— I dissent. The majority claims that " [o]n January 16, 1986, within the 90 days mandated by RCW 4.16-.170, the plaintiff filed both a summons and complaint." Majority, at 822. This is not true. The record does not support the finding that any summons was filed within 90 days of service of the October 18, 1985, summons.
Because no summons was filed within 90 days of service of the October 18, 1985, summons, the action was not commenced and the statute of limitations was not tolled on October 18, 1985.
Nearing did not validly commence his action until January 16, 1986, when he filed his complaint. The alleged discrimination occurred more than 3 years before the action was commenced on January 16, 1986. Nearing was 10 days to 3 months too late to toll the statute of limitations. The *824majority appears to agree with the trial judge that Nearing knew he was terminated in October 1982. See majority, at 818. However, Nearing stated in his deposition that he did not discover that he had been terminated until a much later date, subsequent to October 1982. While there is some question as to whether Nearing was terminated in October 1982, it is unrefutable that he knew he was terminated by December of 1982. Nearing admitted in his deposition that he applied for and received unemployment benefits in December 1982. This establishes that he knew he was discharged by December 1982. Furthermore, there is evidence in the record that Nearing had discovered his cause of action by January 6, 1983. On that date, Nearing signed a complaint that he filed with the Washington State Human Rights Commission alleging that his position had been turned over to a white male. Nearing's complaint filed on January 16, 1986, was, at a minimum, 10 days too late to toll the statute of limitations.
Even if a "new summons" was filed on January 16, 1986, with the complaint, the statute was not tolled as of October 18, 1985. RCW 4.16.170 with its reference to "the" summons and not "a" summons requires that the summons filed be the same as the summons served.
Supplemental Facts
David Nearing has been living in Stockton, California, since 1984. Before he left Washington, he was employed as a part-time warehouse worker for Golden State Foods for a period of 17 months. Nearing worked on an as-needed basis, with periods of up to 3 weeks between work assignments. His last day of work was the latter part of October 1982.
On October 18, 1985, Nearing's first attorney caused a summons to be served on Golden. No complaint was attached to the summons. Golden entered an appearance but did not demand the filing of the summons and complaint.
*825On January 31, 1986, Nearing's second attorney, Kathryn Ellis, caused a second summons, dated January 30,1986, to be served on Golden. Unlike the first summons, a complaint was served along with the second summons. The complaint accompanying the second summons was dated January 14, 1986, and had been filed on January 16, 1986. The complaint alleged employment discrimination.
Golden answered the complaint on February 20, 1986, raising the statute of limitations as a defense. On June 13, 1986, Golden moved for judgment on the pleadings, contending that the action was time barred. The trial court held that Nearing had missed the 3-year statute of limitations applicable to discrimination actions under RCW 49.60.180 by approximately 3 months:
This action was commenced on January 16, 1986. The complaint alleges discrimination occurring on or before October 23, 1982 in connection with plaintiff's employment by defendant. This action is time barred because it was not commenced within three years of the alleged discriminatory event.
Clerk's Papers, at 97.
Analysis
The majority's contention that a summons was filed within 90 days of service is not supported by the record. While the complaint captioned "Violation of Civil Rights" is stamped with a filing date of 1/16/86 and is signed by the plaintiff's attorney, the summons is not so stamped nor signed.2 Clerk's Papers, at 2. In addition, the summons states "Plaintiff's claim is stated in the Written Complaint for Breach of Contract . . .". (Italics mine.) This further undermines the majority's contention that the "new summons" was filed with the complaint for "Violation of Civil Rights". Further, Golden State, in its "Petition for Review", states the summons served on January 31, 1986, *826was not signed until January 30, 1986. "Petition for Discretionary Review", at 17. This was not contested in Nearing's "Answer to Petition for Discretionary Review".
Obviously, a summons signed on January 30, 1986, could not have been filed within 90 days from the service of the first summons on October 18, 1985. Since no summons was filed within 90 days of service, the statute was not tolled on October 18, 1985. Nearing was too late to toll the statute of limitations when he filed the action on January 16, 1986.
Even if the "new summons" was filed on January 16, 1986, with the complaint, the statute was not tolled as of October 18, 1985. The majority ignores the fact that RCW 4.16.170 with its reference to "the" summons and not "a" summons requires that the summons filed be the same as the summons served. See Dowell Co. v. Gagnon, 36 Wn. App. 775, 776, 677 P.2d 783 (1984) ("'[TJhe complaint' is the one filed in the action . . . not a complaint independently filed.").
The Court of Appeals, in the subject case, erroneously concluded that the summons filed need not be the summons served. It implied Roznik v. Becker, 68 Wash. 63, 122 P. 593 (1912) supported its holding. An examination of this case casts doubt upon the court's use of it as supporting authority. First of all, the case does not concern the language of the statute before us. Secondly, it addressed the issue of whether the service of one summons precluded the issuance of a second summons. The court in Roznik concluded, "there is no reason for holding that the issuance of one [summons] in an action exhausts the power to issue another." Roznik, 68 Wash, at 68. Roznik did not discuss whether the summons served upon a party must be the same one filed with the court. The Court of Appeals then suggests that there is compliance with the statute if the two summonses are substantially identical. Nearing v. Golden State Foods Corp., 52 Wn. App. 748, 752, 764 P.2d 242 (1988), review granted, 112 Wn.2d 1009 (1989).
The two summonses are clearly different in this case. Each summons was signed by a different attorney, and each *827directed that the defense be served on a different attorney. There was not even a substitution of counsel between the two attorneys. The "new summons" referred to "Breach of Contract". It is not clear what the first summons referred to, since the first summons is not in the record. On these facts, it cannot be successfully argued that the two summonses are substantially identical. The statute requires that the summons served must be the same summons filed. Here, it is undisputed that the October 18, 1985, summons was not filed within 90 days of service.
Conclusion
The trial court should be affirmed. Nearing did not toll the statute of limitations for the subject case. He totally failed to file the summons that was served on Golden on October 18, 1985. Further, the record does not support the majority's contention that any summons was filed within 90 days of service as required by RCW 4.16.170. Since no summons was filed within 90 days of service, the statute was not tolled on October 18, 1985. The action was not commenced until January 16,1986, when the complaint was filed. Nearing knew he was discharged by December of 1982, as he drew unemployment benefits during that month. Therefore, he missed the 3-year statute of limitations by at least 10 days or by as much as 3 months if he was terminated in October 1982.
I would dismiss.
Smith, J., concurs with Dore, J.
CR 4(a)(1) requires that "[t]he summons must be signed and dated by the plaintiff or his attorney . . (Italics mine.)