Semole v. Sansoucie
28 Cal. App. 3d 714, 1972 Cal. App. LEXIS 786, 104 Cal. Rptr. 897 (1972)
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Rule of Law:
An unserved defendant who answers interrogatories solely in their capacity as an agent for a co-defendant corporation that has been properly served does not make a general appearance in their personal capacity. Such a compelled action does not waive the defendant's right to a mandatory dismissal for failure to effect service of summons within the statutory three-year period.
Facts:
- John Semole and Robert J. Sansoucie were co-workers at Pacific Motor Trucking Company.
- On May 9, 1966, Semole was loading trailers onto railroad flatcars as part of his job.
- Sansoucie, operating a tractor-trailer, backed the vehicle into the area where Semole was working.
- The complaint alleged that Sansoucie did so without first inspecting the area or looking where he was backing.
- The tractor-trailer struck and fatally injured John Semole.
Procedural Posture:
- The parents of John Semole (appellants) filed a wrongful death action in the trial court against Pacific Motor Trucking Company (employer) and Robert J. Sansoucie (respondent/co-worker).
- The trial court granted summary judgment for the employer, Pacific Motor Trucking Company, which was dismissed from the case; appellants did not appeal this judgment.
- Appellants did not serve Sansoucie with a summons until four and a half years after filing the complaint.
- Sansoucie moved for dismissal for failure to serve within the mandatory three-year period under Code of Civil Procedure § 581a.
- The trial court denied Sansoucie's motion to dismiss, finding he had made a general appearance by answering interrogatories on behalf of his employer.
- The trial court sustained Sansoucie's demurrer to appellants' original and first amended complaints with leave to amend.
- The trial court then sustained Sansoucie's demurrer to the second amended complaint without leave to amend, on the grounds that it failed to state a cause of action, and dismissed the entire action.
- The Semoles (appellants) appealed the order of dismissal to the California Court of Appeal.
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Issue:
Does an unserved employee-defendant make a general appearance, thereby waiving the right to a mandatory dismissal for failure to serve a summons within three years, by answering interrogatories on behalf of their served corporate employer?
Opinions:
Majority - Herndon, Acting P. J.
No, an unserved employee-defendant does not make a general appearance by answering interrogatories on behalf of their served corporate employer. The provisions for mandatory dismissal under Code of Civil Procedure section 581a are jurisdictional where a defendant has not been served and has not made a general appearance within the three-year statutory period. Here, Sansoucie's answers to interrogatories were not a voluntary act on his own behalf but were compelled by his duty as an agent of his employer, Pacific Motor Trucking Co., which was the party required to answer under section 2030. Unlike in Chitwood v. County of Los Angeles, Sansoucie sought no relief for himself and his actions were not predicated on an assumption of the court's jurisdiction over him personally. Therefore, because he never made a general appearance, the action against him must be dismissed.
Analysis:
This decision clarifies the boundary of what constitutes a 'general appearance' for the purpose of waiving mandatory dismissal rules based on untimely service. It establishes a critical distinction between a party acting voluntarily on its own behalf versus an agent acting under compulsion for a principal. The ruling protects unserved individuals from inadvertently submitting to a court's jurisdiction while fulfilling their legal duties as an employee of a served corporate defendant, thereby narrowing the scope of the general appearance doctrine.
