And some courts and commentators construing section 581a have assumed that a return must satisfy all applicable requirements for proof of service. ( Modoc Landetc. Co. v. Superior Ct. (1900) 128 Cal. 255, 256 [ 60 P. 848]; Torgersen v. Smith (1979) 98 Cal.App.3d 948, 952 [ 159 Cal.Rptr. 781]; M. Lowenstein Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 [ 145 Cal.Rptr. 814]; KaiserFoundation Hospitals v. Superior Court (1975) 49 Cal.App.3d 523, 525-527 [ 122 Cal.Rptr. 432]; Drinnon v. Oliver (1972) 24 Cal.App.3d 571, 584 [ 101 Cal.Rptr. 120]; Bernstein v. Superior Court (1969) 2 Cal.App.3d 700, 702 [ 82 Cal.Rptr. 775]; Lambert v. Conrad (1960) 185 Cal.App.2d 85, 88-89 [ 8 Cal.Rptr. 56]; Ransome-Crummey Co. v. Wood (1919) 40 Cal.App. 355, 357 [ 180 P. 951]; 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 665, p. 1450.) However, the purposes of section 581a — to assure that lawsuits are prosecuted diligently and that defendants may prepare a defense while evidence and witnesses are still available ( Hocharian, supra, 28 Cal.3d at p. 724) — are satisfied when the plaintiff provides the court with notice that he or she has completed all acts necessary to effect service.
(Cf. Flamer v. Superior Court, supra, 266 Cal.App.2d at p. 912 with Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 722 [ 104 Cal.Rptr. 897]; Bernstein v. SuperiorCourt (1969) 2 Cal.App.3d 700, 704 [ 82 Cal.Rptr. 775]; Highlands Inn, Inc. v. Gurries (1969) 276 Cal.App.2d 694, 697 [ 81 Cal.Rptr. 273]; Black Bros. Co. v. Superior Court,supra, 265 Cal.App.2d at p. 505; Dresser v. Superior Court (1964) 231 Cal.App.2d 68, 73 [ 41 Cal.Rptr. 473].) The statute can be termed "mandatory" in the sense that a trial court must dismiss if the plaintiff fails to prove reasonable diligence in attempting to serve and return summons.
(2) "It is equally well settled that where summons has not been served and returned and where the defendant has made no general appearance within the three-year period, the dismissal provisions of Code of Civil Procedure section 581a are mandatory and jurisdictional." ( Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 722 [ 104 Cal.Rptr. 897]; Bernstein v. Superior Court (1969) 2 Cal.App.3d 700, 702-703 [ 82 Cal.Rptr. 775]; Frohman v. Bonelli (1949) 91 Cal.App.2d 285, 287 [ 204 P.2d 890]; and Chilcote v. Pacific Air Transport (1937) 24 Cal.App.2d 32, 34 [ 74 P.2d 300].) Section 1014 of the Code of Civil Procedure purports to define what constitutes an appearance as follows: "A defendant appears in an action when he answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. . . ."
Unless this "service" comes within the exceptions expressly or impliedly stated in this section, dismissal of the action was mandatory, whether upon the motion of these defendants or on the court's own motion. ( Bernstein v. Superior Court (1969) 2 Cal.App.3d 700, 702-703 [ 82 Cal.Rptr. 775].) Plaintiff argued in support of his opposition to the motion to dismiss that the letter from P.E.
We disapprove those cases to the extent that they are inconsistent with Wyoming Pacific or with this present opinion. See also Bernstein v. Superior Court (1968) 2 Cal.App.3d 700, 704 [ 82 Cal.Rptr. 775], in which the court "assumed" that an estoppel may bar dismissal under section 581a, but found no estoppel on the facts before it. We conclude that a defendant, although not served with summons within three years of the commencement of the action, may be estopped to move to dismiss that action under section 581a It is contended, however, that estoppels under section 581a should be limited to those two circumstances in which previous decisions had imposed estoppels under sections 581a or 583: (a) a defendant makes a misrepresentation to a plaintiff who is not represented by counsel ( Flamer v. Superior Court (1968) 266 Cal.App.2d 907 [ 72 Cal.Rptr. 561]; or (b) a defendant stipulates in open court to an extension of the statutory period (see Woley v. Turkus (1958) 51 Cal.2d 402 [ 334 P.2d 12]; Govea v. SuperiorCourt (1938) 26 Cal.App.2d 27 [78 Cal.Rptr. 433]).
Notwithstanding, plaintiffs waited until July 3 to serve defendant and delayed the filing of the return until July 23. Responsibility for the failure to comply with the requirements of section 581a rests solely with plaintiffs. (Lack of diligence found in the following cases: Ippolito v. Municipal Court (1977) 67 Cal.App.3d 682, 687-688 [ 136 Cal.Rptr. 795]; Schering Corp. v. Superior Court (1975) 52 Cal.App.3d 737, 743 [ 125 Cal.Rptr. 337]; Watson v. Superior Court, supra, 24 Cal.App.3d 53, 59; Bernstein v. Superior Court (1969) 2 Cal.App.3d 700, 704-705 [ 82 Cal.Rptr. 775]; Smith v. Herzer (1969) 270 Cal.App.2d 747, 752 [ 76 Cal.Rptr. 77]; and Chilcote v. Pacific Air Transport (1937) 24 Cal.App.2d 32, 36 [ 74 P.2d 300].) (7) Plaintiffs' affidavits indicate that defendant may have had knowledge of the complaint.
The dismissal provisions of section 581a, with certain exceptions, are mandatory and "jurisdictional" in the sense that once a case comes within its terms dismissal of the action is the only course the court can take. ( Busching v. Superior Court (1974) 12 Cal.3d 44, 50 [ 115 Cal.Rptr. 241, 524 P.2d 369]; Bernstein v. Superior Court (1969) 2 Cal.App.3d 700, 702 [ 82 Cal.Rptr. 775] ; Lambert v. Conrad (1960) 185 Cal.App.2d 85, 96-97 [ 8 Cal.Rptr. 56]; Schultz v. Schultz (1945) 70 Cal.App.2d 293, 297 [ 161 P.2d 36].) (5) Notwithstanding the mandatory language of section 581a the trial court is vested with the discretion to apply exceptions comparable to the discretion with which it is vested in applying the exceptions to section 583 (dismissal for failure to prosecute within two, three or five years).
(2) The language of the statute has been held to be mandatory and jurisdictional. ( Gonsalves v. Bank of America, 16 Cal.2d 169 [ 105 P.2d 118]; Semole v. Sancoucie, 28 Cal.App.3d 714 [ 104 Cal.Rptr. 897]; Bernstein v. Superior Court, 2 Cal.App.3d 700 [ 82 Cal.Rptr. 775]; Dresser v. Superior Court, 231 Cal.App.2d 68 [ 41 Cal.Rptr. 473].) "The statute is `jurisdictional' in the sense that the court has no power to excuse the delay, nor can it refuse to act merely because the party fails to make a motion for dismissal.
(3) The burden of establishing the existence of the facts suspending the effect of the provisions of section 581a rests upon the plaintiff. ( Bernstein v. Superior Court, 2 Cal.App.3d 700, 702 [ 82 Cal.Rptr. 775]; see also Bonelli v. Chandler, 165 Cal.App.2d 267, 273 [ 331 P.2d 705], dealing with section 583) (1b) The proper method of determining when the three years have elapsed prescribed for return of the summons by section 581a as it was before the amendment is to add to the three years the period or periods of the proven absence of defendant from the state.
(7) It is equally well settled that where summons has not been served and returned and where the defendant has made no general appearance within the three-year period, the dismissal provisions of Code of Civil Procedure section 581a are mandatory and jurisdictional. As stated in Bernstein v. Superior Court, 2 Cal.App.3d 700, 702-703 [ 82 Cal.Rptr. 775]: "In a case coming within its terms, as the instant case clearly does, the dismissal provisions of section 581a are mandatory and jurisdictional ( Gonsalves v. Bank of America, 16 Cal.2d 169, 172 [ 105 P.2d 118]; Black Bros. Co. v. Superior Court, 265 Cal.App.2d 501, 505 [ 71 Cal.Rptr. 344], hear. den.; Dresser v. Superior Court, 231 Cal.App.2d 68, 73 [ 41 Cal.Rptr. 473]; 2 Witkin, Cal. Procedure (1954) p. 1667); the court had no discretion, it may only dismiss ( Dresser v. Superior Court, supra, p. 73; Palmer v. Superior Court, 192 Cal.App.2d 302, 303-304 [ 13 Cal.Rptr. 301])."