RCA Corp. v. Superior Court

Opinion

ELKINGTON, J.

On these proceedings in prohibition we are concerned with Code of Civil Procedure section 581a which, as relevant to the issue before us, provides:

“(a) ... all actions heretofore or hereafter commenced shall be dismissed by the court ... on the motion of any party interested therein . . . unless the summons on the complaint is served and return made within three years after the commencement of said action, except where . . . the party against whom the action is prosecuted has made a general ppearance in the action....

[1009]

“(e) A motion to dismiss pursuant to the provisions of this section shall not, nor shall any extension of time to plead after such motion . . . constitute a general appearance.”

The narrow issue before us may be stated in this manner: Where summons is

served,

but not

returned,

within three years, is a written but unfiled stipulation of the parties, extending a defendant’s time “within which to appear in the . . . action” to a date within the three-year period, tantamount to a “general appearance” for the purpose of section 581a?

It is said that a “general appearance is not necessarily a formal, technical step or act”

(Brown

v.

Douglas Aircraft Co.

(1958) 166 Cal.App.2d 232, 236 [333 P.2d 59]); this concept is expressly made applicable to a general appearance under section 581a

(O’Keefe

v.

Miller

(1965) 231 Cal.App.2d 920, 925-926 [42 Cal.Rptr. 343]). At least as applied to section 581a, the provisions of Code of Civil Procedure section 1014