Cadavid v. Kennedy CA2/3

Filed 3/7/13 Cadavid v. Kennedy CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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