial court should have quashed service. We observe, however, that plaintiff served defendant with the defective summons within the three-year period of section 581a; defendant then requested an extension of time in which to appear to a date more than three years from the filing of the complaint. By such affirmative action defendant effectively prevented plaintiff from discovering the defect in service until after the statutory period had run. We uphold the conclusion of the trial court that on these facts defendant is estopped to seek dismissal under section 581a.

On August 7, 1965, an airplane owned by defendant crashed, killing eight persons including James Dent. Plaintiff, as executrix of the estate of James Dent, brought a wrongful death action against defendant; the complaint was filed and summons issued on August 2, 1966. Plaintiff withheld service of summons pending litigation of another action against defendant arising out of the same airplane crash.

As of July 1969 the test case had been settled, and plaintiff engaged Alan Curtis to serve process on defendant. On July 22, 1969, Curtis arrived at defendant corporation's office and requested to see Ira Cree, an officer of the corporation. Curtis then encountered William Cree, Ira's brother and defendant's attorney. Curtis had been informed by plaintiff's counsel that William was authorized to accept service for defendant; Curtis therefore delivered the summons to William and asked William to 'take care of it.' According to Curtis' declaration, William stated that he would 'take care of it;' William's declaration stated that he said only 'Thanks a lot.' Curtis lost the original summons, but filed a declaration of service on July 28, 1969, showing service on 'William Cree, who accepted service on behalf of Tresway Aero, Inc., a corporation.' ²

Code of Civil Procedure section 410 provided that 'When the service is against a corporation * * * there shall appear on the copy of the summons that is served a notice stating in substance: 'To the person served: You are hereby served in the within action (or proceeding) on behalf of (here state the name of the corporation * * *) as a person upon whom the summons and a copy of the complaint must be served to effect service against said party * * *.' The copy of the summons delivered by Curtis to William Cree did not contain this notice.

Shortly after defendant received the summons and complaint, defendant's present counsel ³ telephoned plaintiff's counsel and obtained a 20-day extension of time in which to answer the complaint. The three-year period for service of summons expired on August 4, 1969. ⁴ On August 11, twenty days after the attempted service by Curtis, defendant appeared and moved to quash service and to dismiss the action. ⁵ The trial court denied both motions, and defendant sought mandate.

1. The attempted service of summons on defendant did not comply with Code of Civil Procedure section 410, and should be quashed.

Code of Civil Procedure section 411 provided that in a suit against a domestic corporation, summons may be served upon '* * * a person designated for service of process or authorized to receive service of process.' ⁶ William Cree, in a declaration filed with the trial court, stated that 'since 1965 * * * declarant has been a person authorized to accept service for said corporation (Tresway Aero, Inc.).' Consequently, service of process in proper form upon William Cree, as an agent of defendant corporation, would constitute service upon the corporation. ⁷

The copy of the summons delivered to William Cree, however, did not contain the notice required by Code of Civil Procedure section 410. The provisions of this section are mandatory, and service of a summons which does not comply with those provisions is ineffective. (National Union Fire Ins. Co. v. Superior Court (1966) 247 Cal.App.2d 326, 329, 55 Cal.Rptr. 574.) ⁸ Plaintiff calls our attention to the conversation between William Cree and the process server, Alan Curtis, but we find no language therein to suggest that William Cree offered to waive compliance with section 410. Neither this conversation, nor defendant's subsequent acquisition of an extension of time in which to appear constitute a general appearance. ⁹

2. Defendant's motion for dismissal under Code of Civil Procedure section 581a is barred by estoppel.

As of August 1969, Code of Civil Procedure section 581a read in part as follows:

'No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced must 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 in the complaint as a party or not, * * * unless the summons shall be served and return thereon 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. But all such actions may be prosecuted, if general appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served; provided, that, * * * not 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, or while he has secreted himself within the State to prevent the service of summons on him. * * *

'A motion to dismiss pursuant to the provisions of this section shall not, nor shall any extension of time to plead after such motion, constitute a general appearance.'

Earlier cases held that this section was mandatory and jurisdiction (see, e.g., Gonsalves v. Bank of America, etc. (1940) 16 Cal.2d 169, 172, 105 P.2d 118); these decisions did not recognize any exceptions not expressly stated in the statute (see White v. Superior Court (1899) 126 Cal. 245, 247, 58 P. 450; Vrooman v. Li Po Tai (1896) 113 Cal. 302, 305, 45 P. 470; Cahn v. Jones (1950) 101 Cal.App.2d 345, 348, 225 P.2d 570). This view of section 581a was substantially altered by our ruling in Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 329 P.2d 489. In that case the defendant allegedly concealed himself to avoid service during the last two weeks of the three-year period. The trial court dismissed the action; we reversed, holding that the trial court had abused its discretion.

Although Wyoming Pacific involved a statutory exception to section 581a--concealment to avoid service--the court addressed itself more generally to the construction of section 581a and to the existence of nonstatutory exceptions to its directive. We stated:

'Similar both in general purpose and language (to section 581a) are the provisions of section 583 of the Code of Civil Procedure requiring the dismissal of actions not brought to trial within five years after being filed. Despite the apparently mandatory language of that section, this court has found many 'implied exceptions' where it was 'impracticable and futile' to bring the action to trial within the designated five-year period. Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981, 983, with cases cited. Thus, discretion has entered into the application of this provision so as to prevent it from being used to compel the dismissal of actions where the plaintiff has not had a reasonable opportunity to proceed to trial. See Ojeda v. Municipal Court, 73 Cal.App.2d 226, 232, 166 P.2d 49.

'We are therefore of the view that notwithstanding the mandatory language of section 581a, the trial court is vested with discretion in applying the exceptions comparable to the discretion with which it is vested in applying the exceptions to section 583. As with the exercise of the court's other inherent and statutory powers to dismiss actions for want of diligence in either serving the summons or bringing the action to trial, the discretion permitted must be 'exercised in accordance with the spirit of the law and with a view of subserving, rather than defeating, the ends of substantial justice.' 16 Cal.Jur.2d, Dismissal, Discontinuance, and Nonsuit, § 30, p. 179. Each case must be decided on its own particular facts, and no fixed rule can be prescribed to guide the court in its exercise of this discretonary power under all circumstances.' (50 Cal.2d at pp. 740--741, 329 P.2d at p. 491.) ¹⁰ Wyoming Pacific discussed the implied exception of impracticability; the present case involves the venerable doctrine of estoppel. This doctrine affirms that 'a person may not lull another into a false sense of security by conduct causing the latter to forebear to do some things which he otherwise would have done and then take advantage of the inaction caused by his own conduct.' (Lovett v. Point Loma Development Corp. (1968) 266 Cal.App.2d 70, 75, 71 Cal.Rptr. 709, 712; see Carruth v. Fritch (1950) 36...