Filed 3/24/14 Caravayo v. Covert CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MITCHELL ANDREW CARAVAYO,

Plaintiff and Appellant,

v.

JENNIFER COVERT,

Defendant and Respondent.

F066458

(Super. Ct. No. CV-275425)

OPINION

APPEAL from an order of the Superior Court of Kern County. Sidney P. Chapin, 

Judge.

Mitchell Andrew Caravayo, in propria persona, for Plaintiff and Appellant.

No appearance for Respondent.

-ooOooPlaintiff Mitchell A. Caravayo appeals from an order dismissing his case for 

failure to serve the defendant with summons and a copy of the complaint within the time 

required by the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.) and 

California Rules of Court, rule 3.110(b) & (f). After reviewing the record of the 

proceedings, we conclude that it was within the trial court’s discretion to dismiss 
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Caravayo’s action, but it was error to dismiss with prejudice. We vacate the dismissal 

and remand for entry of an order of dismissal without prejudice.

BACKGROUND

On November 17, 2011, Caravayo, a state prison inmate acting as his own 

attorney, filed a complaint for damages. The only defendant named in the caption is 

“Jennifer Covert, RN”; no Doe defendants are named. The first three pages of the 

complaint are typewritten; immediately underneath the caption is the heading “General 

Allegations,” under which are three sections with separate headings.

In the first section, labeled “Introduction,” Caravayo alleges the complaint arises 

from the defendant’s “intentional and general negligent act(s) or omission(s) . . . during 

[plaintiff’s] confinement in the California Department of Corrections and Rehabilitations 

(“CDCR”), at Kern Valley State Prison (“KVSP”), . . . [,]” lists the issues to be decided, 

and recites the duties of registered nurses. In the next section, labeled “Parties,” 

Caravayo alleges that “Defendant Jennifer Covert, Registered Nurse is, and at all relevant 

times herein was employed by the CDCR as a registered nurse at KVSP”; he “is informed 

and believes” that “defendant J. Covert is a properly trained and licensed registered 

nurse” responsible for the medical care of all prisoners at KVSP; and at all times, Covert 

“acted under color of State law, in the course and scope of her employment, and is being 

sued in her individual and official capacity(s).” In the last section, labeled “Exhaustion 

of Administrative Remedies,” Caravayo alleges he exhausted his administrative remedies 

as required by statute. Caravayo’s signature appears at the end of the third page. 

Attached to the three-page typewritten complaint is an eight-page Judicial Council 

form complaint, PLD-PI. The form complaint names “Jennifer Covert, RN” as the only 

defendant, with no Doe defendants named. In paragraph 5, which states that “[e]ach 

defendant named above is a natural person[,]” the box under a.(4) is checked, which 

states that “J. Covert, RN” is “a public entity (describe) Registered Nurse @ KVSP 

employed by CDCR.” The form complaint alleges two causes of action – general 
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negligence (medical malpractice) and intentional tort (civil battery) – arising from 

Covert’s act of giving him a hepatitis-C injection, which he asserts caused him nerve 

damage and pain. A number of exhibits pertaining to his administrative appeal follow the 

form complaint.

On December 15, 2011, the trial court issued a notice of order to show cause, 

which ordered Caravayo to appear on March 1, 2012, “to give any legal reason why 

sanctions shall not be imposed for failure to serve the complaint on all named defendants 

and file proof(s) of service with the court within sixty (60) days after the filing of the 

complaint pursuant to California Rules of Court, rule 3.110.” Caravayo was also notified 

that a case management conference was set for May 15, 2012. 

In a letter to the court clerk filed on January 13, 2012,1 Caravayo stated he had not 

received the file stamped copy of his complaint and therefore could not serve the 

“defendants.” On February 6 the trial court directed the clerk to make a copy of the 

entire case file for Caravayo. The court also ordered Caravayo to prepare and submit a 

proposed summons for issuance by the clerk’s office and, once the summons issued, to 

contact the sheriff’s civil office for assistance with completing service of the summons 

and complaint. 

The court received an original and one copy of Caravayo’s proposed summons on 

February 16. Caravayo asked the clerk to process the summons and return it to him. On 

February 17, he filed an application for an order extending time to effect personal service 

on “defendant Jennifer Covert, RN[,]” as well as a “return to show cause order.” In a 

declaration, Caravayo said he needed an additional 60 days to serve the complaint and 

file a proof of service since he did not receive the file stamped copy of the complaint 

until February 9 and he had to work with the Kern County Sheriff to effect personal 

 

1 Unless otherwise stated, all references to dates are to the year 2012.
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service. Caravayo appeared telephonically at the March 1 hearing on the order to show 

cause, which the trial court continued to April 30. 

On March 5, the court issued and filed the summons, which listed “Jennifer 

Covert, RN” as the defendant. In the boxes at the bottom of the summons which state in 

what capacity the person is being served, two boxes were checked, box one, that Covert 

was being served as an individual defendant, and box 3, that she was being served on 

behalf of “[t]he CDCR, CCP, § 416.50 (Public Entity).” 

On March 26, the court clerk received a letter from Caravayo, in which he 

explained he was returning the summons because it was not issued under the seal of the 

court, as the clerk failed to affix the court’s seal as required by Code of Civil Procedure 

sections 153, subdivision (b) and 412.20, subdivision (a). Caravayo asked the clerk to 

affix the seal and return the summons to him. Caravayo also filed an ex parte motion to 

correct the defective summons. 

On April 27, Caravayo filed a return to the show cause order, in which he argued 

the imposition of sanctions for failing to personally serve the defendant was unjust 

because he had not yet received the valid summons. Caravayo asked the court to order 

the clerk to reissue a valid summons and extend the time to effect personal service on 

“defendant Jennifer Covert, RN.” Caravayo appeared telephonically at the April 30 

hearing. The court continued both the hearing on the order to show cause, and the case 

management conference set for May 15, to June 29. 

On June 7, the court filed a letter from Caravayo in which he stated his address 

had changed because the CDCR had reassigned him from Ironwood State Prison to 

KVSP. On June 14, Caravayo filed a case management statement in which he stated the 

defendant had not been served because the clerk issued a “facially defective summons 

where the seal of the court was not affixed” on March 5, and a valid summons had not 

been issued. On June 29, Caravayo filed a return to the show cause order, in which he 

argued sanctions should not be imposed because he did not receive the corrected 
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summons until June 8, when CDCR staff, who had opened the mail containing the 

summons by mistake, delivered it to him. 

Caravayo appeared at the June 29 hearing on the order to show cause by 

telephone. Caravayo confirmed that he received a copy of the summons bearing the 

court’s seal. The trial court continued the order to show cause hearing to August 28 and 

the case management conference to September 27. The court authorized telephone 

appearances for Caravayo at both hearings, and ordered the civil fast track clerk to notify 

court call regarding this authorization. The clerk did so and notified the KVSP litigation 

coordinator about the order to appear. 

On August 8, Caravayo filed objections that he said “arise from a change in 

circumstances” related to his case management statement filed on June 14 and heard on 

June 29. Caravayo complained about the failure of prison officials to deliver the 

summons to him for 74 days, and stated he did not mail his summons and complaint to 

the Kern County Sheriff between June 8 and June 29 because he was afraid prison 

officials would open his mail and arbitrarily obstruct or destroy it. Caravayo asked the 

court to read his objections into the record and rule on them as soon as possible. 

Caravayo’s return to the show cause order was filed on August 17, in which he 

argued that sanctions should not be imposed because he had asked the Kern County 

Sheriff to serve the complaint, but they refused. Caravayo declared that on July 11, he 

submitted his summons and complaint to the Kern County Sheriff to effect personal 

service on defendant Jennifer Covert, RN; on July 23, the sheriff returned the summons 

and complaint to him, asserting technical irregularities; on August 1, he resubmitted the 

summons and complaint to the sheriff stating that any technical irregularity was not the 

sheriff’s concern, and absolved the sheriff from liability in the execution of process or 

return; and as of August 11, the sheriff had not returned either the summons and 

complaint, or the proof of service. 
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Caravayo attached the document he received from the sheriff’s office. The 

“Notice of Action Taken” states that they were unable to process his request because: 

(1) only one of the three boxes at the bottom of the summons should be marked; (2) he 

needed to submit a copy of the documents for the sheriff’s file; (3) he must “[r]etain one 

of the complaints. If the PLD form is submitted it will need to be filed with the court 

first”; and (4) “[t]he instructions need to state the name of all the documents to be served 

and the last date for service.” 

At the August 28 hearing on the order to show cause, at which Caravayo appeared 

telephonically, the trial court denied his proposed order on the objections and continued 

the hearing to September 27, to be held concurrently with the case management 

conference. The court authorized a telephonic appearance for Caravayo on that date. 

The court instructed Caravayo to submit the documents returned from the sheriff’s office, 

including the letter of instruction regarding the inability to serve the summons and 

complaint, to the court for its review. 

Caravayo did so on September 10. Caravayo informed the court that the sheriff 

refused to serve the complaint unless there was a file stamp affixed to the face of the 

“optional” judicial council form complaint, even though his papers had been filed with 

the court. Included in the submitted documents was a July 12 letter from Caravayo to the 

Kern County Sheriff, in which Caravayo stated he had enclosed copies of his “PIC, 

summons & copy of the fee waiver, and other associated documents”; asked the sheriff to 

serve Jennifer Covert, RN at her last known place of business at KVSP; and stated it was 

personal service, only Covert was to be served, and substitute service was not authorized. 

Caravayo also included his August 1 letter to the sheriff, in which he asserted the 

reasons given for refusing to serve the documents were “meritless” as the Lassen County 

Sheriff had served an identical summons without any difficulties. Caravayo explained 

the defendant was being sued in both her individual and official capacities, therefore she 

was being served on behalf of a public entity, and service of process was dual. Caravayo 
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also explained that the judicial council form complaint was part of the entire complaint, 

which the court accepted for filing. Caravayo asserted that any technical irregularities 

was for the court, not the sheriff’s office, to decide. Caravayo questioned why the 

sheriff’s office needed a copy of the summons and complaint, as he was not litigating 

against them, and asserted the additional documents were ancillary to the complaint and 

“of no concern to the Sheriff.” Caravayo excused the sheriff from liability in the service 

of the court’s process and stated he would subpoena the sheriff if they continued to assert 

“nonexistent technical irregularities of no concern to the Sheriff.” Caravayo asked the 

sheriff to execute personal service of the summons and complaint on the defendant as 

soon as possible. 

On August 22, the sheriff’s office returned the documents to Caravayo, stating 

they were unable to process the request. The “Notice of Action Taken” explained that 

while they could accept the “notice to person served” on the summons as marked and did 

not need a “file copy due to you stated you do not want the documents subserved[,]” 

(1) pursuant to Code of Civil Procedure section 411.10, they needed “only one complaint 

and it must be filed with the court,” (2) pursuant to Code of Civil Procedure section 262 

and “proof of service Judicial form your instructions must state the name of the 

documents to be served,” and (3) they would not have a “time limit for service for a 

Summons unless you specify a last date for service.” 

On September 20, Caravayo filed a case management statement in which he stated 

that he had not served the defendant because the sheriff first returned the papers 

“asserting nonexistent technical irregularities”; he had resubmitted the summons and 

complaint “refuting the technical irregularities asserted” as they do not affect the 

substantive rights of the parties or the sheriff; and the sheriff returned the summons and 

complaint a second time conceding the summons was issued by valid authority but his 

“optional use” of the judicial council form needed to be filed even though the complaint 

had been filed since November 17, 2011. Caravayo claimed the sheriff did not have 
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standing to assert technical irregularities that do not affect the substantial rights of the 

parties or the sheriff, and the sheriff could only refuse to serve the documents if the court 

clearly did not have jurisdiction. 

 Caravayo did not appear at the September 27 hearing on the order to show cause. 

The court took the matter under submission and stated it would review the documents 

regarding service. The case management conference was to be set pending the ruling on 

the order to show cause. On October 18, the court received a “Ltr of Concern” from 

Caravayo, in which he explained he did not appear at the September 27 hearing because 

prison staff at KVSP did not provide him with his Court Call appearance. Caravayo 

asked the court to reschedule the hearing. 

On November 8, the court issued a minute order dismissing the action with 

prejudice. The court explained its ruling as follows: “The plaintiff has created ambiguous 

and confusing forms of pleadings, i.e. attaching together a non form complaint and form 

complaint without separate endorsements. Either complaint only names a single 

defendant, Covert, individually. There is no other defendant, including Doe defendants, 

named as a party for whom Covert would be an authorized agent for service of process. 

The plaintiff insists on arguing with the civil division of the Sheriff’s Office and the court 

clerk concerning the processing of his confusing papers which do not conform to the 

California Rules of Court, nor the pleading or process statutes. It has now been almost 

twelve (12) months since plaintiff filed his action, far exceeding the allowable time for 

service of properly conforming, appropriate papers on the defendant.” The court further 

stated that the case management conference would not be reset. An order dismissing the 

action with prejudice was filed on November 12. 

DISCUSSION

In this appeal, Caravayo challenges the trial court’s dismissal of his case with 

prejudice. The California Supreme Court has instructed that an order dismissing an 

action is presumed correct, and may not be reversed on appeal unless the appellant meets 
9.

his or her burden of showing that the trial court abused its discretion. (Howard v. Thrifty 

Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)2

 The trial court acted within its discretion in imposing a sanction of dismissal. 

Government Code section 68608, subdivision (b)3 permits a trial judge to dismiss an 

action for failure to comply with provisions of the Trial Delay Reduction Act “if it 

appears that less severe sanctions would not be effective after taking into account the 

effect of previous sanctions or previous lack of compliance in the case.” As suggested by 

that language, in deciding whether to impose the sanction of dismissal, “judges are 

required to consider the history of the conduct of the case.” (Tliche v. Van Quathem 

(1998) 66 Cal.App.4th 1054, 1061.) Dismissal of an action is appropriate only if less 

severe sanctions would be ineffective. (Id. at pp. 1061-1062.)

The trial court dismissed Caravayo’s personal injury action because he failed to 

timely serve his complaint in compliance with California Rules of Court, rule 3.110(b),4

which provides that a “complaint must be served on all named defendants and proofs of 

service on those defendants must be filed with the court within 60 days after the filing of 

the complaint.” Since Caravayo is self-represented, it was his responsibility to timely 

serve his complaint in compliance with rule 3.110. Therefore, dismissal of his action for 

noncompliance with that rule is appropriate unless less severe sanctions would have been 

effective.

 

2 There was no respondent’s brief filed in this case. Even in the absence of a 

respondent’s brief, however, an appellant has the burden of showing reversible error. 

(See County of Lake v. Antoni (1993) 18 Cal.App.4th 1102, 1104; Cal. Rules of Court, 

rule 8.220(a)(2).)

3 Subsequent statutory references are to the Government Code unless otherwise 

noted.

4 Subsequent references to rules are to the California Rules of Court.
10.

The record reflects that lesser sanctions would not have been effective in this case. 

Although there were delays in service that were not Caravayo’s fault, such as the court’s 

initial failure to issue a summons with a seal and the prison’s delay in delivering the 

corrected summons to him, once Caravayo received the correct summons, the trial court 

gave him an additional 60 days to serve the defendant. During that time, Caravayo 

submitted the summons and complaint to the sheriff for personal service, but the sheriff 

was unable to attempt service until Caravayo corrected the summons to reflect the 

capacity in which the defendant was being served, to submit a copy of the documents for 

the sheriff’s file, to list the name of all the documents to be served and the deadline for 

completion of service, and to submit only one complaint for filing – either the non-form 

complaint or the judicial council form complaint – and if the judicial council form 

complaint was to be served, to obtain a file stamp thereon.

Instead of attempting to correct the deficiencies pointed out, Caravayo returned the 

documents to the sheriff for service, telling the sheriff to accept the summons for service 

without question, refusing to provide a copy of the complaint or to list the documents to

be served, and explaining that the complaint was comprised of both the non-form 

complaint and the judicial council form complaint, both of which had been filed with the 

court. While the sheriff thereafter was willing to serve the summons as marked and 

agreed it did not need a file copy of the complaint, it still insisted on being given only one 

complaint, a list of the documents to be served, and a time limit for service. Again, 

instead of supplying the information and attempting to correct the complaint, Caravayo 

asserted the sheriff had no standing to raise these “technical irregularities.” 

Based on Caravayo’s refusal to provide the sheriff with the information needed to 

effect service, the court reasonably could have concluded that a sanction less than 

termination of the action would not have been effective in compelling Caravayo to 

comply with the rules for service. Caravayo complains that he did not have notice and an 

opportunity to be heard before his case was dismissed. But the trial court issued an order 
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to show cause why sanctions should not be imposed for Caravayo’s failure to serve the 

defendant in December 2011. The order to show cause hearing was continued four times. 

After each continuance, Caravayo was provided with notice that the next hearing was a 

continuation of the order to show cause, and at each continued hearing, he was provided 

with the opportunity to be heard. The case ultimately was dismissed, not because 

Caravayo failed to appear at the final order to show cause hearing on September 27, but 

because he failed to serve the complaint within 60 days of its filing.

Caravayo asserts he could not furnish an adequate appellate record because he is 

unable to pay the required fees for reporter’s transcripts, claiming a miscarriage of 

justice. An indigent litigant is not entitled to a waiver of reporter’s transcript costs on 

appeal. (City of Rohnert Park v. Superior Court (1983) 146 Cal.App.3d 420, 430-431.) 

Neither this court nor the trial court could grant him a waiver of reporter’s fees. (See 

Rules 3.55, 3.56, 8.26; Judicial Council Forms, form APP-015/FW-015 INFO, 

Information Sheet on Waiver of Appellate Court Fees (Supreme Court, Court of Appeal, 

Appellate Division).) Reimbursement of such fees may only be obtained in accordance 

with Business and Professions Code, section 8030.2 et seq.

We have reviewed Caravayo’s remaining arguments that dismissal is precluded as 

a matter of law, including that the trial court should have liberally construed the 

pleadings, allowed him to amend the complaint, directed the court clerk to correct what 

he describes as a “clerical error,” or should not have accepted the complaint for filing. 

We conclude those arguments are uniformly without merit.

We note that Caravayo may not avoid compliance with the rules of civil procedure 

because he is a self-represented inmate. The California Supreme Court has instructed 

that “mere self-representation is not a ground for exceptionally lenient treatment.” 

(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) “Except when a particular rule 

provides otherwise, the rules of civil procedure must apply equally to parties represented 

by counsel and those who forgo attorney representation.” (Id. at pp. 984-985.)
12.

Nonetheless, we agree with Caravayo that the trial court erred in dismissing the 

lawsuit with prejudice. Although section 68608 permits a trial judge to dismiss an action 

for failure to comply with provisions of the Trial Delay Reduction Act, dismissal with 

prejudice is only to be imposed as a last resort. “‘In the absence of express statutory 

authority, a trial court may, under certain circumstances, invoke its limited, inherent, 

discretionary power to dismiss claims with prejudice.’ [Citation.] However, this inherent 

power to dismiss with prejudice is circumscribed. [Citation.] In order to determine 

whether a plaintiff’s actions warrant a dismissal of a claim with prejudice, a court must 

first ‘discern whether the plaintiff’s pattern of conduct was so “severe [and] deliberate” 

as to constitute extreme circumstances.’ [Citation.] Second, a court must ‘look to see 

whether alternatives less severe than dismissal are available.’ [Citation.] ‘The “‘sound 

exercise of discretion requires the judge to consider and use lesser sanctions’” unless the 

court’s authority cannot possibly be otherwise vindicated.’” (People v. Lockwood (1998) 

66 Cal.App.4th 222, 229-230.) Ordinarily, the sanction of dismissal with prejudice for 

failure to effect service is imposed only after two years have elapsed without service. 

(Code Civ. Proc., § 583.420, subd. (a); see Lyons v. Wickhorst (1986) 42 Cal.3d 911, 

915.)

The trial court’s dismissal of Caravayo’s action with prejudice was the first 

sanction imposed for his failure to effect service of process. There was no reason to 

conclude that the lesser sanction of dismissal without prejudice would have been 

insufficient to accomplish the court’s purpose and “vindicate” “the court’s authority.” 

Accordingly, we conclude it was an abuse of discretion to dismiss Caravayo’s action with 

prejudice and remand for the limited purpose of entry of an order of dismissal without 

prejudice.
13.

DISPOSITION

The trial court’s dismissal order of November 12, 2012 is vacated and the matter 

remanded for entry of an order dismissing Caravayo’s action without prejudice.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Cornell, Acting P.J.

_____________________

Peña, J.