Monrovia Hospital Co. v. Superior Court

MOSS, J. Petitioner Monrovia Hospital Company (“Monrovia”) seeks a writ of mandate to compel the respondent Superior Court of Los Angeles to enter an order granting [608]petitioner’s motion to quash service of summons or, alternatively, a writ of prohibition to restrain respondent court from taking any further proceedings or making any further orders affecting petitioner in the pending civil action hereinafter described.

On January 4, 1963, the plaintiffs (shareholders in Monrovia and real parties in interest) commenced an action against Mr. and Mrs. Petrie and Monrovia seeking an order requiring the defendants Petrie to surrender stock certificates of Monrovia obtained in breach of an alleged oral agreement and enjoining defendants Petrie from voting those shares. The plaintiffs also sought an order requiring Monrovia to cancel the stock certificates held by the Petries alleging that Monrovia had not been paid for such stock.

Upon receipt of the complaint in that action, Monrovia filed a notice of motion for an order requiring the plaintiffs to post security. This motion was granted and the plaintiffs were directed to deposit security of $1,000. On April 5, 1963, Monrovia’s demurrer to the complaint was sustained with 20 days leave to amend. On April 23, 1963, the plaintiffs elected not to amend and dismissed the action as to petitioner Monrovia and its directors. On May 9, 1963, in the same action, the motion of the defendants Petrie to dismiss the complaint was granted on the ground that dismissal of Monrovia constituted the removal of an indispensable party.

On June 12, 1963, the plaintiffs filed a second action (the present one) naming only the Petries as defendants but setting forth substantially identical allegations to those made in the former action. On September 10, 1963, plaintiffs filed a first amended complaint adding Monrovia as a party defendant. On November 30, 1966, defendants Petrie filed notice of motion to dismiss the complaint against Monrovia pursuant to Code of Civil Procedure section 581a on the ground that the action had been commenced more than three years prior to service, and also for an order of dismissal as to the Petries on the ground that Monrovia was an indispensable party. On December 9, 1966, an order was made granting the motion to dismiss as to Monrovia. Thereafter on December 20, 1966, the court found Monrovia to be an indispensable party under Code of Civil Procedure section 389 and ordered the plaintiffs to make Monrovia a defendant. On December 28, 1966, the same court amended its order of December 20, 1966 to add, “Plaintiffs’ motion to amend the 1st Amended Complaint is granted.” On January 16, 1967, the plaintiffs filed a second