Majority
Opinion
By means of petition for writ of mandate, defendant Los Angeles County (County) is seeking reversal of the denial of a motion to dismiss for delay in prosecution. We find the filing of a government tort claim (Gov. Code, § 905 et seq.) does not change the statutory requirement that a plaintiff exercise reasonable diligence in serving and prosecuting an action against a government entity. Based on the unreasonable and inexcusable delay in serving the summons and complaint upon County, we grant a peremptory writ in the first instance and direct the respondent court to enter a dismissal of this action.
Discussion
Plaintiffs Quintero allege they sustained damages for personal injuries, assault, battery and false arrest on January 26, 1984. A government tort
After receiving notice of the court’s intent to dismiss, Quintero’s attorney filed an amended complaint and, on January 6, 1988, served County. The court then denied its own motion to dismiss and ordered the matter to arbitration. Notice of ruling was served on February 16, 1988.
County then filed a motion to dismiss under section 583.420, subdivision (a)(1).[3] In opposing the motion to dismiss, Quintero’s counsel contended (1) the filing of the government tort claim was sufficient to give County notice of the issues to be raised so that County can not assert prejudice resulting from the delay; (2) informal investigation and discovery was conducted by plaintiff’s attorney during the two-year, eleven-month period between the filing of the complaint and the service on County; and (3) the action should be determined on the merits.
County’s motion to dismiss was denied on April 20, 1988, based on the finding that filing of the government claim “tempers and changes the application of the [dismissal] statute because the main purpose of limitations and dismissal for delay or lack of diligence is so that stale claims not be litigated without sufficient evidence and ... so that you don’t get ambushed. But you can’t get ambushed when you have a claim [filed].”
I. The Action Was Not Prosecuted With Reasonable Diligence.
Section 583.420, effective January 1, 1985, provides that an action may be dismissed if service is not made within two years after the action is commenced or if the action is not brought to trial within three years. Section 583.410 provides for dismissal for delay in prosecution if it “appears to the court appropriate under the circumstances.” The intent of the statutory scheme is “ ‘to compel reasonable diligence in the prosecution of an action after it has been commenced. . . .’” (Black Bros. Co. v. Superior Court (1968) 265 Cal.App.2d 501 , 505-506 [ 71 Cal.Rptr. 344 ], italics added.)[4]
1 Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
2 In pertinent part section 583.420 provides: “(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: (1) Service is not made within two years after the action is commenced against the defendant.”
3 Disapproved on unrelated grounds in Denham v. Superior Court (1970) 2 Cal.3d 557 , 563 [ 86 Cal.Rptr. 65 , 468 P.2d 193 ], and in Wolfson v. Personal Travel Service, Inc. (1971) 3 Cal.3d 909 , 911-912 [ 92 Cal.Rptr. 286 , 479 P.2d 646 ].)
The law is well established that the investigation or procurement of evidence does not excuse a long unexplained delay in serving the complaint. (Black Bros. Co. v. Superior Court, supra, 265 Cal. App.2d at p. 509.) Section 583.240, subdivision (d) was made effective January 1, 1985, to codify the law that failure to discover facts or evidence does not make impossible, impracticable or futile the service of the complaint. Quintero’s sole excuse that service of the complaint was delayed because his counsel was conducting discovery does not provide a reasonable basis for denial of the motion to dismiss and does not justify the failure to serve County within the time period set forth in section 583.420, subdivision (a)(1).
The purpose of the dismissal statutes is to expedite the administration of justice by requiring reasonable diligence in the prosecution of civil lawsuits and to avoid prejudice to the defendant caused by the dissipation of evidence, thereby limiting the defendant’s ability to defend the action. (Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50 , 58 [ 242 Cal.Rptr. 676 ].) Neither section 583.420, nor rule 373(e) makes a distinction between service upon government entities or upon any different category of defendants. (Ibid.)
Here, Quintero has provided no reasonable basis for the failure to serve County for almost three years after the filing of the complaint and almost
4 California Rules of Court, rule 373(e) provides: “In ruling on the motion the court shall consider all matters relevant to a proper determination of the motion, including the court’s file in the case and the affidavits and declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; the diligence in seeking to effect service of process; the extent to which the parties engaged in any settlement negotiations or discussions; the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; the nature and complexity of the case; the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; the nature of any extensions of time or other delay attributable to either party; the condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial; whether the interests of justice are best served by dismissal or trial of the case; and any other fact or circumstance relevant to a fair determination of the issue. The court shall be guided by the policies set forth in section 583.130 of the Code of Civil Procedure.”
II. Prejudice Is Inferred When, as Here, the Time Between Filing and Service Is Protracted.
As a general rule, courts are receptive to an inference of prejudice where there has been an unreasonable delay in service. (Luti v. Graco, Inc. (1985) 170 Cal.App.3d 228 , 233 [ 215 Cal.Rptr. 902 ].) “An unjustified delay in serving the summons and complaint is accorded less appellate tolerance than one in which service is timely but the case is not diligently pursued.” (Ibid.)
In Lopez v. Larson (1979) 91 Cal.App.3d 383 [ 153 Cal.Rptr. 912 ], the court held “Delay in effecting service constitutes a particularly pernicious form of delay in terms of potential prejudice, for the defendant during the period of that delay may be unaware that the action has been filed and thus not alerted to the necessity for making discovery, interviewing witnesses and preserving evidence essential to his defense. Even if witnesses do not become unavailable, their memories of details such as times and dates and the specific words used in critical conversations will fade.” (Id. at pp. 402-403.)
The appellate cases which hold actual prejudice must be shown (see, e.g., Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019 [ 213 Cal.Rptr. 712 ]) were impliedly overruled in Blank v. Kirwan (1985) 39 Cal.3d 311 [ 216 Cal.Rptr. 718 , 703 P.2d 58 ], in which our Supreme Court affirmed a discretionary dismissal although no prejudice had been shown, holding that the legislative policy underlying the dismissal statutes “ ‘. . .is not grounded solely in prejudice caused by delay to a defendant. Its purpose, too, is to expedite the administration of justice by compelling every person who files an action to prosecute it with promptness and diligence.’ [Citations.]” (Id. at p. 332, italics added.)
Several courts have recognized that Hurtado and its progeny are irreconcilable with Blank and should no longer be considered. (See, e.g., Longshore v. Pine (1986) 176 Cal.App.3d 731 [ 222 Cal.Rptr. 364 ]; Schumpert v. Tishman Co. (1988) 198 Cal.App.3d 598 , 602-606 [ 243 Cal.Rptr. 810 ].) The Schumpert court held a defendant need make no showing of actual
The superior court file in this action reflects a total absence of activity between the filing of the complaint on January 1, 1985, and the court’s notice of intent to dismiss on November 6, 1987. Quintero’s argument that he was conducting informal discovery during the lengthy delay merely provides support for County’s contention that it was prejudiced in that the delay denied County the reasonable opportunity to question the witnesses and preserve their testimony before memories of details faded. An inference of prejudice is especially appropriate here as the case is based on the allegedly wrongful conduct of individuals and the extent to which they and witnesses recall the incident giving rise to this action. As in Schumpert, nearly four years passed between the incident and service of the complaint, effectively denying County the right to gather evidence and conduct meaningful discovery. “To accept plaintiff’s argument would, in effect, reward unreasonable procrastination to the detriment of defendants.” (198 Cal.App.3d at p. 607.)
III. The Filing of a Government Tort Claim Does Not Excuse Failure to Exercise Diligence in Prosecution of an Action After the Filing of the Complaint.
In Black Bros. Co. v. Superior Court, supra, 265 Cal.App.2d 501 , the plaintiff made the same argument as urged here, namely, defendant was not prejudiced by delay in prosecution of the action because defendant and defendant’s insurer had been notified of the claim and could have conducted an investigation. In reversing the denial of defendant’s motion to dismiss, the Black Brothers court found knowledge of the claim was “quite beside the point” since neither the defendant nor defendant’s insurer was aware that the complaint had been filed. (Id. at pp. 507-508.) “ ‘It is the duty of a plaintiff to act, and to act with reasonable promptness and diligence, and defendant need make no move until the law requires him to do so “in response to the movements of plaintiff at the various stages of the litigation.” ’ ” (Id. at p. 506.)
The record here shows County was not aware of the pendency of this civil action until January 6, 1988. The filing of a government tort claim,
The circumstances here are not unlike those in Adams v. Roses (1986) 183 Cal.App.3d 498 [ 228 Cal.Rptr. 339 ], in which plaintiffs contended the difficulty in obtaining a certificate of merit in a medical malpractice case excused the failure to diligently prosecute the action. The Adams court concluded the time during which plaintiff was obtaining the certificate of merit had no effect upon the discretionary dismissal statutes. (Id. at pp. 503505.)
The purposes of the dismissal statutes are defeated by the carving out of exceptions to the statutes based on who the defendant is. (Clark v. Stabond Corp., supra, 197 Cal.App.3d at p. 58.) Permitting a plaintiff who has displayed a total lack of diligence in the prosecution of the civil action and who has failed to effect service during a lengthy unexcusable delay to pursue a lawsuit merely because the defendant is a public entity clearly frustrates the policy underlying the dismissal statutes. While plaintiffs must satisfy the government claims acts (Gov. Code, § 905 et seq.) as a prerequisite to tort suits against public entities, the Legislature has not excused those plaintiffs from the statutory mandate to diligently prosecute their tort actions. The dismissal statutes apply to all plaintiffs and to all defendants (Clark v. Stabond Corp., supra, 197 Cal.App.3d at p. 58), including those defendants which are public entities.
Clearly, it is the filing of the complaint which begins the running of the statutory time periods, mandating that a plaintiff exercise reasonable diligence in serving and prosecuting the action.
A defendant, including a defendant who is a government entity, is under no duty to search the records to see if a complaint has been filed. (Black Brothers Co. v. Superior Court, supra, 265 Cal.App.2d at p. 508.) There is no duty to investigate when there is no notice of the filing of a lawsuit.
Accordingly, we find: (1) the filing of a government tort claim does not satisfy the purpose of the dismissal statutes as to delay after the filing of a
Disposition
Having notified all parties of our intention to issue a peremptory writ in the first instance and having fully reviewed the contentions made in opposing the issuance of a writ, we conclude the requirements of Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ] are satisfied and deem this a proper case for issuance of the relief requested in the first instance.
Let a peremptory writ of mandate issue directing the respondent court to vacate its order denying the motion to dismiss and to enter instead a dismissal of this action.
The petition of real party in interest Quintero for review by the Supreme Court was denied November 9, 1988.
Footnotes
- * Before Klein, P. J., Arabian, J., and Croskey, J.
Cases cited
- Black Bros. v. Superior Court 265 Cal.App.2d 501 at 505-506 p. 1208, p. 1211
- Clark v. Stabond Corp. 197 Cal.App.3d 50 at 58 p. 1209
- Martindale v. Superior Court 2 Cal.3d 568 at 574 p. 1210
- Salas v. Sears, Roebuck & Co. 42 Cal.3d 342 at 347 p. 1210
- Luti v. Graco, Inc. 170 Cal.App.3d 228 at 233 p. 1210
- Lopez v. Larson 91 Cal.App.3d 383 p. 1210
- Hurtado v. Statewide Home Loan Co. 167 Cal.App.3d 1019 p. 1210
- Blank v. Kirwan 39 Cal.3d 311 p. 1210
- Longshore v. Pine 176 Cal.App.3d 731 p. 1210
- Schumpert v. Tishman 198 Cal.App.3d 598 at 602-606 p. 1210
- Hocharian v. Superior Court 28 Cal.3d 714 p. 1212
- Adams v. Roses 183 Cal.App.3d 498 p. 1212
- Palma v. U.S. Industrial Fasteners, Inc. 36 Cal.3d 171 p. 1213