Tires Unlimited v. Superior Court

Tires Unlimited, a partnership, and Tires Unlimited, a partnership doing business as Tires Unlimited, defendants in the underlying civil action (named as two separate entities), seek a writ of mandate to compel the Santa Clara County Superior Court to vacate its order denying their motion to dismiss for untimely return of summons and to enter a new order granting the motion. Elena Galvez and Derek Quiroz, the real parties in interest and the plaintiffs in the suit, failed to return the summons within three years after filing their lawsuit, but did return it within 60 days following expiration of that three-year period.

The pivotal issue is whether former Code of Civil Procedure section 581a (repealed by Stats. 1984, ch. 1705, § 3) or Code of Civil Procedure section 583.210 et seq., effective January 1, 1985 (enacted by Stats. 1984, ch. 1705, § 5), governed petitioners’ motion to dismiss. We find that former section 581a controlled and the return was untimely and, therefore, direct issuance of the writ.

Procedural History

On October 20, 1982, real parties filed a complaint to recover damages for personal injuries and wrongful death resulting from an automobile accident.…