Cadavid v. Kennedy CA2/3 ( 2013 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B238982
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC466330)
v.
SEAN K. KENNEDY et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles 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 reversible error because the
record 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
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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.1
An unsigned minute order is ordinarily not 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.]” (In re Marriage of Lechowick
(1998) 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
1
Code of Civil Procedure section 581d 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.” (Italics added.)
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‘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.” (Aspeitia v. California Trust Co. (1958) 158 Cal.App.2d 150,
153.) Thus, an involuntary dismissal without prejudice is appealable if it disposes of all
issues in the action. (County of Tulare v. Ybarra (1983) 143 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. (Id., at
subd. (c) & (e).)2 Thus, the efficacy of service by mail is 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
2
Code of Civil Procedure section 415.30, subdivision (c) 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.”
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20 days, the Code of Civil Procedure provides plaintiffs with recourse. (See, e.g., Code
Civ. Proc., § 415.30, subd. (d).)3
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.
3
Code of Civil Procedure section 415.30, subdivision (d) reads, “If the person to
whom a copy of the summons and of the complaint are mailed pursuant to this section
fails to complete and return the acknowledgment form set forth in subdivision (b) within
20 days from the date of such mailing, the party to whom the summons was mailed shall
be liable for reasonable expenses thereafter incurred in serving or attempting to serve the
party by another method permitted by this chapter, and, except for good cause shown, the
court in which the action is pending, upon motion, with or without notice, shall award the
party such expenses whether or not he is otherwise entitled to recover his costs in the
action.”
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DISPOSITION
The order is affirmed. No costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
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