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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 Los Angeles County, 

William F. Fahey, Judge. Affirmed. 

 Sergio A. Cadavid, in pro. per., for Plaintiff and Appellant. 

 No appearance by Defendants and Respondents. 

_________________________
2 

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 thencurrent 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 
3 

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.) 
4 

‘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.” 
5 

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.” 
6 

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.