Lesko

This petition challenges a trial court refusal to dismiss an action for failure to serve and return service of summons within three years of filing the action (Code Civ. Proc., § 581a). 1 We issued an alternative writ.

The Facts

The lawsuit underlying this petition is for alleged medical malpractice in the delivery of Jose Lopez on January 14, 1970. Under the provisions of section 340.5, 2 Jose Lopez was entitled to bring suit any *479 time before his eighth birthday. Pursuant to the notice requirements contained in section 364, 3 plaintiff was first required to inform defendant of the legal basis of the claim and the type of loss sustained. This Jose Lopez did by letter addressed to defendant, dated January 13, 1978, the day before his eighth birthday.

The same day, Jose Lopez, by his guardian Fae J. Lopez, filed a complaint for damages for medical malpractice, naming only Doe defendants. Apparently, the naming of only Doe defendants was intended to avoid violation of the 90-day notice requirement (see § 364, subd. (a)). This complaint was never served.

The 90-day notice sent to petitioner was turned over to petitioner’s counsel. By letter of January 27, 1978,…

I respectfully dissent. The central question raised by this petition is what effect, if any, the decision in Hocharian v. Superior Court (1981) 28 Cal.3d 714 [ 170 Cal.Rptr. 790 , 621 P.2d 829 ], has had upon the previously established implied exceptions to Code of Civil Procedure section 581a. Although several Court of Appeal opinions have cited or discussed Hocharian , until now none has attempted to determine its effect upon the pre-Hocharian list of exceptions to section 581a. 1 The majority herein essentially conclude that Hocharian did not add a new “implied exception” to the three previously suggested, i.e., impossibility, impracticability, and futility.

*488 “As we read Hocharian , we believe that it holds simply that the mandatory dismissal of section 581a may not apply, where despite reasonable diligence on the part of plaintiff, service could not be effected upon the defendant within the statutory three-year period.” (Maj. opn., p. 483.) The majority view is that Hocharian wrought only a modification. “Put differently, the ‘implied exceptions’ to section 581a have now been modified so that, for example, it is not necessary to show that service of summons was an…

Richard H. Jordan for Real Parties in Interest.

OPINION

FEINBERG, J.

This petition challenges a trial court refusal to dismiss an action for failure to serve and return service of summons within three years of filing the action (Code Civ. Proc., § 581a). [1] We issued an alternative writ.

The lawsuit underlying this petition is for alleged medical malpractice in the delivery of Jose Lopez on January 14, 1970. Under the provisions of section 340.5, [2] Jose Lopez was entitled to bring suit any time before his eighth birthday. Pursuant to the notice requirements contained in section 364, [3] plaintiff was first required to inform defendant of the legal basis of the claim and the type of loss sustained. This Jose Lopez did by letter addressed to defendant, dated January 13, 1978, the day before his eighth birthday.

The same day, Jose Lopez, by his guardian Fae J. Lopez, filed a complaint for damages for medical malpractice, naming only Doe defendants. Apparently, the naming of only Doe defendants was intended to avoid violation of the 90-day notice requirement (see § 364, subd. (a)). This complaint was never served.

The 90-day notice sent to petitioner was turned over to…