Laws, Regulations & Annotations

Property Taxes Law Guide – Revision 2014
 

Revenue and Taxation Code

Property Taxation

Part 9. Corrections, Cancellations, and Refunds

Chapter 5. Refunds

Article 2. Refund Actions by Taxpayers*

Section 5147

5147. Failure to return summons; dismissal. (a) No refund action hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and any refund action hereafter commenced shall be dismissed by the court in which the action was commenced, on the court's own motion or on the motion of any defendant therein, unless the summons was issued and served and the return thereon was made within one year after the commencement of the action, except where the parties have filed a stipulation in writing that the time may be extended or the party against whom the action is prosecuted has made a general appearance in the action.

(b) For purposes of this section, none of the following constitutes a general appearance in the action:

(1) A stipulation pursuant to Section 583.230 of the Code of Civil Procedure extending the time within which service must be made.

(2) A motion to dismiss made pursuant to this chapter, whether joined with a motion to quash service or a motion to set aside a default judgment, or otherwise.

(3) An extension of time to plead after a motion to dismiss made pursuant to this chapter.

History.—Stats. 1990, Ch. 126, in effect June 11, 1990, added "(a)", substituted "refund" for "such" after "No", substituted "any refund action" for "all such actions" after "therein, and", substituted "shall" for "must" after "commenced", substituted "action was" for "same shall have been" after "which the", substituted "the court's" for "its" after "on", deleted comma after "own motion", added comma after "thereon", substituted "the" for "said" after "commencement of", and added "or the party . . . the action" after "extended" in subdivision (a), and added subdivision (b).

Construction.—The right to seek dismissal of action on the basis of an untimely return of summons is waived where the filing of answers and the participating in discovery indicate an intent to submit the issues in the action to a trial on the merits. Synanon Foundation, Inc. v. Marin County, 133 Cal.App.3d 607. Dismissal of action is proper where summons was not returned timely, even though County made a general appearance by filing an answer one month after complaint was filed. There is no "general appearance" exception to the one-year service and return requirement. Ford Motor Co. v. Tulare County, 145 Cal.App.3d 688. Dismissal of action is proper where summons was not returned timely, even though county filed a motion to transfer the action to superior court two months after the filing of the complaint and waited two months following the one-year period before filing its motion for dismissal. Emberton v. San Diego County, 186 Cal.App.3d 268. The "general appearance" exception to the one-year service and return requirement applies to motions to dismiss under this section, even though the section does not contain an express provision for such an exception. Southern Pacific Transportation Co. v. State Board of Equalization, 175 Cal.App.3d 438.

* Article 2 was added by Stats. 1976, Ch. 499, p. 1240, in effect January 1, 1977.