Watts v. Crawford

• Decision Date: 06 July 1995
• Docket Number: No. S035808,S035808
• Court: California Supreme Court
• Parties: , 896 P.2d 807, 95 Daily Journal D.A.R. 8975 Doyle WATTS et al., Plaintiffs and Appellants, v. Gertrude CRAWFORD, Defendant and Respondent.

Page 81

42 Cal.Rptr.2d 81

10 Cal.4th 743, 896 P.2d 807, 95 Daily Journal D.A.R. 8975

Doyle WATTS et al., Plaintiffs and Appellants, v. Gertrude CRAWFORD, Defendant and Respondent.

No. S035808.

Supreme Court of California In Bank.

July 6, 1995.

Carey & Carey, Robert E. Carey, Jr., Jerry Y. Fong, Daniel S. Gonzales and John G. Downing, Palo Alto, for plaintiffs and appellants.

Coughlin & Paxton, Coughlin, Paxton & Pipal, and James M. Paxton, Hollister, for defendant and respondent.

GEORGE, Justice.

Under governing statutes, a plaintiff is required to serve a defendant with the summons and complaint within three years of filing the complaint in order to avoid a dismissal. (Code Civ.Proc., §§ 583.210, subd. (a), 583.250.) ¹ Section 583.240 provides, however, for the tolling of the three-year period under a number of specified circumstances. The issue in the case before us involves the proper interpretation of the provision in section 583.240, subdivision (a), that requires tolling of the three-year period for the time during which "[t]he defendant was not amenable to the process of the court."

In particular, we must resolve a conflict in decisions of the Courts of Appeal that have considered the question whether a trial court finding that a defendant "cannot with reasonable diligence be served [in a manner other than by publication of the summons]"--a finding that is required to be made in any order authorizing service of summons by publication pursuant to section 415.50--is the equivalent of a determination that the defendant "was not amenable to the process of the court" for purposes of the tolling provision of section 582.240, subdivision (a). Plaintiffs, relying upon the decision in Quaranta v. Merlini (1987) 192 Cal.App.3d 22, 237 Cal.Rptr. 179, contend that a trial court finding that a defendant cannot with reasonable diligence be served by means other than publication establishes that the defendant was not amenable to the process of the court within the meaning of section 583.340, subdivision (a). Defendant, relying upon the conflicting decision in Perez v. Smith (1993) 19 Cal.App.4th 1595, 24 Cal.Rptr.2d 186, contends that there is a significant difference between the two concepts, and that a trial court order, authorizing service by publication, is insufficient to establish that the defendant was not amenable to process under section 583.240, subdivision (a).

For the reasons discussed below, we agree with defendant's position and accordingly affirm the judgment of the Court of Appeal, upholding dismissal of the action.

I

On February 8, 1989, plaintiffs Doyle, Essie, Henry, and Norma Watts filed an action (and recorded a notice of pending action) against defendants Gertrude and Jack Crawford, alleging fraud and seeking specific performance of--or damages for the breach of--a contract to sell real property located in this state. A summons was issued on that date. ² Later that month, plaintiffs mailed the complaint to the attorney (Harry Robertson) who had represented defendant in negotiations concerning the property.

In September 1989, plaintiffs' attorney (Jerry Fong) received a letter from another attorney (James Paxton) who represented defendant, requesting a copy of the complaint and reporting that, although Paxton was unable to appear on defendant's behalf, he would discuss the matter with her following her return from Europe. At that time, Paxton also contacted Fong by telephone, informing him that defendant had not authorized Paxton to accept service of process. In January 1990, Fong received a second letter from Paxton, indicating his desire to conclude the litigation between the parties and, to that end, informally requesting additional information.

In the meantime, plaintiffs endeavored to effect personal service upon defendant. Plaintiffs hired a licensed process server, who, in September 1989, attempted to serve defendant at her last known address. During 1989, the process server sought an updated address for defendant, referring to telephone directories, voter registries, the index of the Department of Motor Vehicles, and the indices of the county recorder's office, and made repeated attempts during the three-year period, using various indices in several counties in the state, to ascertain defendant's address. In 1990, plaintiff Doyle Watts learned from defendant's tenants that, although defendant had resided in a trailer on the property adjacent to the site that is the subject of the present action, she had since moved from that residence. Doyle Watts was unable to obtain from the tenants a new address for defendant. In 1991, the tenants informed Doyle Watts that defendant had an itinerant lifestyle with no permanent residence.

On February 6, 1992, one day prior to expiration of the three-year period following the filing of the complaint, plaintiffs filed an ex parte application for an order directing service of the summons by publication, based upon declarations and other evidence reciting the facts described above. Plaintiffs asserted in points and authorities, filed in support of their request, that "[d]efendants have not been amenable to the process of the Court (they could not be served with process in any other manner through reasonable diligence)." In his declaration, the process server hired by plaintiffs stated: "I have not been able to effectuate service of process in any of the manners set forth in California Code of Civil Procedure, from Section 415.10 to Section 415.30."

The trial court granted the application the same day it was filed. The court's order directing service by publication included an express finding that "said defendant cannot be served with reasonable diligence in any other manner provided in Sections 415.10 through 415.30 of the Code of Civil Procedure...." ³ The order did not contain any reference to defendant's amenability to process. On February 27, 1992, 20 days after expiration of the three-year period following the filing of the complaint, service by publication commenced. Publication would have been completed on March 26, 1992, three years and forty-eight days after the action was filed. ⁴

On April 20, 1992, defendant moved to dismiss the action based upon plaintiffs' failure to serve the summons and complaint within the three-year period mandated by section 583.210, subdivision (a). In support of the motion, defendant's attorney, Paxton, declared that defendant had not appeared previously in the action and had not entered into a stipulation to extend time to serve the summons and complaint, and that Paxton never had received any response from plaintiffs' counsel to Paxton's letter of January 16, 1990.

Plaintiffs opposed defendant's motion upon the basis that the trial court's previous finding in support of the order directing service of the summons by publication--to the effect that defendant could not be served with reasonable diligence by any means other than publication--also constituted a finding that defendant had not been amenable to the process of the court, thus establishing the applicability of the exception (provided by section 583.240, subdivision (a)) to mandatory dismissal for failure to serve a defendant within three years. In opposing defendant's motion, plaintiffs did not produce additional evidence, instead simply relying upon the evidence they produced in support of their previous application, and the Court of Appeal's decision in Quaranta v. Merlini, supra, 192 Cal.App.3d 22, 237 Cal.Rptr. 179. The trial court granted defendant's motion to dismiss the action and entered an order of dismissal. The Court of Appeal, in a split decision, affirmed the judgment of the trial court dismissing the action. We granted plaintiffs' petition for review.

II

Section 583.210, subdivision (a), provides that a summons and complaint "shall" be served upon a defendant within three years after the action is commenced. Section 583.250, in turn, provides that the action "shall" be dismissed if service is not made within the statutorily prescribed time and that the foregoing requirements "are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute." (Id., subds. (a)(2), (b).)

As noted above, however, section 583.240 delineates a number of circumstances that operate to toll the three-year period in which service must be made. The statute provides in this regard: "In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [p] (a) The defendant was not amenable to the process of the court. [p] (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. [p] (c) The validity of service was the subject of litigation by the parties. [p] (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision." The question presented by this case concerns the proper interpretation of the "condition" set forth in section 583.240, subdivision (a)--namely, that "[t]he defendant was not amenable to the process of the court."

Although the statutory scheme requires the plaintiff to serve the summons and complaint within a strictly defined time limit (subject to the exceptions provided in section 583.240), the governing statutes afford the plaintiff a variety of means by which to effect service upon the defendant. Service may be accomplished by means of personal delivery of the summons and complaint to a party (§ 415.10), by delivery to the business office or dwelling of certain classes of parties (§§ 415.20; 416.10-416.90), by mailing (with an acknowledgment of receipt) to a party (§ 415.30), or, if a party is out of state, by any of the preceding means or by first...