Cadavid v. Kennedy
Filed 3/7/13 Cadavid v. Kennedy CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
SERGIO A. CADAVID,
Plaintiff
and Appellant,
v.
SEAN K. KENNEDY et al.,
Defendants
and Respondents.
B238982
(Los
Angeles County
Super. Ct.
No. BC466330)
APPEAL
from an order of the Superior Court
of
County, William F. Fahey, Judge. Affirmed.
Sergio
A. Cadavid, in pro. per., for Plaintiff and Appellant.
No
appearance by Defendants and Respondents.
_________________________
INTRODUCTION
Plaintiff
in propria persona appeals from the
order dismissing his action for failure to serve his legal malpractice
complaint on his defendants. Plaintiff
contends the trial court should not have dismissed the case because he had
served defendants by mail 21 days earlier.
However, plaintiff has failed to demonstrate
contains no return of acknowledgement of service and so plaintiff has not shown
service was perfected. (Code Civ. Proc.,
§ 415.30, subd. (b).) Accordingly, we
affirm the order.
FACTUAL
AND PROCEDURAL BACKGROUND
Plaintiff,
an inmate at Corcoran State Prison, attempted to sue five attorneys at the
federal defenders office seeking redress for their representation of plaintiff
in his habeas corpus proceeding. The
trial court notified plaintiff on August
26, 2011 that the summons he submitted to the court was obsolete
and that he was required to use the then-current 2009 summons form. On September
1, 2011, plaintiff wrote to the trial court requesting a copy of
the appropriate summons because he did not have access to one.
The
trial court issued an order to show cause concerning plaintiff’s failure to
serve summons and set a hearing for September
19, 2011. Plaintiff filed a
response explaining that although he had asked the court for a copy of the
latest version of the summons form, he had not received it by the time he filed
his response. Plaintiff declared neither
the prison library nor the Kings County Superior Court would provide him with
the proper summons form.
The
matter was called for hearing on September
19, 2011. The trial court
had plaintiff’s response to the order to show cause, but as no appearances were
made, the trial court continued the order to show cause to October 19, 2011. Notified of the continuance, plaintiff filed
a declaration stating he was still unsuccessful in his attempts to obtain the
correct summons form.
It appears that
the hearing was continued a second time because on November 28, 2011, the trial court called the
matter. The minute order from that date
indicates, despite having been given three opportunities, that plaintiff had
not “effect[ed] service.†No appearance
or proof of service having been filed, the court dismissed the case without
prejudice.
Two days later,
plaintiff filed his response to the order to show cause in which he explained
that three weeks before the dismissal, on November 7, 2011, he had arranged for service by mail on
each of the five defendants. Appended to
the memorandum were the proofs of service of summons signed by another inmate
at Corcoran State Prison indicating that, among the documents served on defendants,
were blank copies of the acknowledgement of receipt of summons. (Code Civ. Proc., § 415.30.) The record does not contain any signed
acknowledgments of receipt of the summons.
CONTENTION
Plaintiff
contends the trial court abused its discretion because it believed plaintiff
had not provided evidence he had served defendants.
DISCUSSION
Preliminarily,
we address the threshold question of appealability. Plaintiff has appealed from a minute order
purporting to dismiss his action.
However, the minute order is not signed by the judge as is required by
Code of Civil Procedure section 581d.
appealable. (See Rios v. Torvald Klaveness (1969) 2 Cal.App.3d 1077,
1079.) However, this defect is not
“fatal.†“An unsigned minute order can
form the basis of an appeal, unless it specifically recites that a formal order
is to be prepared; this one does not.
[Citations.]†(
65 Cal.App.4th 1406, 1410.)
Therefore, although the trial court did not sign the minute order dismissing
this case, we conclude the minute order is appealable.
Even
if the minute order is appealable, however, we are next confronted with the
problem that the trial court dismissed plaintiff’s action without prejudice. “A
dismissal ‘without prejudice’ necessarily means without prejudice to the filing
of a new action on the same allegations, so long as it is done within the
period of the appropriate statute of limitations.†(Eaton
Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966, 974,
fn. 6.) Yet, a dismissal without
prejudice has the “effect of a final judgment in favor of the defendant, for it
terminates the action and concludes the rights of the parties in that
particular action.†(
158 Cal.App.2d 150, 153.) Thus, an
involuntary dismissal without prejudice is appealable if it disposes of all
issues in the action. (
Cal.App.3d 580, 583-584.) The dismissal
terminated the entire action. Therefore,
the dismissal is appealable as a final dismissal. (Ibid.)
Even
if this order of dismissal is final and appealable, we nonetheless conclude,
plaintiff has not shown reversible error.
The method for effecting service by mail is set forth in Code of Civil
Procedure section 415.30. It provides
that a summons may be served by mail by depositing it in first class mail,
among other things, two copies of the notice and acknowledgment in the form
described in subdivision (b) of that section.
(Code Civ. Proc., § 415.30, subd. (a).)
Service of summons is only
complete when written acknowledgment of receipt of summons is signed and
returned to the sender. (
expressly based on the execution and return of an acknowledgment of
service. (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 199;
Code Civ. Proc., § 415.30, subds. (c) & (e).) “If the
party addressed fails to do so, there is no effective service.†(Thierfeldt
v. Marin Hosp. Dist., at p. 199, italics added.) If acknowledgment of
service is not returned within 20 days, the Code of Civil Procedure
provides plaintiffs with recourse. (See,
e.g., Code Civ. Proc., § 415.30, subd. (d).)
As
appellant, it is plaintiff’s obligation to demonstrate how the trial court
erred and to provide a record from which the claimed error may be shown. (Maria
P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 978.) Plaintiff has not done so.
The
trial court had plaintiff’s responses both
times it continued the hearing on its order to show cause. Thus, the court gave plaintiff ample time to
obtain the correct version of the summons form.
Plaintiff’s third response indicating he mailed summonses to defendants
21 days earlier, was not filed with the trial court until two days after that
court had dismissed this action for failure to effectuate service. Even if the dismissal were erroneous, any
error was harmless (Cal. Const., art. VI, § 13). The reason is that plaintiff has never
demonstrated that he received signed acknowledgments of receipt, which
acknowledgments were due three days before plaintiff filed his response in the
trial court. (Code Civ. Proc., § 415.30,
subds. (c) & (d).) Thus, there is no
evidence defendants were actually served and that service was ever
effective. Nor did plaintiff demonstrate
he attempted to serve defendants by an alternative method, such as by
publication, or to move the trial court for relief from the dismissal. In fact, nearly three months after plaintiff
claims he served defendants, plaintiff attached his summonses to his notice of
appeal but included no signed
acknowledgments of receipt.
Therefore, plaintiff has not demonstrated reversible error, irrespective
of the correct summons form, because service was never effectuated.
DISPOSITION
The
order is affirmed. No costs on appeal.
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
reads, “A written dismissal of an action shall be entered in the clerk’s
register and is effective for all purposes when so entered. [¶]
All dismissals ordered by the court shall be in the form of a written
order signed by the court and filed
in the action and those orders when so filed shall constitute judgments and be
effective for all purposes, and the clerk shall note those judgments in the
register of actions in the case.â€
(Italics added.)
reads: “Service of a summons pursuant to
this section is deemed complete on the date a written acknowledgment of receipt
of summons is executed, if such acknowledgment thereafter is returned to the
sender.â€
