Filed 6/18/20 Felix v. Superior Court CA5

(opinion on rehearing)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

SCOTT EMERSON FELIX,

Plaintiff and Appellant,

v.

THE SUPERIOR COURT OF FRESNO COUNTY,

Defendant and Respondent;

THE PEOPLE,

Real Party in Interest and Respondent.

F078523

(Super. Ct. No. 14CECG01263)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Rosemary T. McGuire, Judge.

Scott Emerson Felix, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

-ooOoo-

Plaintiff Scott Emerson Felix appeals from an order dismissing his petition for writ of mandate for failing to effect proper service within the three-year period specified in Code of Civil Procedure section 583.210 and for failing to diligently prosecute the matter. Plaintiff’s appellate brief asserts the record will reflect that he not only served the defendants, but he was denied a proper judicial hearing by the trial court. However, plaintiff has cited, and we have located, no document in the appellate record showing the petition for writ of mandate was properly served on the Attorney General or the Department of State Hospitals.

We therefore affirm the order of dismissal.

BACKGROUND

The narrow issue presented in this appeal is whether plaintiff properly served his petition for writ of mandate. As a result, the details of his incarceration in prison and his transfer to the Coalinga State Hospital as a civil detainee under the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code section 6600 et seq., are not set forth in this opinion. Briefly summarized, plaintiff’s petition asserts he is entitled to an evaluation under the SVPA each year to determine whether he meets the definition of a sexually violent predator. Plaintiff contends he has never received an annual evaluation in accordance with the statute and due process.

On February 24, 2014, plaintiff, representing himself, signed the verification at the end of his petition for writ of mandate. !(CTX Aug 4:5, 10)! On the first page of the petition, plaintiff listed his address as “24511 W. Jayne Ave. / P.O. Box 5003” in Coalinga. !(CTX Aug 4:1-2)! The proof of service by mail attached to the petition gives plaintiff’s address as “24511 W. Jayne Ave., Apt. 5” in Coalinga at the Coalinga State Hospital. !(CTX Aug 11:7-9)! The proof of service states the petition was served by placing it in the outgoing United States Mail receptacle at the Coalinga State Hospital with appropriate postage affixed and addressed to (1) the clerk of the superior court and (2) the office of the district attorney of Fresno County. !(CTX Aug 11)! At oral argument, plaintiff asserted he also internally served an unstamped copy of the petition on the Department of State Hospitals. The appellate record does not contain a proof of service for this delivery.

On February 26, 2014, the Fresno County Superior Court stamped the petition “received”. On April 9, 2014, the petition was filed and assigned case No. 14CECG01263.

A June 10, 2014 minute order stated: “There being no appearances and improper service, this matter comes off calendar. Petitioner may have matter reset when proper personal service is [e]ffected and proper proof is on file.” The clerk’s certificate of mailing states the minute order was mailed that day to plaintiff at “Coalinga State Hospital [¶] PO Box 5003 [¶] Coalinga, CA 93210-5003.” !(CTX Aug 34)! An October 20, 2014, minute order from a hearing on fee waiver stated: “OFF CALENDAR – No appearance.” The clerk’s certificate of mailing indicates the minute order was sent to plaintiff at the same post office box used for the previous minute order. !(CTX Aug 36)!

The register of actions for this case shows no entries for the next four years. !(CTX 41)! On October 23, 2018, the trial court issued a notice of hearing on an order to show cause why the petition should not be dismissed. !(CT 41 [last full entry])! On November 13, 2018, the trial court held a hearing on the order to show cause. Plaintiff attended via CourtCall. No one appeared as a defendant. The minute order stated the hearing was not reported, the matter was argued and submitted, and “[t]he Court orders the case dismissed pursuant to [section] 583.210 and [section] 583.410.” !(CTX Aug 37)!

On November 29, 2018, the trial court filed plaintiff’s notice of appeal. Plaintiff attached a declaration to the notice of appeal stating he sought review of the order on the grounds that (1) he “in good faith has served the Respondents”; (2) he served the court clerk with copies; (3) respondents at Coalinga State Hospital were served; (4) respondents failed to appear at the hearing on the order to show cause; and (5) the trial court failed to hold a hearing on his motions.

In July 2019, plaintiff filed his opening brief. As no defendants had appeared in the trial court proceeding, no respondents’ brief was filed. On April 20, 2020, this court mailed plaintiff an oral argument notice along with a questionnaire asking if he was requesting or waiving oral argument and, if requesting, the amount of time needed to present his argument. !(ACCMS)! The notice stated the questionnaire should be completed and returned within 10 days. By May 13, 2020, the court had not received a completed questionnaire and inferred plaintiff had waived oral argument. As a result, we filed an opinion addressing the question of service of process and concluding the record did not establish proper service had been made. A week later, the court received plaintiff’s completed questionnaire dated April 30, 2020, requesting oral argument. !(ACCMS)! Thus, plaintiff’s completed questionnaire and the copy of the opinion may have crossed in the mail. Considering current conditions and plaintiff’s desire to argue the matter, we deemed the completed questionnaire to be a petition for rehearing, granted the petition, vacated the opinion, and calendared oral argument for June 17, 2020. !(ACCMS 5/21/20 order)!

On June 17, 2020, oral argument was held by videoconference with plaintiff appearing telephonically by CourtCall. After hearing argument and plaintiff’s responses to the court’s questions about service of process, we took the matter under submission.

DISCUSSION

A superior court must have both subject matter jurisdiction and personal jurisdiction—that is, jurisdiction over the individuals and entities named as defendants—before it can enter a valid judgment. (Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 138 (Rockefeller).) In this appeal, the question presented is whether the court obtained jurisdiction over the State of California or the Department of State Hospitals.

Service of process on a party is the mechanism by which a court asserts its jurisdiction over the party. (Id. at p. 139.) “[F]ormal service of process performs two important functions. From the court’s perspective, service of process asserts jurisdiction over the person.” (Ibid.) From a defendant’s perspective, service of process provides notice of the pending action and gives it an opportunity to present a defense. (Ibid.) Accordingly, “compliance with the statutory procedures for service of process is essential to establish personal jurisdiction.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) A judgment entered against a defendant that has not been served in the manner prescribed by statute is void. (Ibid.)

Section 1088.5, which is part of a chapter in the Code of Civil Procedure addressing writs of mandate, states:

“In a trial court, if no alternative writ is sought, proof of service of a copy of the petition need not accompany the application for a writ at the time of filing, but proof of service of a copy of the filed petition must be lodged with the court prior to a hearing or any action by the court.”

The use of the phrase “must be lodged” establishes that submitting a proof of service of the writ petition is mandatory. Requiring proper service of a lawsuit on a defendant—whether a complaint or a writ petition—accomplishes the necessary functions of (1) notifying the defendant of the lawsuit and (2) establishing the court’s authority (jurisdiction) over the defendant. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶¶ 4:1-4:2, p. 4-1.)

Here, plaintiff’s writ petition listed the People of California as the only respondent. If plaintiff was attempting to bring the action against the State of California, service is addressed by Government Code section 955.4, subdivision (a) which states that, subject to certain exceptions, “[s]ervice of summons in all actions on claims against the state shall be made on the Attorney General.” Alternatively, if plaintiff was attempting to bring the writ proceeding against the State Department of State Hospitals, the entity detaining him in custody, section 416.50, subdivision (a) states the summons may be served “on a public entity by delivering a copy of the summons and of the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body.”

Here, the proof of service attached to the writ petition states plaintiff mailed the writ petition to the clerk of court and the county district attorney, both at addresses in Fresno. These persons are not the persons identified by the Code of Civil Procedure as persons upon whom service may be made. During oral argument, plaintiff asserted that service on the county district attorney was the equivalent of service on the Attorney General because of the close connection between the two offices and the fact the county district attorney is subordinate to the Attorney General. We have located no statute or judicial decision adopting this legal theory. (See § 415.20 [substitute service].) As a result, we conclude service on a county district attorney is not the equivalent of service on the Attorney General.

Plaintiff also argued service was made on the Department of State Hospitals because he internally served an unstamped copy of the writ petition on Coalinga State Hospital. Plaintiff was unable to cite to a document in the appellate record showing this type of service had been made. In addition, our review of the 46-page clerk’s transcript and the 78-page augmented clerk’s transcript has located no proof of service showing a summons and the writ petition were served on anyone at Coalinga State Hospital, the head of the governing body of the State Department of State Hospitals, or the Attorney General.

Appellants have the burden of affirmatively establishing the trial court committed prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An aspect of carrying this burden is submitting an appellant’s opening brief with appropriate references to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Although plaintiff’s opening brief contends the trial court erred because the record shows he served respondents, that brief does not identify who the respondents are and does not provide a citation to where in the record the proof of service is located. In the absence of a document showing the service was made in accordance with legal requirements, we must conclude plaintiff has failed to affirmatively demonstrate the trial court committed error when it dismissed his writ petition. Such a petition must be properly served “within three years after the action [wa]s commenced.” (§ 583.210, subd. (a).) When, as occurred in this case, proper service has not been made within the three-year period, dismissal is mandatory under section 583.250.

During oral argument, plaintiff specifically requested this court to address why the trial court took so long to hear this case. The answer is that the trial court took no action on the matter from October 2014 through October 2018 because it was waiting for plaintiff to (1) properly serve his writ petition and (2) file a proof of service demonstrating proper service. From the trial court’s perspective, its June 10, 2014 minute order notified plaintiff of the procedural steps required of him. !(CTX Aug 33-34)! That order stated: “There being no appearance and improper service, this matter comes off calendar. [Plaintiff] may have matter reset when proper personal service is [e]ffected and proper proof is on file.” !(CTX Aug 33)! The trial court inferred plaintiff received the minute order because it was served on him by mail using Coalinga State Hospital’s post office box for patient mail. (See Evid. Code, § 641 [presumption that letter is received in the ordinary course of mail].) !(CTX Aug 34 [Box 5003])!

In Nuño v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 813, this court discussed “the principles governing [a court’s] communication with self-represented litigants” set forth in Gamet v. Blanchard (2001) 91 Cal.App.4th 1276 and considered whether the trial court had complied with those principles. Here, we undertake the same inquiry and consider whether the statement made in the June 10, 2014, minute order complied with those principles. First, that statement does not fail to comply by being “plainly inaccurate.” (Id. at p. 1283.) The minute order did not provide plaintiff with information that was wrong and thereby mislead him as to his next step. Second, trial judges should “make sure any communication from the court is clear and understandable, and does not require translation into normal-speak.” (Id. at p. 1285.) The minute order used the terms “improper service” and “proper personal service.” While “service” has a specific meaning under California law, the appellate record demonstrates plaintiff was familiar with serving and receiving served documents. For example, his petition and subsequent filings included completed proofs of service. Consequently, we conclude the minute order’s statement was sufficiently clear and understandable to identify why the court was taking no action and what plaintiff was required to do next.

In summary, the record establishes plaintiff was notified of the problem with service and, the record does not show proper service of the writ petition was made within the three-year period imposed by section 583.210. Consequently, the trial court was required by statute to dismiss the action. (§ 583.250.)

DISPOSITION

The dismissal order is affirmed. No costs on appeal are awarded because no respondent appeared in the matter.