Ostrus

Plaintiff Roger Ostrus and Peggy Ostrus (a minor, by her guardian ad litem) filed a complaint on March 27, 1973, against defendant Helen Jean Price, alleging damages for personal injuries resulting from an automobile accident that occurred in Glendora, California. Defendant was served with summons on July 3, 1976, and the return of service was filed by plaintiffs almost two weeks later, on July 23. On the motion of defendant, the trial court dismissed the action pursuant to Code of Civil Procedure section 581a, based upon the failure of plaintiffs to serve and return summons on the complaint within three years from the commencement of the action. Plaintiffs appeal from the order of dismissal. Concluding that defendant’s absence from the State of California alone did not toll the running of the limitation period contained in section 581a and that plaintiffs did not establish an exception to the operation of the section, we affirm.

Section 581a requires summons on the complaint be served and return made within three years after the commencement of an action. As used in the section, an action is deemed commenced upon the initial filing of a complaint (Perati v. Atkinson…