Kaiser Foundation Hospitals v. Superior Court

Opinion

STEPHENS, Acting P. J.

This is a petition for writ of mandamus to compel the superior court to. dismiss an action pursuant to Code of Civil

[525]

Procedure section 581a, subdivision (a), after its denial of petitioners’ motion to dismiss.

Section 581a, subdivision (a) provides as follows: “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.” (Italics added.) None of the stated exceptions is here applicable. In the instant case, petitioners (defendants) were served with summons within the three-year period, i.e., approximately two weeks before the period had run, and (quoting from plaintiff’s brief), “the document which is the return of service was executed and returned to [plaintiff’s] counsel within the three (3) year statute; only the filing of this executed document was inadvertently delayed until a short period of time after the three (3) years expired.”

1

It is conceded by plaintiff that “At the time, however, that this action was commenced, case law did establish that the term ‘return of service’ as used in § 581a(a) referred to the filing of the document with the court, rather than to the document itself.”

In 2 Witkin, California Procedure (2d ed.) section 665, Filing of Return, pages 1449-1450, Witkin states: “(1)

Nature of Return.

Proof of service of summons is required to inform the court that the defendant has received the necessary jurisdictional notice. (See