Woodruff v. McDonald's Restaurants

Opinion

THE COURT.

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This is an appeal from a judgment of dismissal entered pursuant to Code of Civil Procedure section 581a on account of plaintiff’s failure to return the summons within three years. The question presented is whether a stipulation entered into by plaintiff’s attorney and a representative of defendant’s insurance carrier, granting defendant an open extension of time in which to plead, constitutes a general appearance so as to preclude dismissal under section 581a.

On April 2, 1973^ plaintiff filed a complaint for damages for personal injuries sustained in a fall on the premises of defendant, McDonald’s Restaurants.

[657]

On April 25, 1973, the attorney for plaintiff and a representative of defendant’s insurance carrier entered into a verbal agreement whereby defendant would have an open extension of time to plead, terminable on 15 days’ notice. On May 2, 1973, a representative of defendant’s insurance carrier confirmed this stipulation with a letter to plaintiff’s attorney.

On July 13, 1976, plaintiff’s attorney requested defendant to file its answer within 15 days. This request was directed to the insurance carrier. On July 29, 1976, defendant’s attorney requested and received an additional 10 days in which to file a responsive pleading.

On August 9, 1976, defendant filed a motion to dismiss pursuant to Code of Civil Procedure section 581a. The trial court granted the motion and entered judgment in favor of defendants. Plaintiff now appeals.

Section 581a, subdivision (a), provides that upon a plaintiff’s failure to return the summons within three years after commencement of the action the action shall be dismissed.

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An exception is made where the defendant has made a general appearance in the action.

A written stipulation extending time in which to plead which discloses an intent to submit to the jurisdiction of the court constitutes a general appearance.