Plaintiff appeals from an order granting the motion of defendants Carlyle Miller and Dolores Miller, his wife, to dismiss this action under the following provision of section 581a of the Code of Civil Procedure: "[A]ll actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced ... unless the summons shall be served and return thereon made within three years after the commencement of said action, ..."
Appellant contends that this provision is not controlling here because of the following additional provision in section 581a: "But all such actions may be prosecuted, if general appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served; ..." (italics added).
Thus the crucial issue before us is whether respondents made a general appearance within three years after May 5, 1958, when this in personam action was commenced. Appellant relies upon three written instruments executed by respondents and filed in said action within the three-year period, coupled with subsequent acts and conduct of respondents which showed their intent to appear generally and not specially.
Section 1014 of the Code of Civil Procedure provides in pertinent part as follows: "A defendant appears in an action when he answers, demurs, files a notice of motion to strike, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him." (Italics ours.)
This stipulation recited that defendant Monroe & Miller, Ltd., a corporation, and other corporate and individual defendants had filed a motion to strike and a demurrer to plaintiff's complaint, each of which was then pending and undetermined, and that respondents need not "appear, plead or otherwise move" until the court had ruled on the demurrer and motion and they had received notice of the ruling by mail.
The stipulation further provided that in the event "said Demurrer is sustained with leave granted to said Plaintiff by said Court to amend said Complaint, any amended complaint thereafter filed by Plaintiff herein may be served upon said Carlyle Miller and Dolores Miller by mail as hereinabove in paragraph (4) set forth." (Italics added.)
Paragraph (4) provides that mail should be addressed to respondents at "Post Office Box 297, Aptos, California, or at such other address as they may hereafter furnish in writing to one of the attorneys of record for said Plaintiff for which said mailing may be established by an Affidavit of Mailing." (Italics ours.)
By the foregoing stipulation respondents in effect waived personal service of a copy of the complaint and summons as provided in section 410 of the Code of Civil Procedure and agreed to accept service of the complaint, as and when amended, by mail.
On January 29, 1960, respondent Carlyle Miller, designating himself as "Attorney, In Propria Persona, and for Defendant, Dolores Miller," executed the following notice:
"To: Plaintiff above-named and to Messrs. Hudson, Bachan & Skillicorn and Courtney L. Moore, Esq., her attorneys:
"In pursuance of `Stipulation Extending Time' by and between Dolores Miller and the undersigned, two of the defendants
This notice was served by mail on appellant's attorneys on January 30, 1960, and filed with the clerk of the court on February 2, 1960.
Appellant filed an amended complaint on March 2, 1960, and attached to it an affidavit of mailing showing that service had been made upon respondents in accordance with said stipulation and notice.
A comparable situation was involved in Merner Lumber Co. v. Silvey, 29 Cal.App.2d 426 [84 P.2d 1062]. There the summons was issued on February 27, 1932, but not served. On March 15, 1932, the plaintiff's attorney and the attorney for three of the defendants executed and filed a stipulation that these defendants "may have to and including the 20th day of March, 1933 [one year later], in which to answer the complaint in the above-entitled matter."
The court stated that "the equivalent of service and return [of summons] was accomplished by the stipulation dated March 15, 1932." (P. 429.) (Italics added.)
Following the service of the amended complaint upon respondents, the parties entered into an additional stipulation, dated July 26, 1960 and filed on August 1, 1960, in which it was "AGREED that defendants CARLYLE MILLER and DOLORES K. MILLER will file a pleading to plaintiff's First Amended Complaint within ten (10) days after written notice to do so mailed to...." (Italics ours.)
It should be noted that the respondents agreed, in the second stipulation, to limit themselves to the filing of a "pleading," whereas in the earlier stipulation it might be argued that they had the right to question whether they had retained the right to object to jurisdiction under the wording, "appear, plead, or otherwise move."
Section 420 of the Code of Civil Procedure defines "pleadings"
Respondents correctly state that the first pleading filed by them was a demurrer to appellant's amended complaint, on July 7, 1961, which was two months after the expiration of the three-year period. However, we have concluded that respondents had already made a general appearance prior to the expiration of said period.
Appellant lists the numerous legal proceedings participated in by respondents between July 7, 1961, and February 25, 1963, on which latter date respondents filed "POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO CONTINUE PRE-TRIAL CONFERENCE AND TRIAL." These proceedings were all directed to the merits of the case, tending to show a practical interpretation by respondents that the two stipulations and the notice executed and filed within the three-year period constituted a general appearance by them. (Cf. Barham v. Barham, 33 Cal.2d 416, 423 [202 P.2d 289]; H.S. Crocker Co., Inc. v. McFaddin, 148 Cal.App.2d 639, 647 [307 P.2d 429].)
It was nine days later, on March 6, 1963, that respondents filed their notice of motion to dismiss the action under the provisions of section 581a.
Until that time everything in the record, commencing with the stipulation filed on September 26, 1958, showed an intent on the part of respondents to submit themselves to the jurisdiction of the court.
Respondent Carlyle Miller demonstrated his familiarity with section 581a as early as November 15, 1961, when he filed a motion to dismiss the action as to defendant H.O. Heiner on the ground that summons had not been served upon him or return thereon made within three years after the commencement of the action.
At that time (November 15, 1961) it was equally true that summons had not been served upon respondents or return thereon made, so that, if it had not been that respondents themselves construed the instruments executed by them and filed during said three-year period as being a general appearance
Respondents cite and rely upon Davenport v. Superior Court, 183 Cal. 506 [191 P. 911]. In that case plaintiff served summons and complaint upon an officer of two foreign corporations, neither of which had ever done business in this state. Attorneys for these corporations obtained an order of court extending time to plead. Their motion thereafter made to quash service of summons was granted. Plaintiff argued that defendants had made a general appearance. The court held: "The order given by the judge to the defendants' attorneys extending the time within which the defendants might plead to the complaint in the action therein did not, under the circumstances of this case, have the effect of a general appearance in the action...." (Italics added.)
The court distinguished Roth v. Superior Court, 147 Cal. 604 [82 P. 246], Cooper v. Gordon, 125 Cal. 296 [57 P. 1006], and California etc. Co. v. Superior Court, 13 Cal.App. 65 [108 P. 882], as follows: "In each of these cases the court was considering the effect of stipulations between the attorneys for the respective parties, and it was, in effect, determined that the stipulations under consideration, under the circumstances there appearing, showed an intent to appear generally and not specially." (Italics added.)
In Brown v. Douglas Aircraft Co., 166 Cal.App.2d 232 [333 P.2d 59], a libel action was brought against certain individuals and a corporation. The corporation was not served. The individuals filed a demurrer. It was sustained and plaintiff was given leave to amend the complaint. The corporation's attorney, who also represented the individuals, entered into a stipulation with plaintiff's counsel that an amended complaint could be served on him instead of the corporation and that it would have 30 days following such service within which to answer or plead to the amended complaint.
The plaintiff did not amend the complaint. For reasons not pertinent here, the appellate court commented that "[t]his case is unusual and anomalous in that it is the plaintiff, not the defendant, who seeks to demonstrate that the defendant made no appearance in the case."
In holding that the corporation had made a general appearance, the court stated: "A general appearance is not necessarily a formal, technical step or act.... `Its principal application
Finally, respondents call attention to the enactment in 1955 of section 416.1 of the Code of Civil Procedure, the addition of the last (third) paragraph in section 581a of the Code of Civil Procedure and the change in the first paragraph therein of "appearance" to "general appearance."
Section 416.1 is not applicable herein because "service of summons" was never made upon respondents and their motion is for dismissal of the action under section 581a and is not a motion to quash service of summons. Holtkamp v. States Marine Corp., 165 Cal.App.2d 131 [331 P.2d 679], cited by respondents, involves a motion to quash service of summons made after defendant had secured several extensions of time within which to plead.
This provision takes care of the dilemma of a defendant who has made such a motion to dismiss but who is in danger of having a default judgment taken against him before he can obtain a ruling on the motion. Under the case law as it
Taylor, J., concurred.
I concur in the judgment. My disagreement is particularly directed to the portion of the opinion which holds the stipulation dated September 23, 1958 shows an intent on the part of respondents to submit themselves to the jurisdiction of the court. In my opinion, such construction entirely ignores the language of the agreement wherein respondents preserved their right to "appear, plead or otherwise move."
In my view, the trial judge's determination that this stipulation did not constitute an appearance or waiver was correct and being a reasonable construction of the document, is to be sustained by this court.
A petition for a rehearing was denied February 17, 1965, and respondents' petition for a hearing by the Supreme Court was denied March 24, 1965.