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Gonzalez v. Central Union High School District11/25/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Gloria Larios-Rojas Gonzales (Plaintiff and Appellant, Rojas) appeals from an order in favor of the Central Union High School District and its employee, Elizabeth J. Burch (Defendants and Respondents, collectively the District), dismissing her personal injury action for untimely return of summons. (Code Civ. Proc., §§ 583.210, 583.250, requiring return of summons or other proof of service of the complaint within three years and 60 days, or mandatory dismissal). It is undisputed that Rojas did not file her summons or other proof of service of the summons and complaint within the required time period of three years plus 60 days. However, Rojas contends (1) she showed timely service of the complaint itself had been accomplished, and (2) due to the existence of pending settlement negotiations both before and after the complaint was filed, the trial court erred or abused its discretion by failing to recognize or use its discretion to find Rojas had shown sufficient evidence of equitable estoppel, thus preventing the District from asserting the statutory time limitation on such return of summons. (§ 583.140 [nothing in the dismissal or delay in prosecution chapter will affect standard estoppel and waiver principles].)
We hold the trial court did not abuse its discretion by dismissing the action, and affirm the order.
FACTUAL AND PROCEDURAL HISTORY
On April 1, 1998, a school bus driven by the District's employee Burch collided with Rojas's pickup truck, causing her injuries and property damage.
On September 10, 1998, the District's insurance adjuster notified Rojas's attorney that it would be settling her property damage claim for $2,557.76, and requested that she forward her medical records to it "so we may resolve her outstanding bodily injury claim." These documents were provided between January and June 1999, and showed that she was requesting approximately $99,000 in special medical expenses.
No further settlement was reached. On December 31, 1998, Rojas filed her personal injury action against the District and Burch. In a letter of June 7, 1999, the District's insurance adjuster requested further documentation from Rojas's attorney, and noted that a complaint had been filed December 31, 1998. The letter continued, "We would appreciate the opportunity to settle this matter without the need of litigation. Your patience in that regard is appreciated."
As far as the record shows, no further dealings between the parties took place between June 1999 and January 2002, when Rojas's attorney again contacted the District's insurance adjuster requesting settlement. In January 2002, the adjuster referred him to a new office which was handling the claim. In February 2002, the District and Burch brought a motion to dismiss the action for failure to return summons within the three-year and 60-day period allowed by section 583.210. They provided declarations stating that at all relevant times, they had had a person designated for service of process, but that none of those persons had received a summons and complaint from plaintiff, nor had anyone stipulated to extend the time for service of process.
On March 7, 2002, the day before the scheduled hearing date, Plaintiff filed points and authorities arguing that the District had engaged in conduct amounting to waiver or estoppel to seek
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