Shipley v. Sugita (50 Cal. App. 4th 320, 1996)

Opinion

CORRIGAN, J.

A.D. Shipley appeals from a judgment of dismissal. He claims his attorney’s alleged misconduct excuses his failure to timely serve his complaint and summons under Code of Civil Procedure section 583.210. We affirm.

Facts

On September 10, 1991, Shipley filed a complaint, in propria persona, for breach of contract against Daijiro Sugita, a citizen and resident of Japan. In October 1991, Sugita’s attorney informed Shipley that service of the complaint and summons would require compliance with “the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” (the Convention). (See § 413.10.) In November 1991, Shipley attempted to serve Sugita by mail. Because service by mail is not authorized by the Convention, the court declared service invalid. The court also rejected two subsequent efforts to serve Sugita by mail. On May 27, 1992, Shipley filed an amended complaint.

In December 1992, Shipley retained Karen Anderson Ryer as his attorney. Shipley contends that Ryer informed him in February 1994 that Sugita had been properly served under the Convention. Thereafter, when Shipley asked Ryer for the proof of service, she claimed she had not yet received it from embassy officials. In December 1994, Shipley fired Ryer. When she refused to provide him with his case file, he filed allegations against her with the State Bar.

On September 5, 1995, Sugita moved to dismiss the civil complaint for failure of service under section 583.210. In October 1995, Ryer allegedly informed Shipley that Sugita had not in fact been properly served. Shipley apparently effected service in compliance with the Convention on December 25, 1995. Consequently, Sugita was served three years, two hundred and twelve days after filing of the amended complaint. Sugita’s motion to dismiss was granted on January 11, 1996.

Discussion

Shipley contends the statutory period for service of the complaint aiid summons on Sugita should have been tolled during that period of time when he erroneously believed, based upon his own lawyer’s false statements, that Sugita had been properly served. In order to address this contention, we must examine the relevant statutory scheme.

Former sections 581a and 583 provided for the dismissal of civil actions for lack of diligent prosecution. These sections were designed to promote trial before evidence is lost or destroyed, protect defendants from the annoyance of actions that remain undecided indefinitely, and assist the courts in clearing crowded calendars. (17 Cal. Law Revision Com. Rep. (June 1983) pp. 909-910.) The policy behind these sections conflicts with the strong policy in favor of resolving litigation on the merits rather than on procedural grounds. Consequently, the courts developed various exceptions to the dismissal statutes. (Id. at p. 910.) To remedy this confusing confluence of case law and statute, the Legislature revised the statutory scheme in 1984 by repealing sections 581a and 583 and adding a series of new statutes. (Stats. 1984, ch. 1705, §§ 3-5, pp. 6176-6180; see 17 Cal. Law Revision Com. Rep., supra, at p. 910; Letter to Governor Deukmejian from State Senator Keene re Sen. Bill No. 1366, Sept. 10, 1984.) By this legislation, chapter 1.5, consisting of four articles, was added to title 8, part 2 of the Code of Civil Procedure: (1) definitions and general provisions (§§ 583.110-583.160); (2) mandatory time for service of summons and complaint (§§ 583.210-583.250); (3) mandatory time for bringing action to trial or new trial (§§ 583.310-583.360); and (4) discretionary dismissal for delay (§§ 583.410-583.430).

Here, we are chiefly concerned with article 2, regarding the mandatory time for service on the defendant. Section 583.210 requires that the summons and complaint be served on the defendant within three years of the filing of the complaint. Section 583.250, subdivision (b) provides: “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” This subdivision was meant to clarify that the service requirement is mandatory, though not jurisdictional, and that the courts may not develop additional exceptions not provided for in the statutory scheme. (17 Cal. Law Revision Com. Rep., supra, at p. 912.) Thus, in order to prevail, Shipley must demonstrate that his circumstances fall within one or more of the statutory exceptions.

Section 583.240 enumerates certain statutory exceptions: “In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [H (a) The defendant was not amenable to the process of the court. [U (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. flD (c) The validity of service was the subject of litigation by the parties. [