Opinion
D040083.
11-25-2003
GLORIA LARIOS-ROJAS GONZALEZ, Plaintiff and Appellant, v. CENTRAL UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.
Gloria Larios-Rojas Gonzales (Plaintiff and Appellant, Rojas) appeals from an order in favor of the Central Union High School District and its employee, Elizabeth J. Burch (Defendants and Respondents, collectively the District), dismissing her personal injury action for untimely return of summons. (Code Civ. Proc., §§ 583.210, 583.250, requiring return of summons or other proof of service of the complaint within three years and 60 days, or mandatory dismissal). It is undisputed that Rojas did not file her summons or other proof of service of the summons and complaint within the required time period of three years plus 60 days. However, Rojas contends (1) she showed timely service of the complaint itself had been accomplished, and (2) due to the existence of pending settlement negotiations both before and after the complaint was filed, the trial court erred or abused its discretion by failing to recognize or use its discretion to find Rojas had shown sufficient evidence of equitable estoppel, thus preventing the District from asserting the statutory time limitation on such return of summons. (§ 583.140 [nothing in the dismissal or delay in prosecution chapter will affect standard estoppel and waiver principles].)
All further statutory references are to the Code of Civil Procedure unless noted.
We hold the trial court did not abuse its discretion by dismissing the action, and affirm the order.
FACTUAL AND PROCEDURAL HISTORY
On April 1, 1998, a school bus driven by the Districts employee Burch collided with Rojass pickup truck, causing her injuries and property damage.
On September 10, 1998, the Districts insurance adjuster notified Rojass attorney that it would be settling her property damage claim for $2,557.76, and requested that she forward her medical records to it "so we may resolve her outstanding bodily injury claim." These documents were provided between January and June 1999, and showed that she was requesting approximately $ 99,000 in special medical expenses.
No further settlement was reached. On December 31, 1998, Rojas filed her personal injury action against the District and Burch. In a letter of June 7, 1999, the Districts insurance adjuster requested further documentation from Rojass attorney, and noted that a complaint had been filed December 31, 1998. The letter continued, "We would appreciate the opportunity to settle this matter without the need of litigation. Your patience in that regard is appreciated."
As far as the record shows, no further dealings between the parties took place between June 1999 and January 2002, when Rojass attorney again contacted the Districts insurance adjuster requesting settlement. In January 2002, the adjuster referred him to a new office which was handling the claim. In February 2002, the District and Burch brought a motion to dismiss the action for failure to return summons within the three-year and 60-day period allowed by section 583.210. They provided declarations stating that at all relevant times, they had had a person designated for service of process, but that none of those persons had received a summons and complaint from plaintiff, nor had anyone stipulated to extend the time for service of process.
Specifically, Burchs declaration stated that although she resided and worked in the same locations in Imperial County at all times while this lawsuit was pending, she was never served with or saw any proof of service regarding the complaint on file.
On March 7, 2002, the day before the scheduled hearing date, Plaintiff filed points and authorities arguing that the District had engaged in conduct amounting to waiver or estoppel to seek to enforce the statutory deadline for return of summons. In an abundance of caution, the trial court continued the hearing to allow the matter to be briefed further, specifically, on the case of Lesko v. Superior Court (1982) 127 Cal.App.3d 476 (Lesko), in which a defendants entry into settlement negotiations with a plaintiff was held insufficient to create estoppel to assert the three-year return of summons statute.
On March 12, 2002, Rojas filed her return of summons and proof of service of the complaint, showing service had been made on that date. This was 11 days past the three years plus 60 days provided for in section 583.210. The next day Rojas also submitted further declarations stating that additional facts had come to light. The individual who had served the complaint on the District, Plaintiffs attorneys case analyst Leonard Mendez, filed a declaration stating that at some time in the week after the December 31, 1998 complaint was filed, he had taken a copy of the summons and complaint to the Districts office and had left it with the person in charge. A new proof of service, stating service on a person ostensibly in charge of the Districts office had taken place January 4, 1999, was filed accordingly. Rojas thus argued that the District was estopped from asserting the time limitation of section 583.210, because the actions of the District in participating in settlement discussions had misled Rojas into believing that no compliance with that statute was required in order for the case to go forward.
In ruling on the motion, the trial court first overruled the Districts objection to the newly filed papers, which had gone beyond the scope of the supplemental briefing allowed. The court stated that it was appropriate to consider the new evidence, although it did not change the tentative ruling to dismiss. The court relied on the authority of Lesko, supra, 127 Cal.App.3d 476, and stated it lacked the discretion to decide not to enforce the statutory time limitation, because the mere entering into of settlement negotiations did not constitute conduct that would give rise to an estoppel. The court found there was no affirmative conduct on the part of the District that would have led the Plaintiff reasonably to believe that the case would surely settle, based on the high settlement demand and the lack of any specific dollar figure that was being discussed.
The order dismissing the action was filed April 24, 2002. Rojas timely appealed the order.
DISCUSSION
I
ISSUES PRESENTED AND APPLICABLE STANDARDS
Section 583.210, as amended in 1984, now clearly provides, as explained in Biss v. Bohr (1995) 40 Cal.App.4th 1246, that the two steps of the process, "serving" and "return," are now "recognized as distinct actions, were given different time periods for compliance, and, by virtue of section 583.110, subdivision (f), were identified by a single moniker, service." (Biss, supra, at pp. 1250-1251.)
In the case before us, both of these steps of the process are in some dispute. First, Rojas concedes she did not timely file her return of summons or other proof of service of the complaint within three years and 60 days. However, she contends that through the actions of the Districts insurance claims adjuster, the District has acknowledged that the complaint was actually served within the original three-year period. Based on those facts, she argues that she was misled by the District to believe that compliance with the further requirement of return of summons was unnecessary, in light of the pending settlement negotiations, and the previous settlement of the property damage portion of the claim.
To answer these contentions, we first take note that both the service and the return of summons requirements must be treated as a unit under the statute for our purposes here. (§ 583.110, subd. (f).) The District makes a number of specific arguments concerning the lack of compliance by Rojas with the technical requirements of section 415.10 (specifying on the proof of service the person to be served, the employee Burch), section 416.50 (specifying what individual was served on behalf of the District), and section 415.20 (completing the service on the person in charge of the Districts office by mailing a copy to the District). The record supports these arguments, and there is no reply brief on file or other material to rebut them. However, there is also some basis for us to assume, for the sake of argument, that the District received actual notice of the filing of the action at about the time claimed, based on the Districts referral of the matter to its insurance claims adjuster and the partial settlement reached. We will proceed on this basis, and decline to stop the inquiry at the point of whether service was made.
Rather, we turn to the next step of the statutory requirements, to address the main argument presented, concerning estoppel to assert the statutory time limitation for return of summons. This requires us to assess the trial courts exercise of discretion in finding that the conduct of the District in entertaining settlement discussions did not amount to affirmative misleading of the plaintiff concerning the statutory requirements. (§§ 583.220, 583.140 [the doctrine of equitable estoppel applies in cases involving dismissal for delay in service or returning summons].)
Rojas is not contending that there were any other applicable extensions or tolling periods for completing service, under sections 583.230 or 583.240.
Generally, "the determination of whether a defendants conduct is sufficient to invoke the doctrine of equitable estoppel is a factual question entrusted to the trial courts discretion. [Citations.]" (Brookview Condominium Owners Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 510-512 (Brookview ), citing Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 440 (Tresway).) When reviewing such an exercise of discretion that resulted in the dismissal of an action, "We may not substitute our decision for that of the trial court. The issue is not . . . whether consideration of appellants evidence could reasonably have led the lower court to conclude respondent should [or should not] be estopped from seeking dismissal. Rather, the issue is whether, viewing the evidence and all inferences therefrom in the light most favorable to respondent, there was substantial evidence upon which the court could reasonably have found as it did. [Citations.]" (Brookview, supra, at p. 511.)
The criteria for applying the doctrine of equitable estoppel in the context of motions to dismiss for failure to return summons or make service within three years are spelled out in Tresway, supra, 5 Cal.3d 431, 437-438: " a person may not lull another into a false sense of security by conduct causing the latter to forebear to do something which he otherwise would have done and then take advantage of the inaction caused by his own conduct. [Citations.]" Generally, to establish estoppel, the plaintiff must show all of these factors: ""(1) The party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must [reasonably] rely upon the conduct to his injury . . . ." [Citations.]" (Biss v. Bohr, supra, 40 Cal.App.4th at p. 1252.)
II
APPLICATION OF SECTION 583.210 IN CASE LAW
We next turn to the cases that have applied the rules regarding estoppel in the dismissal context. Due to the nature of the inquiry, they are all quite fact-specific. In Tresway, supra, 5 Cal.3d 431, the Supreme Court concluded that the defendants "maneuver in getting additional time to plead," by requesting an extension, had resulted in that plaintiffs failure to serve summons within the period required by the predecessor statute to section 583.210 (section 581a). This was intentional conduct of the defendant, justifying an estoppel finding, because the plaintiff was led "to believe that further service of process on defendant would be duplicatory and redundant." (Tresway, supra, at p. 441.) "Defendants conduct in the present case lulled plaintiff into such a false sense of security, and probably prevented plaintiff from discovering her error and effecting valid service within the statutory period." (Ibid .) The action was therefore allowed to proceed.
In Lesko, supra, 127 Cal.App.3d 476, the appellate court rejected the plaintiffs argument that because a defendant had entered into lengthy settlement negotiations, that defendants conduct should be construed as causing some kind of reasonable reliance by the plaintiff that led to her decision not to effect service while negotiations were pending. The defendant had never represented that he would settle, only that he was willing to discuss settlement. The appellate court found no duty on his part to notify the plaintiff that he, as the defendant, was not waiving his rights to obtain a three-year dismissal under prior section 581a (now section 583.210). There was no act of the defendant that had the effect of preventing the plaintiff from making timely service and return of summons. (Lesko, supra, at pp. 485-487.)
An estoppel argument was also rejected in Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391 (Sanchez), where the background facts were that defense counsel, at the beginning of depositions, had said nothing in response to the plaintiffs attorneys announcement that he was representing both sets of plaintiffs in two related cases, and eventually, a defense dismissal motion had been brought for failure to make timely return of summons in one case. The court stated the rule that, "Estoppel arises where a party has by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief . . . . (Evid. Code, § 623.) Mere silence will not create an estoppel unless a party was under a duty to speak and circumstances required him to speak." (Sanchez, supra, at p. 1400.) The appellate court set aside the order of the trial court denying the dismissal motion, on the grounds that the trial court erred in deciding that the defense attorneys conduct was enough to estop the defendants from claiming the bar of the three-year statute (by somehow leading plaintiffs to believe that there was an active defense being offered in both of the separate lawsuits, when one of them had not been served and summons returned). (Ibid.)
Again in Biss v. Bohr, supra, 40 Cal.App.4th 1246, the applicable question was stated as whether the defendant who was seeking dismissal had done anything to reasonably cause the plaintiff to believe it was unnecessary to make a return of summons. (Id. at p. 1252.) From these cases, it is evident that any estoppel finding must be based not on the general conduct of settlement negotiations, but upon any actions or conduct of a defendant that reasonably led the plaintiff to believe that further service of process, or by the same token, returning the summons in a timely manner, would be duplicative and redundant. (Tresway, supra, 5 Cal.3d at p. 441.)
III
APPLICATION HERE
To evaluate the trial courts exercise of discretion in dismissing the action, we first acknowledge that the court made every effort to allow Rojass arguments to be heard, by accepting late opposition and late-filed declarations, to ensure that the matter was heard on the merits. This enabled the trial court to lay the groundwork for a full and fair hearing of the case, which thus far appears to be an appropriate exercise of discretion. As we have already stated, we are assuming that some kind of actual service of the complaint was made upon the District, and we will, as did the trial court, reach the merits of the plaintiffs estoppel argument for purposes of applying section 583.210. (§ 583.110, subd. (f).)
In doing so, we seek to determine whether, "viewing the evidence and all inferences therefrom in the light most favorable to respondent, there was substantial evidence upon which the court could reasonably have found as it did. [Citations.]" (Brookview, supra, 218 Cal.App.3d at p. 511.) The trial courts rejection of the estoppel argument means that it found plaintiffs showing was deficient on some of the estoppel elements, such as whether the District intended that its conduct would be acted upon, specifically with respect to returning summons or other proof of service. Similarly, the estoppel argument would require a showing that plaintiff was ignorant of the true state of facts, such as whether this requirement remained in force in her case. Plaintiff would also have to show that she reasonably relied on the Districts conduct, to her injury. (Biss v. Bohr, supra, 40 Cal.App.4th at p. 1252.)
In its ruling, the trial court reviewed the Lesko, supra, 127 Cal.App.3d 476, and Sanchez, supra, 203 Cal.App.3d 1391, authority, and stated that the mere entering into of settlement negotiations did not constitute conduct that would give rise to an estoppel. It also found there was no affirmative conduct on the part of the District that would have led the plaintiff reasonably to believe that the case would most likely settle, without further procedural action, based on the existing high settlement demand and the lack of any specific dollar figure that was being discussed regarding personal injury. The court could have inferred from the amounts and time frames involved (the $2,557.76 property damage settlement in 1999 and the $92,000-plus personal injury settlement demand in effect from 1999 through 2002) that the plaintiff could not have reasonably concluded that settlement of her remaining claims was a sure thing, on the record as it then existed. The letter of June 7, 1999, in which the Districts insurance adjuster requested further documentation from Rojass attorney, and expressed appreciation for the plaintiffs patience in the discussions on settling the matter without litigation, does not demand a contrary conclusion.
Also, once Rojas again contacted the District in January 2002 and received no satisfaction, she was given no indication that the District was waiving its right to seek dismissal if statutory requirements for return of summons were not met. The District was under no duty to inform her of the procedural deficiency. (Lesko, supra, 127 Cal.App.3d at p. 486; Sanchez, supra, 203 Cal.App.3d at p. 1400.) The court had no basis in the record to conclude that the plaintiffs failure to timely return the summons or other proof of service for filing was attributable to any actions of the defendant District, so as to justify an estoppel finding. Rather, there was substantial evidence upon which the trial court could find that the District did not engage in any act which misled Rojas into failing to take the appropriate action in returning the summons or other proof of service prior to the running of the three-year, 60-day date, whether through its expressions of interest in settlement or otherwise. The trial court did not abuse its discretion in finding that the District and its employee were not estopped to seek dismissal and in granting the motion.
DISPOSITION
The order is affirmed.
WE CONCUR: McDONALD, J., IRION, J.