Hughes & Ladd, Inc. v. Rogue River Paving Co.

Opinion

EMERSON, J.* The within action was commenced by the filing of a complaint in the superior court on September 6, 1968. More than seven months later, on April 24, 1969, plaintiff obtained an order for service of summons upon defendant, a foreign corporation, by deliveiy to the Secretary of State of California. (Code Civ. Proc., § 411, repealed 1969, replaced by Code Civ. Proc., § 416.10 effective 1970.) Service, was effected on a date not shown by the record and on August 22, 1969, approximately 11 'A months after the complaint was filed, defendant filed its answer.

The case was not brought to trial within five years from the commencement of the action and, on October 30, 1973, on motion of the [313]defendant, was dismissed pursuant to section 583, subdivision (b), of the Code of Civil Procedure.1 Plaintiff appeals from the ensuing judgment, arguing that the five:year statutory period should have been tolled; i.e., extended, in either of two respects.

Plaintiff first urges that the trial court erred by not tolling the 5-year period for the time which elapsed between the filing of the complaint and the filing of defendant’s answer; namely, 11 .months and 16 days. This argument is completely without merit. Code of Civil Procedure section 583 was amended in 1933 to provide specifically that the 5-year period should commence to run upon the filing of the complaint. (See Superior Oil Co. v. Superior Court (1936) 6 Cal.2d 113, 116 [56 P.2d 950].)

Plaintiff’s next contention is that the trial court should have tolled the five-year period by the time which elapsed between the filing of the complaint and the obtaining of the order for publication of summons. This argument is based upon the proposition that defendant, being a foreign corporation, was not amenable to the process of the court until the order for service of summons was obtained. Plaintiff claims that it was required to spend some seven months of time in endeavoring to locate some agent or officer of defendant in California before obtaining said order. With commendable frankness, plaintiff tells us that as authority for this proposition it is relying solely upon Code of Civil Procedure section 583, subdivision (f), and the case of People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129 [92 Cal.Rptr. 828]. However, we find nothing in statutory or case law to support this conclusion.

Code of Civil Procedure section 411 (now § 416.10), and by reference sections 6500-6504 of the Corporations Code, provided to appellant a means of obtaining service of summons upon respondent. This method was ultimately used by appellant and could have been used by it at any time after the complaint was filed.