Gillette v. Burbank Community Hospital

[432]

Opinion

FLEMING, J.

On 24 May 1971 plaintiff filed a complaint for medical malpractice against Saint Joseph Medical Center, Burbank Community Hospital, Drs. Frederick Amerongen, Joan Marie King, Charles King, Donald Springer, and Phillip Davis. The superior court clerk issued summons on 24 May 1971, but the summons was not served on any of the defendants at that time. Not quite three years later on 21 May 1974 plaintiff through a different attorney filed a “first amended complaint” identical in text with his original complaint except for its title and the name of plaintiff’s new attorney. Copies of the original summons and the “first amended complaint” were then served on all defendants, and proof of service of summons was filed with the court on 23 May 1974, the last day of the three-year period for return of service of summons. Some defendants filed answers to the first amended but others did not. Thereafter, the court quashed service of summons on all defendants and dismissed the action, on the theory that an amended summons should have been requested and served, and that plaintiff’s failure to do this amounted to a failure to serve and return summons on the complaint within the three-year period of the statute. (Code Civ. Proc., § 581a, subd. (a).) Plaintiff appeals the judgment of dismissal.

The sole issue involved is the nature of the summons that should have been served. Code of Civil Procedure section 412.10, provides that on plaintiff’s request the clerk shall issue one or more summons for any defendant. Section 412.20 specifies the formalities for a summons, requiring that it be directed to the defendant, signed by the clerk, issued under the seal of the court, and contain the title of the court, names of the parties, direction to the defendant to respond to the complaint within 30 days, and notice that if he does not respond his default will be entered.

Plaintiff’s summons met all requirements of section 412.20. It was completed on a form approved by the Judicial Council; it contained the name of the court, the names of the parties, the number of the case, the requisite notices; and it was signed and sealed by the clerk. Nevertheless, defendants urge that the service of summons was invalid because the summons was not an “amended summons” issued by the clerk on the filing of the “first amended complaint.”