Glenwood Homeowners Ass'n v. Prosher Development Ltd.

Opinion

HASTINGS, J.

On this appeal we must decide whether an appearance by an unserved defendant by way of answer to a cross-complaint constitutes a general appearance by such cross-defendant so that plaintiff can serve the original complaint by mail on the cross-defendant.

Appellant, Glenwood Homeowners Association, Inc., commenced the within action on August 16, 1976, by filing a complaint against several named defendants and 150 Doe defendants, alleging causes of action

[1004]

based upon negligence, breach of warranty, breach of contract and fraud in the construction of a condominium project. One -defendant in the action, Prosher Development Ltd., (Prosher) the developer and general contractor of the condominium project filed numerous cross-complaints for indemnity against various subcontractors, including respondent F. A. Goplen & Sons, Inc.

On January 8, 1979, after a third amended complaint had been filed, appellant received answers to its interrogatories from Prosher wherein respondent was named as a subcontractor on the construction project. On February 13, 1979, respondent filed an answer to the cross-complaint of Prosher.

Appellant on July 11, 1979, prepared and served upon respondent a copy of the third amended complaint by mailing copies addressed to Robert A. Buck of the firm of Buck, Molony, Nimmo & Ammirato, the attorneys who had filed the answer of respondent to Prosher’s cross-complaint. Respondent was served and sued as Doe 59. Proof of service by mail was filed with the court on July 12, 1979. The three-year period for service and return of summons pursuant to Code of Civil Procedure section 581a, subdivision (a) expired August 16, 1979.

On August 16, 1979, respondent served a notice of motion and motion to quash service of process and on October 22, 1979, the motion came on regularly for hearing in department 84 of the superior court. The court, citing

Botsford

v.

Pascoe

(1979) 94 Cal.App.3d 62 [156 Cal.Rptr. 177] granted the motion to quash stating that the answer of respondent to the cross-complaint was not an appearance in the original action. This appeal followed.