Owen v. Niagara MacHine and Tool Works

68 Cal. App. 3d 566, 137 Cal. Rptr. 378, 1977 Cal. App. LEXIS 1346

• Court: California Court of Appeal
• Decided: March 29, 1977
• Docket: Civ. 48966
• Status: Published

Opinions

Opinion

KINGSLEY, Acting P. J.

On September 15, 1972, plaintiff filed a complaint in an action for personal injuries. The theory of his action was that he had been injured, in the course and scope of his employment, because a machine manufactured by the present defendant had been negligently designed by it. Plaintiff had considerable difficulty in determining the exact name and location of this defendant.¹ Ultimately, he secured service on defendant, in New York, on August 29, 1975. On September 5, 1975, counsel for defendant telephoned counsel for plaintiff, seeking (and securing) an agreement extending defendant’s time “to plead” until September 30, 1975. That agreement was confirmed by a letter also dated September 5, 1975. The summons and return of service not having been filed by September 20, 1975, defendant moved for, and secured, an order dismissing the complaint as to it. Plaintiff appeals from that order; we affirm.

Subdivision (a) of section 581a² of the Code of Civil Procedure provides; “(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 same 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 said 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.”

It is not contended that plaintiff is within either of the statutory exceptions to the requirement that summons and proof of service be filed within the three-year period. However, the courts have recognized nonstatutory exceptions to the requirements of section 581a. The one herein relied on is that a defendant may be estopped to raise the bar of the statute. It was contended in the trial court, and is contended here, that the telephone call of September 5th, and the letter of that date, lulled plaintiff’s counsel into believing that defendant would make, prior to September 30, 1975, a general appearance in the action. We agree with the trial court that neither the phone call nor the letter estopped defendant from seeking a dismissal for failure to comply with the three-year requirement of section 581a.

In Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431 [96 Cal.Rptr. 571, 487 P.2d 1211], a defective service had been made upon a defendant. Within the three-year period defendant sought and secured consent for an extension of time beyond the three-year period within which to plead. The court held that that conduct lulled the plaintiff into believing that the service was properly made and estopped defendant from relying on section 580a, since the plaintiff, warned of the defect, could have corrected it within the statutory period. In the case at bench, the service is not questioned; no correction by plaintiff was called for. He was only required to return his summons and proof of service prior to September 15th.

In RCA Corp. v. Superior Court (1975) 47 Cal.App.3d 1007 [121 Cal.Rptr. 441], the parties had executed a stipulation extending the time “to appear.” The court held that that language did lull the plaintiff into a belief that a general appearance would be made. Here, the oral stipulation merely granted time to “plead,” not to “appear.” The difference is material. As the Supreme Court pointed out in Busching v. Superior Court (1974) 12 Cal.3d 44, at page 51 [115 Cal.Rptr. 241, 524 P.2d 369]: “A party who merely seeks an extension of time to plead cannot reasonably be deemed to make a general appearance. His purpose may be to obtain adequate time to determine whether or not to object to the jurisdiction of the court.”

While Busching ultimately rested on the fact that any appearance in that case was ineffective because it was made after the three-year period had expired, we regard the quoted language as applicable to the case at bench. Whatever plaintiff’s counsel may have thought that defendant’s counsel intended ultimately to do, he had no basis, on an agreement merely to “plead” to assume that defendant desired or intended anything more than time to determine on a course of action.³ Plaintiff, agreement or not, had 10 days within which to protect himself against the choice of tactics ultimately selected by defendant. He cannot now complain of his own failure to take proper defensive action.

The order appealed from is affirmed.

Dunn, J., concurred.

1 The complaint named Niagara Punch & Die Corporation as one of the defendants. Because there are several tool manufacturing companies with the word “Niagara” in their corporate names, and because the machine in question was not available to plaintiff’s counsel for inspection, it took until 1975 for plaintiff definitely to determine that this defendant was the manufacturer. Defendant was properly served, in its true name, shortly after that determination.

2 Plaintiff’s brief refers to subdivision (c) of section 581a. Clearly it was subdivision (a) on which the trial court relied and which controls here.

3 We note that service had been made on defendant in New York on August 29th; the papers were mailed to Los Angeles counsel. A Saturday, a Sunday and a holiday intervened between the date of service and the telephone call. With that little time within which to determine what action to take, counsel for defendant cannot be charged with any impropriety in asking for and securing the nonspecific extension herein involved.