CLARENCE A. LESKO, Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; JOSE LOPEZ, a Minor, etc., et al., Real Parties in Interest.
Civ. No. 53247
First Dist., Div. Three.
Jan 7, 1982.
127 Cal.App.3d 476
D. Stuart Candland and Craddick, Candland & Conti for Petitioner.
No appearance for Respondent.
Richard H. Jordan for Real Parties in Interest.
OPINION
FEINBERG, J.—This petition challenges a trial court refusal to dismiss an action for failure to serve and return service of summons within three years of filing the action (
The Facts
The lawsuit underlying this petition is for alleged medical malpractice in the delivery of Jose Lopez on January 14, 1970. Under the provisions of
The same day, Jose Lopez, by his guardian Fae J. Lopez, filed a complaint for damages for medical malpractice, naming only Doe defendants. Apparently, the naming of only Doe defendants was intended to avoid violation of the 90-day notice requirement (see
The 90-day notice sent to petitioner was turned over to petitioner‘s counsel. By letter of January 27, 1978, petitioner‘s counsel wrote to real parties’ counsel, indicating that he would be willing to discuss the case prior to suit being filed. Obviously, petitioner‘s counsel was unaware that real parties had filed a Doe complaint.
On April 7, 1978, real parties’ counsel answered the letter of January 27, 1978, by indicating that if petitioner had “a proposal for initiating settlement negotiations in the near future to obviate the expense and
Thereafter, for approximately three years, there was an exchange of letters between respective counsel. On September 19, 1979, counsel for real parties, in writing, offered to settle the case against petitioner for $250,000 and stated that the offer would be “held open through and including October 15, 1979.” On October 10, 1979, counsel for petitioner answered by saying that real parties’ offer would be given serious consideration, but before a decision could be made, petitioner wished to have a medical examination of real party in interest Jose Lopez. Counsel for real parties agreed. For various reasons, that examination was not completed until March 18, 1980. On November 24, 1980, counsel for real parties wrote to petitioner‘s counsel, stating that he desired a response to the longstanding offer of settlement ($250,000) and that a response should be available by January 15, 1981. On January 22, 1981, by letter, counsel for petitioner rejected the offer but indicated that he was still willing to negotiate at some lesser amount.
It appears that real parties terminated settlement negotiations at that point and then proceeded to serve petitioner on April 8, 1981 with the first amended complaint.5
Petitioner then filed a notice of motion to quash service of summons and complaint. In his moving papers he sought alternatively to dismiss the lawsuit for failure to return service within three years of filing the complaint (
Discussion
I. Has Hocharian v. Superior Court (1981) 28 Cal.3d 714 Added a New Implied Exception to Code of Civil Procedure Section 581a , Whereby a Diligent Plaintiff May Avoid Dismissal Without Showing Impracticability, Impossibility or Futility or the Facts Constituting an Estoppel?
1. Preliminarily, we must determine whether the three-year period prescribed in
Real parties assert that the amended complaint was, for all practical purposes, the first pleading filed, because it is the first pleading which, under
In effect, real parties contend the January 13, 1978, complaint was a nullity because of the provisions of
Further, real parties point out they could have filed a new complaint on April 11, 1978, as if to argue that because they could have done so, they should be deemed to have done so.
The trial court correctly rejected these arguments when made below. Regardless of what real parties could have done, what they did was file
2. We come now to the Hocharian decision.
Then came Hocharian. In Hocharian, the plaintiff was injured while driving a car leased by her employer, Georgia-Pacific Corporation. Allegedly, the accident was caused by faulty brakes. On August 30, 1976, plaintiff sued General Motors, one Beasley, the operator of an Arco Station where the car was usually serviced, another named defendant and a number of Doe defendants. In September 1979, more than three years after the filing of the complaint, General Motors deposed an employee of Georgia-Pacific who usually drove the car in question. He testified that while Beasley usually serviced the car, there had been one occasion when the brakes had been inspected by Hocharian, the operator of a Texaco Service Station. In October 1979, Hocharian was deposed. Thereafter, in November 1979, Hocharian was served with
In the course of the Hocharian opinion, the court stated, “[T]he courts have suggested at least three ‘implied exceptions’ to
“In applying any of these exceptions to a given factual situation, the critical question is whether a plaintiff used reasonable diligence in prosecuting his or her case. The particular factual context or cause of the noncompliance should not be determinative, rather, the primary concern must be the nature of the plaintiff‘s conduct.” (Hocharian v. Superior Court, supra, 28 Cal.3d at pp. 721-722, fns. omitted.)6
Real parties thus argue, and the trial court impliedly held, that the attempt to settle the case during the three-year period following the filing of the complaint, without effecting service, was the exercise of “reasonable diligence in prosecuting his ... case.” It is not casuistry to say that a plaintiff who seeks a favorable settlement of his case is “prosecuting” his case.
Surely, we should seek to encourage settlement rather than trial. And, in a concrete way, some progress was made towards a resolution by trial if trial became inevitable. For example, during the course of the negotiations, the minor plaintiff was made available for medical examination and was so examined by a physician of defendant‘s choice as to the nature, extent and etiology of the disabilities complained of.
Nevertheless, we are of the view that real party has misperceived the thrust of Hocharian. We have come to this conclusion reluctantly, for this is a hard case. But hard cases should not make bad law.
As we read Hocharian, we believe that it holds simply that the mandatory dismissal of
Put differently, the “implied exceptions” to
Why, then, did the court speak in terms of “reasonable diligence in prosecuting his or her case,” rather than in terms of reasonable diligence in attempting to effect service?
The answer lies in the peculiar factual context of Hocharian. In the usual case where service is not effected within the three years, the identity of the defendant is known to plaintiff; it is his whereabouts that are not known. In that context, one can speak of attempts to find the defendant and serve him. But, in Hocharian, the converse was true. Plaintiff did not know of the existence of Hocharian as a possible defendant. Obviously, therefore, it would have been meaningless to speak of an attempt to serve him. Instead, the issue became whether the plaintiff had used reasonable diligence in prosecuting the case against the named defendants during the three years following the filing of the complaint. For, if the plaintiff had, the failure to ascertain the existence of Hocharian as a potential defendant and the consequent lack of service would not bring the mandatory dismissal of
In short, in our view, the concept of “reasonable diligence” relates to an inability to effect service within the statutory time. Thus, when a
We are fortified in our opinion by a statement by the Hocharian court “that a trial court must dismiss if the plaintiff fails to prove reasonable diligence in attempting to serve and return summons.” (Id., at p. 721, fn. 3; see also House v. State of California (1981) 119 Cal.App.3d 861, 874.)
If we are correct, then it follows that real party in the case at bench cannot avail himself of the rule of Hocharian. Petitioner was known to real party as the defendant at all times. It is not disputed that petitioner was, at all times, available for the service of summons. Real parties apparently, in order to facilitate settlement discussions and “to obviate the expense and time that would be incurred in discovery and trial preparation,” decided on his own not to effect service of summons. While this may have been a commendable reason for not making service, it is not one that comes within the “implied exceptions” to
II. Is Petitioner Estopped From Seeking Dismissal Under Section 581a ?
The answer is no. Real parties, relying on Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, argue that petitioner, by engaging in settlement negotiations, impliedly agreed that service of process could be withheld. Therefore, say real parties, petitioner should be estopped from seeking dismissal under
In Tresway, defective service of summons was made upon the defendant. Plaintiff appears not to have been aware that the service was defective. If the service had been valid, defendant would have been required to plead, by way of answer or demurrer, before the three-year period specified in
We compare, now, the case at bench with Tresway.
In Tresway, the plaintiff thought he had effected valid service, timely, upon the defendant. In the case at bench, real parties knew that he had not served petitioner.
In Tresway, the defendant, by asking for a continuance, effected two results. First, he led plaintiff to believe that there was no issue as to defective service. Second, he prevented plaintiff from finding out that the service was defective in time to effect valid service. In the case at bench, petitioner did not ask for anything; he simply entered into settlement negotiations with real parties. Petitioner said nothing in response to real parties’ statement that service would not be made. Petitioner never represented that he would settle, he represented only that he was willing to discuss settlement. Was petitioner under some duty to apprise real parties that petitioner was not waiving his rights under
Real parties seek to bring themselves within Tresway by arguing that if petitioner had rejected the offer of settlement before January 13, 1981 (three years following the filing of the Doe complaint), real parties would have been aware of the necessity of effecting service and could have done so in time. Real parties concede, however, that they gave petitioner until January 15, 1981, to respond, by which time it was too late to make timely service. Thus, it was not any act of petitioner‘s that prevented timely service. And, as we pointed out (see footnote 5), even after negotiations were terminated, real parties waited more than 60 days before serving petitioner.
We conclude that the trial court was correct in finding no estoppel.
Let a peremptory writ of mandate issue directing the court to set aside its order denying petitioner‘s motion to dismiss, and in its place and stead, issue its order granting said motion and dismissing real parties’ action pursuant to
Barry-Deal, J., concurred.
WHITE, P. J.—I respectfully dissent. The central question raised by this petition is what effect, if any, the decision in Hocharian v. Superior Court (1981) 28 Cal.3d 714, has had upon the previously established implied exceptions to
“As we read Hocharian, we believe that it holds simply that the mandatory dismissal of
The majority‘s view is reasonable, but I offer the thought that it is unduly restrictive or narrow. Particularly is this the case in light of the Hocharian court‘s emphasis upon the primary purpose of
Consequently, I argue that Hocharian paints with a broader brush than that perceived by the majority. Hocharian, pages 719 through 721,
As focused upon by Justice Richardson, no prior case had excused compliance with either
Along similar lines, Justice Clark, in a separate dissent, opined that the decision went well beyond prior law and removed “all substantive effect from
It is my humble opinion that a reasonable interpretation of the Hocharian decision can be drawn from a reading of the majority decision as criticized by the dissent. Petitioner posits two possible interpretations of Hocharian: (1) Petitioner‘s view that Hocharian has added no new exception for “reasonable diligence” by the plaintiff but has merely said that in applying the old exceptions the court must make sure the plaintiff has been reasonably diligent (this view although stated differently seemingly approximates the majority view herein); and (2) the trial court‘s view that even if none of the traditional exceptions exists a plaintiff may, by proving reasonable diligence, obtain relief from the otherwise mandatory terms of the statute. (On its face, the following quote from Hocharian appearing in footnote 6, page 722, seems to support this view: “While the specific considerations may be different, the underlying question is the same: whether or not unreasonable conduct on the part of plaintiff gave rise to the noncompliance. Moreover, trial courts, familiar with the balancing process central to negligence determinations, are well equipped to resolve this question.“)
In my view neither of these interpretations is wholly accurate. Rather, it would seem that the Hocharian court has at least nominally retained the traditional exceptions but has liberalized the circumstances in which they would apply and has created a procedural framework for determining applicability. Pivotal to explaining Hocharian are the court‘s statements (at p. 722) that “[i]n applying any of these exceptions to a given factual situation, the critical question is whether a plaintiff used reasonable diligence in prosecuting his or her case. The particular factual context or cause of the noncompliance should not be determinative; rather, the primary concern must be the nature of the plaintiff‘s conduct.” (Italics added.) Thus, courts will no longer wrestle abstractly with the question of whether the serving of the complaint would have been “impossible, impracticable, or futile” because of circumstances beyond the plaintiff‘s control. Instead they will determine impracticability or futility by examining whether the failure to return service within three years occurred despite reasonable diligence on the part of the plaintiff. If a reasonably diligent plaintiff was unable to accomplish service and return thereof within the three-year period, then it was “impossible, impracticable, or futile” to do so regardless of whether the circumstances were in a literal sense within the plaintiff‘s “control.”
My understanding of Hocharian, if correct, compels the observation that the court‘s order is internally inconsistent. If the plaintiff was reasonably diligent there must have been “impossibility, impracticability, or futility” preventing a timely return of service. What the trial court apparently was saying is that under pre-Hocharian interpretation of those terms, none of the exceptions existed. However, Hocharian has reinterpreted the exceptions and focused inquiry upon the plaintiff‘s diligence. Having found due diligence, the trial court‘s conclusion that there was impossibility, impracticability or futility was erroneous. This error was not harmful, however, since the important question was whether plaintiff had met the burden of showing due diligence in serving and returning service on the summons. If the evidence supports the trial court‘s finding concerning due diligence, its decision should be upheld.2
The evidence supports the trial court‘s finding of diligence. From the beginning real parties pursued settlement in preference to litigation, advising counsel for petitioner within three months of the filing of the original complaint that “any Complaints which may be placed on file in order to protect against the running of the statute of limitations, will not be served on your clients until you and I have had an opportunity to explore the possibility of such negotiations.” Petitioner appeared receptive to the possibility of settlement, agreeing to give “serious consideration” to a demand to settle for $250,000. Ultimately, because of a medical examination favorable to petitioner, petitioner rejected the original demand, but suggested real parties’ counsel confer with his clients and reconsider the amount required to resolve the dispute. During the course of the correspondence nothing was said about the need to
Whether the actions of plaintiff should be considered “reasonable diligence” is a difficult question because the cause of the delay is different from that involved in Hocharian and cases analyzed there. In Hocharian, the delay was caused by failure to discover the identity of the potential defendant, and in most of the prior cases the plaintiffs encountered difficulties in serving known defendants. (See Hocharian, supra, 28 Cal.3d, at p. 722, fn. 6.) Here there was a known defendant who could have been served within the period of the statute, but plaintiff chose to defer service and advised defendant of that choice. Thus, the question is not whether plaintiff acted diligently in attempting to serve defendant but whether the “reasonable diligence” standard is met by a plaintiff who deliberately chooses not to serve a known defendant who is amenable to service. In other words, must the “reasonable diligence” requirement relate directly to attempts to discover and serve a defendant, or may it be satisfied by a plaintiff who is reasonably diligent in seeking to avoid the need for service of summons but in the process deliberately or inadvertently violates the three-year statute?
The reasonable answer to this question lies in the purpose of the statute, which is to “afford the party or parties against whom [the suit] is brought an opportunity to present such evidential support to any defense he or they may have thereto as may be available at the time the action is instituted, but which may be lost or destroyed through the death of witnesses or otherwise before the action is brought to issue by reasons of an unreasonably long delay in serving the defendant or defendants with appropriate legal process notifying him or them of the pendency of the action.” (Hocharian, supra, 28 Cal.3d 714, 719-720, quoting from People v. Kings County Dev. Co. (1920) 48 Cal.App. 72, 76.) Where, as here, the defendant has been notified of the lawsuit at or near the time of its filing but service has been delayed during legitimate settlement negotiations and the defendant has been informed of the intent to delay service and has acquiesced in that approach to service, it does not seem improper for a trial court to find “reasonable diligence” by the plaintiff and to relieve him from the strictures of
To summarize, it would appear that a reasonable reading of the Hocharian decision finds that it has not added a separate exception for plaintiff‘s reasonable diligence, but has recast the inquiry into “impossibility, impracticability, and futility,” making those exceptions applicable whenever a reasonably diligent plaintiff has failed to accomplish service and return of service within three years. Although the question of reasonable diligence will normally turn upon what efforts the plaintiff has made to discover or serve a defendant, the concept may also be applied in a situation such as this where the defendant has been notified of the suit and of plaintiff‘s intention to delay service and has expressed no need for service within the statutory period. Though the trial court‘s compliance with the balancing of prejudice requirement of Hocharian has not been revealed by the record, it is not contested by petitioner and there is no reason to think the balancing process did not take place.
I would discharge the alternative writ and deny the peremptory writ.
The petition of real parties in interest for a hearing by the Supreme Court was denied March 10, 1982.