Wong v. Armstrong World Industries, Inc.

Opinion

MERRILL, J.

—In this case we decide that failure of a plaintiff to make a return of summons or other proof of service within three years and sixty days after filing a complaint does not mandate dismissal of the action if the defendant made a general appearance within that time period. (Code Civ. Proc., §§ 583.210, subd. (b), 583.220, 583.250.)

1

Procedural Background

On August 1, 1986, Appellant Willie Wong filed a personal injury action for exposure to asbestos against respondents Armstrong World Industries, Inc., Certainteed Corporation, Flexitallic, Inc., GAF Corporation, Keene Building Products Corporation, Keene Corporation, National Gypsum

[1034]

Company and United States Gypsum Company and others. By July 27, 1989, all respondents had been served with the summons and complaint. Respondents filed answers to the complaint on August 25, 1989.

Respondents moved to dismiss Wong’s action on May 16, 1990, alleging that dismissal was mandated by section 583.250 as Wong failed to return the summons within three years and sixty days of the filing of the action. Wong filed the return of summons on June 8,1990. Respondents’ motion to dismiss the complaint was granted on July 11, 1990, after which judgment was entered in their favor. Wong appeals.

Discussion

Under former section 581a, subdivision (a), (repealed by Stats. 1984, ch. 1705, § 3, p. 6176) it was required that the summons on the complaint be served and return be made within three years of the commencement of the action. Section 583.210, effective in 1985, now prescribes the times for service and return of summons as follows: “(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision an action is commenced at the time the complaint is filed. [j[] (b) Return of summons or other proof of service shall be made within 60 days after the time the summons and complaint must be served upon a defendant.” However, section 583.220 provides that where a defendant makes a general appearance in an action “[t]he time within which