Brookview Condominium Owners' Ass'n v. Heltzer Enterprises-Brookview

Brookview Condominium Owners’ Association (appellant) appeals the dismissal of its complaint against Heltzer Enterprises-Brook-view (respondent or Heltzer Enterprises), for failure to serve the complaint within three years. 1 It is undisputed the complaint was not served within the required three-year time period. However, appellant contends the trial court committed reversible error by failing to find that Heltzer Enterprises made a general appearance, and by refusing to consider evidence of estoppel and waiver.

We hold the trial court did not abuse its discretion by dismissing the action, and affirm.

Procedural History

On October 5, 1981, appellant, numerous condominium owners, filed a complaint to recover damages caused by defects in design or construction of their condominiums. The complaint named numerous entities as defendants, including one known as Heltzer Building Company.

*506 Respondent Heltzer Enterprises was not named in the complaint.

On November 8, 1982, appellant filed a first amended complaint, once again naming Heltzer Building Company and other entities, and omitting respondent.

In its answer to the first amended complaint, Heltzer Building…

I concur in the result only.

Plaintiff Brookview Condominium Owners’ Association did not serve the summons and complaint on defendant and respondent Heltzer EnterprisesBrookview (Enterprises) within three-years after filing suit. In this court Brookview contends Enterprises made a general appearance before its motion to dismiss and therefore cannot assert the bar of the three-year statute. As the lead opinion states, a general appearance after an untimely service does not affect a defendant’s right to dismissal. (Blank v. Kirwan (1985) 39 Cal.3d 311, 333 [ 216 Cal.Rptr. 718 , 703 P.2d 58 ]; Busching v. Superior Court (1974) 12 Cal.3d 44, 52 [ 115 Cal.Rptr. 241 , 524 P.2d 369 ]; Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 499, fn. 4 [ 255 Cal.Rptr. 8 ]; Tires Unlimited v. Superior Court (1986) 180 Cal.App.3d 974, 982 [ 226 Cal.Rptr. 25 ]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 1989) §§ 11:73-11:75, p. 11-27.)

Brookview’s primary contention is that Enterprises’ conduct after its general appearance estopped it from claiming the protection of the statute. The trial court considered, and rejected, this argument and I agree with the lead…