Procedural Posture

Plaintiff insured sought review of an order from the Superior Court of Santa Clara County (California) quashing service and dismissing plaintiff's action against defendant insurer for failure to serve summons and complaint within three years of the commencement of plaintiff's action to recover for flood losses. 

Overview: litigation lawyers Los Angeles

Plaintiff insured brought an action against defendant insurer to recover for flood losses. Before the three-year limitation period for service of summons and complaint was to expire, plaintiff effected service on defendant, but inadvertently delivered the superseded second, rather than the third, amended complaint. After discovering his error, plaintiff served defendant with the third, amended complaint after the three-year period had run. The trial court granted defendant's motion to quash service of the summons and complaint and to dismiss the action, pursuant to Cal. Civ. Proc. Code § 583.210. Plaintiff appealed, assigning as error the order granting defendant's motion to dismiss. The court reversed the judgment of dismissal. The court held that under the facts of the case in which the allegations contained in the second, superseded amended, complaint essentially were similar to the allegations contained in the third, amended complaint, the service made provided defendant with timely notice of the action and of substantially all of plaintiff's factual contentions against it, thus satisfying the purposes of § 583.210.

Outcome

The court reversed the trial court's order dismissing plaintiff insured's action against defendant insurer for flood losses. The court found that where plaintiff inadvertently delivered a superseded second, rather than a third, amended complaint to defendant before the expiration of the three-year period, the service made provided defendant with timely notice of the action and of substantially all of plaintiff's contentions.