Tzolov v. International Jet Leasing, Inc.

Opinion

FOGEL, J.

*

Drake Tzolov appeals from a judgment entered against him following the granting of respondent’s motion to dismiss for failure to effect service of summons within three years of the filing of the complaint.

1

We conclude that the motion was properly granted and affirm.

Background

On January 27, 1983, appellant sustained a severe head injury when he fell from the bed of a truck owned and operated by respondent. The effects of appellant’s injury rendered him incompetent to file an action on his own behalf. By and through his mother as guardian ad litem, appellant commenced the instant action on January 23, 1984.

2

The action then lay dormant for almost four years. Appellant filed an amended complaint alleging additional causes of action on December 24, 1987, following a substitution of counsel. Respondent was served with the summons and amended complaint on January 25, 1988, and shortly thereafter filed a motion to dismiss for failure to effect timely service of summons pursuant to Code of Civil

[327]

Procedure section 583.210.

3

The trial court granted the motion and entered judgment pursuant thereto.

Discussion

Appellant contends that because he was legally incompetent at the time he filed his complaint, the provisions of section 583.210 were tolled and that the trial court should have denied the motion to dismiss. Appellant relies on

J. A. Thompson & Sons, Inc.

v.

Superior Court

(1963) 215 Cal.App.2d 719 [30 Cal.Rptr. 471] (disapproved of on other grounds in