Kuchins v. Hawes

Opinion

SMITH, Acting P. J. On November 10, 1986, plaintiff and appellant Diane Kuchins filed a complaint against defendants Paul Hawes, Pacific Bell (Pac Bell), and American Protective Services, Inc. (APS). Plaintiff did not serve the complaint on any named defendant until May 10, 1989, some two and one-half years later. The trial court dismissed plaintiff’s action for failure to serve the complaint on a timely basis, pursuant to Code of Civil Procedure sections 583.410 and 583.420.1

Plaintiff appeals, claiming the trial court abused its discretion in granting defendants Hawes’s and Pac Bell’s motions to dismiss her complaint for failure to serve the complaint within two years. We conclude that there was no abuse of discretion in granting the dismissals and affirm the judgment of the lower court.

Background

Plaintiff was allegedly injured by an automobile driven by defendant Hawes, an employee of defendant Pac Bell. On November 10, 1986, plaintiff filed a complaint against Hawes, Pac Bell, and APS. However, she did not [538]immediately serve the complaint on any defendant. On November 25, 1986, Pacific Compensation (Pac Comp) filed a complaint in intervention, also naming Hawes, Pac Bell, and APS.

On June 20, 1988, Pac Comp served its complaint in intervention on Hawes, which he answered on August 5, 1988. Pac Comp served its complaint in intervention on Pac Bell in February 1988, which it answered on June 12, 1989. The record does not indicate when or if APS was served with the complaint in intervention, but APS filed a motion to dismiss it, which the court granted on September 19, 1988.

On May 5, 1989, plaintiff’s counsel wrote to counsel for Hawes, confirming a telephone discussion regarding postponement of depositions and service of plaintiff’s complaint. This letter is the only evidence in the record of plaintiff’s attempt at discovery or prosecution of her action prior to May 10, 1989.

On May 10, 1989, two and one-half years after originally filing it, plaintiff served the complaint on Hawes, Pac Bell and APS. All three defendants answered, after which there were intermittent flurries of discovery relating to both the complaint and complaint in intervention.

On August 2, 1989, Pac Bell moved to dismiss plaintiff’s complaint on the grounds that she had failed to serve it within two years. Hawes and APS filed similar dismissal motions on the same grounds.