Paul v. Drost

California Court of Appeal Nov 7, 1986 No. No. B016575Published

Before: Hofstetter

AI Brief

AI-generated · verify before citing

Holding. The court affirmed the dismissal of a legal malpractice action for failure to serve the summons within the three-year period required by Code of Civil Procedure section 581a, holding that the pendency of a related medical malpractice action did not excuse the delay.

Issues

Whether the three-year period for serving a summons under Code of Civil Procedure section 581a is tolled by the pendency of a related action.
Whether the trial court abused its discretion in finding that the plaintiff failed to exercise reasonable diligence in serving the summons.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The problem with appellant’s argument is that it is directed to the difficulties of bringing a case to trial rather than to whether it was impracticable or futile to serve and return process.”

“the desire to await the outcome of the . . . [other] case, will not excuse a long and otherwise unexplained period of neglect in serving the summons.”

Opinion

HOFSTETTER, J.* Billy Paul, Jr. (Paul or appellant), filed a complaint on September 24, 1981, for legal malpractice against Donald James Drost [1409](Drost or respondent) and others. Summons and complaint were not served on Drost until June 6, 1985. On July 5, 1985, Drost appeared specially in the action and moved to quash service and dismiss the action. Paul opposed the motion. On August 29, 1985, the motion was granted and the case dismissed.

Background

On August 31, 1978, appellant Paul filed a complaint in the superior court as a result of injuries sustained from a dog bite on September 2, 1977. His attorney at that time, James H. Goodwin, died, and Paul signed a substitution of attorney form August 14,1979, naming Drost as his attorney. In July or August of 1980, Drost was substituted out of that case. Thereafter, Paul filed a medical malpractice action through his new attorney. That action was ultimately consolidated with the dog bite case, and was settled1 at a mandatory settlement conference on January 17, 1984, and ultimately dismissed April 10, 1984.

In the legal malpractice action against Drost, Paul alleges that Drost was negligent in not filing a complaint in a timely manner for personal injuries suffered by Paul ás a result of malpractice of the physicians treating Paul for the dog bite injury.

In granting the motion to dismiss this case, the trial court found “no reason why responding party could not have served and filed summons after the conclusion of the action—responding party had 6 months from the conclusion of the action to do so before the 3 years ran.”

Contentions on Appeal

The appellant contends that the three-year limitation on serving and returning of the summons is tolled in this case by the period of the pendency of the medical malpractice action, since it would be “impossible, impractical or futile” to proceed with the legal malpractice action until the medical malpractice action was resolved. Ancillary to this contention are two other claims of error: (1) That the trial court did not expressly make findings on the tolling issue, and (2) that the actual period of the tolling is a question of fact that could not be resolved in a summary proceeding such as this motion to quash service and dismiss.

Paul v. Drost

AI Brief

More from California Court of Appeal

Related research

AI Brief