Duckett v. Superior Court

Opinion

GILBERT, J. Code of Civil Procedure1 section 583.210 requires that a complaint be served within three years of the filing of a complaint. Defendant in a personal injury action was served with a complaint after the three-year period had elapsed. Within the three-year period, however, he filed an answer to a complaint in intervention that was later dismissed prior to the service of the complaint. We hold that his answer to the complaint in intervention does not constitute a general appearance in the action. We therefore grant the petition to quash service of summons on him by plaintiff.

[1421]Background

On October 26, 1983, real parties Morris Skelton and George L. Rodriguez were operating a truck owned by their employer. The brakes failed and the truck crashed.

On October 23, 1984, they filed lawsuits against petitioner for personal injuries arising from the accident. Their complaints state that the brake failure was caused by faulty repairs made by petitioner.

On October 31, 1984, Beaver Insurance Company filed a complaint in intervention to recover the amount of workers’ compensation benefits it had paid to real parties as a result of the accident. (See Lab. Code, § 3852.) A copy of this pleading was duly served upon petitioner. Petitioner, however, had not as yet been served with real parties’ complaints.

On May 5, 1987, petitioner filed his answer to the complaint in intervention. On March 9, 1988, Beaver Insurance filed a request for dismissal of its complaint in intervention.

On March 16, 1988, after more than three years had passed since the filing of the complaints, real parties finally served petitioner with copies of their complaints. Petitioner promptly moved to quash upon the ground that he had not been served by real parties within three years of the commencement of the lawsuit. (§ 583.210.) Real parties opposed this motion by asserting that petitioner had made a general appearance when he filed an answer to the complaint in intervention.

On April 28, 1988, respondent superior court agreed with real parties’ position and denied the motion to quash. A petition for writ of mandate was denied by this court. Petitioner next sought review before the California Supreme Court, which ordered the matter transferred to this court with directions to issue an alternative writ.