Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kings County, No. 09C0036, Steven D. Barnes, Judge.
Kenneth C. Davis, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
OPINION
Before Hill, P.J., Wiseman, J. and Detjen, J.
This is an appeal from an order denying appellant’s application for issuance of an order to show cause in a proceeding for writ of mandate. We vacate the order of the trial court.
FACTS AND PROCEDURAL HISTORY
On June 9, 2009, appellant Kenneth C. Davis, a prisoner at California State Prison, Corcoran, filed a petition for writ of mandate in Kings County Superior Court. Appellant alleged the prison received a package addressed to appellant containing food, toiletries, and other permissible personal property. However, appellant alleged, he was only permitted to receive such a package once each calendar quarter and the prison authorities determined that he was not eligible to receive a package when this one arrived. Accordingly, the authorities notified appellant that the package was being held for disposition. Appellant did not have sufficient funds in his prisoner account to pay for postage to return the package so, according to appellant, the package was either discarded or appropriated by a prison employee. Appellant asserted the package could have been returned to the sender without further postage simply by marking the package “refused” or “return to sender” before placing it in the mail for return delivery. Appellant alleged he exhausted all available administrative remedies. Appellant requested the trial court order the warden to give him the package or the monetary value of its contents.
Appellant personally delivered the petition for writ of mandate to Derral G. Adams, the warden who preceded respondent Raul Lopez. After the trial court notified appellant that personal service by one who is a party to an action is ineffective (see Sullivan v. Sullivan (1967) 256 Cal.App.2d 301, 304-305), appellant caused a copy of the petition to be mailed to Adams by another prisoner, who was not a party to the action. Appellant subsequently sent a copy of the petition to the Kings County Sheriff “to be served upon” respondent. Thereafter, appellant alleged, he moved for an order for service by posting and that motion was denied.
When none of the foregoing efforts resulted in proper service of process, appellant filed an application for order to show cause on July 30, 2009. That application was denied by order filed August 10, 2009, on the basis that appellant had not served the petition for writ of mandate upon respondent.
Appellant filed a notice of appeal on January 26, 2010. Respondent has not appeared in the appeal.
DISCUSSION
It is apparent from the record that appellant attempted various methods of service of the petition upon respondent’s predecessor, the then-current warden, and that the trial court declined to issue an order to show cause or otherwise proceed in this matter based upon the failure of appellant to accomplish service as required by statute. We deem the order of August 10, 2009, to be the functional equivalent of an order quashing service of a summons. Such an order is made appealable by Code of Civil Procedure section 904.1, subdivision (a)(3). Because there is no indication in our record the clerk of the superior court served upon appellant a notice of entry of judgment, and because there is no indication of the date upon which the clerk served a file-stamped copy of the order upon appellant, we will assume the appeal is timely under the provisions of California Rules of Court, rule 8.104(a)(3) (notice to be filed within 180 days after entry of judgment in some circumstances).
A petition for writ of mandate must be served in the same manner as the summons in a civil action. (See Code Civ. Proc., § 1107; see also id., §§ 413.10-417.40.) Personal delivery of the petition to Adams by appellant himself was ineffective. (See id., § 414.10 [“A summons may be served by any person who is at least 18 years of age and not a party to the action”].) Thus, appellant’s initial attempt to serve Adams did not accomplish service of the action.
Appellant next had a non-party mail the petition for writ to respondent. The record does not disclose an acknowledgment of receipt of service establishing service pursuant to Code of Civil Procedure section 415.30. Appellant has not demonstrated that respondent could not be personally served “with reasonable diligence, ” permitting the trial court to order service by publication. (See id., § 415.50, subd. (a).) Appellant has not demonstrated that the trial court has obtained jurisdiction over respondent in this action so it was proper for the trial court to decline to issue an immediate order to show cause or to set a hearing on appellant’s petition for writ of mandate.
Nevertheless, the record shows that appellant took all steps necessary to enlist the sheriff’s office to serve the action upon Adams. Appellant sought to file this writ petition in the trial court in forma pauperis. Although there is no signed order waiving payment of fees in our record on appeal, the petition was, in fact, filed. Accordingly, we infer waiver of fees in the trial court was ordered. (Appellant also obtained a fee waiver for this appeal). Once a fee waiver is granted by the trial court, a party is entitled to the services of the sheriff without payment of fees. (Gov. Code, § 26720.5.) Appellant submitted to the court instructions, apparently on the correct form employed by the sheriff’s office, for service of process upon Adams in his capacity as warden of the prison. It does not appear from the record that these instructions, together with a copy of the filed petition for writ of mandate, were transmitted by the court to the sheriff for service upon respondent. Further, it appears that in entering the August 10, 2009, order denying appellant’s application for order to show cause on the petition, the court overlooked the fact that the sheriff had not been provided with instructions for service of process without payment of fees. Accordingly, we conclude the order must be vacated and the cause must be remanded to the trial court for an order directing the sheriff to attempt service of process upon respondent, and for such further orders concerning service by publication as may be appropriate based upon the sheriff’s success in obtaining personal service.
DISPOSITION
The order of August 10, 2009, is vacated. This matter is remanded to the superior court with directions to transmit within 30 days a copy of the petition for writ of mandate, together with instructions for service upon respondent previously provided by appellant/petitioner, to the Sheriff of Kings County, for service of the petition on the current warden of California State Prison, Corcoran.