Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. FF09457349
Reardon, J.
Appellant Mehdi Abdollahzadeh (Mehdi) appeals from a default judgment of dissolution urging that (1) the trial court erred in entering his default; (2) California does not have subject matter jurisdiction to determine custody under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); (3) the trial court erred in denying his motion to quash; and (4) he was entitled to notice of the hearing to enter default judgment. None of these issues have merit and therefore we affirm the judgment.
I. FACTUAL BACKGROUND
Mehdi and Nahid Abolghasemi (Nahid) were married in Iran in 2003. Mehdi, a United States resident at the time, returned to the United States. Nahid moved here in 2005 and became a legal permanent resident. Their daughter, K.A., was born here in January 2006. At the time of K.A.’s birth, the family resided in Fremont and owned property in California.
Sometime in December 2008, Nahid and her daughter traveled to Iran; Mehdi joined them several weeks later. The parties differ on their reasons for going to Iran. Nahid has insisted the family returned to Iran for what she thought was an extended vacation, but once there she realized Mehdi’s plan was to divorce her for trumped up adultery charges and subject her to the punishment of the Iranian courts. Fearing for her safety, in February 2009, Nahid tried to return to the United States with her daughter, but was not permitted to take her out of Iran because Mehdi had not given Nahid permission to do so.
Mehdi claimed that the parties’ intent was to permanently return to Iran, but after returning there, he learned of another affair his wife was having and questioned her loyalty and intent to remain there. On February 7, 2009, he maintains Nahid kidnapped K.A. and tried to leave Iran with their daughter but left her with a distant friend when she learned she could not bring her without his consent.
Nahid did leave Iran without K.A. and returned to the United States, leaving her daughter in the care of a friend. On May 6, 2009, Mehdi obtained from an Iranian court a “temporary order judgment” giving him custody of K.A.
Upon returning to the United States, Nahid contacted the United States Department of State alleging international child abduction against Mehdi. The State Department advised her to file reports with the Fremont Police Department and the Alameda County District Attorney’s Office which she did, but no charges were filed against him. She also contacted Bay Area Legal Aid and through that organization was referred to attorney Matthew Shafae on a pro bono basis.
On June 12, 2009, Nahid petitioned for dissolution in Alameda County, seeking child custody and other orders. In connection with the dissolution, she requested an order for publication of summons. The moving papers indicated Nahid communicated directly with Mehdi through e-mail, and he confirmed he was in Iran but would not divulge his exact location. Shafae contacted Mehdi’s friend, attorney Peyman Rad, who was handling the parties’ real estate matters and corresponding with the district attorney on Mehdi’s behalf. Shafae attempted to obtain Rad’s cooperation in serving Mehdi with a summons, but Rad claimed not to know Mehdi’s exact whereabouts and was not willing to obtain authorization from him to accept service on his behalf, although he did confirm that Mehdi was in Iran. Finally, Shafae also contacted Mehdi’s last known place of business, to no avail in locating his whereabouts.
The court issued an order for publication of summons and further entered handwritten directions that Nahid mail a copy of the petition for dissolution to Mehdi at his last known address in Iran, and to attorney Rad. She eventually complied with the order.
Mehdi did not respond to the summons and petition and on March 5, 2010, the court entered default against him. Mehdi, through attorney Rad, moved to quash service of summons and to set aside the default. Rad was present at the July 1, 2010 hearing; the court denied the motion to quash and reluctantly granted the motion to set aside under Code of Civil Procedure section 473, subdivision (b) (attorney fault) on the condition that counsel and Mehdi pay penalties, and Mehdi file a responsive pleading “within 30 days of today.” The court registered its concern of the fact that Mehdi “may or may not want to appear in this case.” Additionally, the court directed Shafae to prepare the order. A minute order reflecting the court’s ruling was entered in the minutes on July 2, 2010.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Shafae prepared a proposed order after hearing as directed, and counsel exchanged correspondence about its contents. Rad, in a letter dated July 6, 2010, objected to the proposed order, arguing that the responsive pleadings were to be filed within 30 days from entry of the order, not 30 days from the hearing date. Shafae submitted the order, without change to the court, along with a letter explaining Rad’s objections. The court signed the order on July 14, 2010. However, Shafae did not serve the order on Rad at that time.
Meanwhile, on July 14, 2010, Shafae received a letter from Rad dated July 11, together with checks covering the fees. Responsive pleadings were not filed within the time prescribed by the court and on August 3, 2010 Nahid filed another request for default, which was granted the same day. Also on August 3 the court served on both parties a notice of administrative transfer, along with a copy of the July 2 minute order.
On August 9, 2010, Mehdi, through Rad, moved ex parte to set aside the entry of default. No responsive pleading was included at that time. That same day Shafae submitted opposition and served it on Mehdi; the opposition included a copy of the July 14 order. The court denied the ex parte motion to set aside the entry of default on August 10.
Later that month Mehdi again moved to set aside the default under section 473, subdivision (b), arguing that the court could not take his default because Nahid had not served the July 14, 2010 written order until August 9, 2010. While denying that motion, the court nonetheless set the matter for an order to show cause “why the court must not dismiss this action for lack of jurisdiction under Code of Civil Procedure section 473, subdivision (d), ” in light of the Iranian custody judgment that had recently been made part of the record. (Italics added.)
In its ruling, the court clarified what was really going on: “The crux of the pleading history is that [Mehdi] has failed to respond to [Nahid’s] pleadings, and [she] has obtained multiple defaults. Upon entry of the defaults, [Mehdi] has claimed he is not subject to the court’s jurisdiction. However, the avenues through which [Mehdi] has claimed lack of jurisdiction are procedurally improper.... [¶]... The court does not examine whether [Nahid’s] failure to serve the July 14 order led to [Mehdi’s] excusable neglect in this case however because it is clear to the court that [Mehdi] is not seeking a trial on the Alameda dissolution action but a determination that this court lacks jurisdiction because issues raised in the Alameda action have all been resolved in an Iranian court. [¶]... [¶]... [W]ith [Mehdi] not filing responsive pleadings because he did not wish to generally appear, the most recent motion to set aside was filed under 473 [subdivision] (b), but without the required responsive pleading. This is not the proper authority for raising a jurisdictional challenge, which is under 473 [subdivision] (d) [motion to set aside void judgment] rather than 473 [subdivision] (b).”
After the hearing on the order to show cause, the court concluded that California does have jurisdiction within the meaning of the UCCJEA, declined to dismiss the matter, and thereafter entered a default judgment of dissolution which granted custody to Nahid and reserved jurisdiction on other matters. This appeal followed.
II. DISCUSSION
A. The Trial Court Properly Entered Default
Mehdi first claims that we must reverse the August 3, 2010 entry of default because he was not properly served with notice of entry of it.
Generally speaking, when the court grants or denies a motion, the prevailing party is charged with giving notice of the decision to his or her opponent(s). (§ 1019.5, subd. (a).) The purpose of giving notice is to start the time running to amend or answer after the court has ruled on a demurrer, or to seek reconsideration. As well, notice assures that parties not present at the hearing are aware of the court’s order. (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2012) § 9:320:1, p. 9(I)-122.)
Mehdi claims that “[t]he jurisdiction of the trial court” depends on whether service of notice of entry of the order was made. Thus he reasons that the entry of default on August 3, 2010, was “defective” because the court and counsel did not provide him with proper notice of the court’s July 14 order.
There may be a jurisdictional consequence for failure to give proper notice of entry of a judgment or order. For example, section 659 specifies that notice of intention to move for a new trial must be filed and served within 15 days of the date of the notice of entry of judgment by any party or within 15 days of mailing the same by the clerk of the court. Compliance with section 659’s notice requirement is jurisdictional. (Tri-County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 277.) In addition, where the California Rules of Court allow a defendant 10 days to answer upon the overruling of his or her demurrer, the time begins to run from the time of service of notice of the order. If the required notice is not given and the time to answer has not expired, the default judgment is properly set aside. (Harris v. Minnesota Investment Co. (1928) 89 Cal.App. 396, 400, 404 (Harris).)
Amendment of this provision since the time of the 2010 entry of default made no substantive change to section 659. (See former § 659 [Stats. 1970, ch. 621, § 1, p. 1232]; § 659 [Stats. 2012, ch. 83, § 1].)
Under the court’s assessment of the proper procedures for giving notice at that time, a card mailed to defendant’s attorney by the clerk of court, notifying him that the demurrer had been overruled, was not sufficient. (Harris, supra, 89 Cal.App. at p. 404.)
Mehdi also calls our attention to Hughes Mfg. etc. Co. v. Elliott (1914) 167 Cal. 494. There, long ago, our Supreme Court indicated that the fact that counsel must have been in court during argument on a section 473 motion did not imply actual knowledge of the making or entry of the resulting order. Therefore, the time to serve and present the bill of exceptions on appeal from the order did not begin to run immediately upon the court’s decision. (Id. at pp. 495-496.) Actual notice or knowledge, other than written notice, said the court, was insufficient unless written notice was waived. (Id. at p. 496.)
Mehdi overstates the law and his case. Here, the court was absolutely clear that the responsive pleadings were to be filed within 30 days of the hearing, not 30 days from the notice of entry of order. Thus, no jurisdictional consequence was triggered by the timing of giving notice of entry, as was the case in Tri-County Elevator Co. v. Superior Court, supra, 135 Cal.App.3d 271, 274 (notice of intention to move for new trial must be served within 15 days of notice of entry of judgment), and Harris, supra, 89 Cal.App. 396, 400 (court rules that 10 days to answer runs from giving of notice of order).
Additionally, in this case, counsel was in court during argument and the delivery of the order, discussing specifics of the order with the court and opposing counsel. Thereafter, Rad complied with the order’s directive to pay certain fees, and engaged in correspondence with Shafae about the contents of the order. These facts distinguish this case from the nearly 100-year-old opinion in Hughes Mfg.etc. Co. v. Elliott, supra, 167 Cal. 494. Not only was counsel present and engaged during the delivery of the order, he acted on its directives.
For all these reasons, we do not adopt Mehdi’s view that the trial court was without jurisdiction to enter his default on August 3, 2010, for failure to file a responsive pleading.
In any event, Mehdi cannot collaterally attack his default when he refused to take the necessary steps to cure his own failure to file responsive pleadings. Section 473 is unequivocal that application to be relieved from a default judgment must be accompanied “by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” (§ 473, subd. (b), italics added.) Mehdi has never filed responsive pleadings and did not include any with his August 9 or August 30 motions to set aside the default. There is a reason Mehdi never filed responsive pleadings: He did not wish to generally appear in the Alameda County dissolution proceedings, desiring instead to contest jurisdiction on grounds that the Iranian divorce proceeding divested the trial court of jurisdiction. Bending over backwards to accommodate Mehdi’s perceived desire for an adjudication of the jurisdictional issue, the court, on its own motion, set an order to show cause hearing why the matter should not be dismissed under section 473, subdivision (d).
B. California Has Subject Matter Jurisdiction to Determine Custody
Mehdi attacks the outcome of that hearing, arguing that California does not have subject matter jurisdiction to determine custody. He urges that contrary to the trial court’s ruling, Iran is the home state for purposes of jurisdiction under the UCCJEA. The lower court’s ruling will stand.
1. Response to Order to Show Cause
In response to the order to show cause, the parties presented declarations focusing on the purpose of the December 2008 trip to Iran.
Nahid declared that she and K.A. traveled to Iran on vacation, but she returned to the United States alone in February 2009, when Mehdi notified her that his intent all along was to bring her to Iran to procure a divorce on grounds of adultery and subject her to punishment at the hands of Iranian courts. She submitted a copy of an itinerary showing flights returning to San Francisco on April 21, 2009, booked for herself and KA., but the itinerary did not show when the flights were booked.
Mehdi asserted that the family decided to return permanently to Iran because Nahid disliked the United States and because of the poor economy. Nahid planned to return here in April 2009 for the limited purpose of maintaining her green card status. He declared that after arriving in Iran, they purchased a new car, Nahid renewed her Iranian driver’s license and he applied for his as well as “the Iranian equivalent of a U.S. social security card.” Mehdi also submitted declarations from family and friends rendered in April 2009 but first filed in court in December 2010. Declarants variously stated on the one hand that Nahid told them she was happy to return to Iran on a permanent basis; on the other hand they described her return to the United States in February 2009 as “pre-planned, ” or with “premeditated planning” and without Mehdi’s knowledge.
Documentation to support these assertions was attached to declarations filed by Rad, not Mehdi. Thus, as the trial court correctly found, the documentation was not properly authenticated. In any event, the sales contract for the car identifies Mehdi as the buyer; Nahid’s name does not appear on the document. Further, there is documentation that Mehdi completed driver’s training, but none showing Nahid had done the same.
2. Governing Law
The UCCJEA is the exclusive method of determining subject matter jurisdiction in custody cases. (Fam. Code, § 3421, subd. (b); In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 490 (Nurie).) The act governs custody cases involving international as well as interstate conflicts. (Fam. Code, § 3405, subd. (a); In re Marriage of Newsome (1998) 68 Cal.App.4th 949, 956.) Since subject matter jurisdiction is in question, we are not bound by the trial court’s findings and instead may independently weigh the jurisdictional facts. (Ibid.) Subject matter jurisdiction either exists, or not, at the time the action is commenced. (Nurie, supra, 176 Cal.App.4th at p. 490.)
The UCCJEA grants California courts jurisdiction to make an initial child custody determination when California “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent... continues to live in this state.” (Fam. Code, § 3421, subd. (a)(1).) “Home state” is defined as “the state in which a child lived with a parent... for at least six consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period.” (Id., § 3402, subd. (g).) Physical presence in California is not a prerequisite to subject matter jurisdiction. (Id., § 3421, subd. (c).)
3. Analysis
The trial court rendered a well-reasoned decision on the issue of jurisdiction, concluding that California was the minor’s “home state” and thus had jurisdiction to proceed under the UCCJEA. Mehdi’s argument that Iran is the home state is not persuasive. He recites only his version of the facts while completely ignoring the trial court’s findings and analysis, discussed below, which we find compelling and supported by the evidence.
K.A. lived in California since her birth in 2006 and departed for Iran in December 2008, but the exact date was never established. Mehdi averred that he arrived in Iran on December 29, 2009 (sic), with a one-way ticket, and Nahid and K.A. left three weeks before he did. Acknowledging the “disparate, if not conflicting” facts put forth by the parties in response to the order to show cause, the trial court concluded that the most reasonable construction “is that when the parties traveled to Iran in December 2008 and perhaps in the first months they were there, they did not have a clear meeting of the minds as to their purposes in going to Iran. While [Mehdi] may have intended to return to Iran permanently when he left the United States, the evidence such as it is supports a finding that [Nahid] intended on just visiting in Iran or had an equivocal or unclear intention about her purpose for making the trip. What is clear is that when [she] learned of [Mehdi’s] intent to remain in Iran permanently, she returned to the United States, attempting unsuccessfully to bring the minor with her. The time she spent in Iran was a temporary absence from the United States.” (Fn. omitted.)
This evidence includes Mehdi’s declaration that Nahid planned to return to the United States in April 2009 to renew her green card status. As the trial court pointed out, this assertion is inconsistent with the view that Nahid intended to move permanently to Iran.
The court reasoned that it was entirely possible that California was the minor’s home state “ ‘within six months before the commencement of the proceeding’ ” given that she lived here all her life before departing for Iran in December 2008, and the parties had not provided the exact date of departure. (Fam. Code, § 3421, subd. (a)(1).) Nonetheless, even if slightly more than six months passed between the departure of Nahid and K.A. from California and the June 12, 2009 commencement of this proceeding, this period was a “ ‘temporary absence’ ” for purposes of determining home state status under the UCCJEA.
We concur with the trial court’s conclusion and reasoning, the validity of which is underscored by Nurie, supra, 176 Cal.App.4th 478, which both parties cite. There, the parties originally were from Pakistan. Following their marriage they lived in California and their son was born here. Mother took the son to Pakistan ostensibly for a family visit but then refused to return to California. Father filed for dissolution in California and obtained custody orders under the UCCJEA; mother filed for dissolution in Pakistan four months later, neglecting to disclose the California proceeding. (Id. at pp. 485-486.) The reviewing court confirmed that California was the son’s home state when the dissolution action commenced. He was five months old when mother took him to Pakistan and turned six months while there. Nonetheless, both parents intended for him to return to California shortly thereafter. At the very least, the trip began as a “temporary absence, ” and thus the time son spent in Pakistan prior to mother informing father she would not return to California was deemed part of his period of residence here. (Id. at pp. 492-493 & fn. 12.) As in Nurie, K.A.’s absence from California, like Nahid’s, was temporary and thus a continuation of her residence here until February 2009, at the earliest, when Nahid tried to bring her daughter back to California but was prevented from doing so because she lacked Mehdi’s consent.
Mehdi argues that the trial court erred in failing to consider that he obtained an Iranian judgment of dissolution one month before commencement of the California proceeding. The Iranian proceeding did not divest the trial court of jurisdiction. Priority in time is just one factor to consider in determining jurisdiction, lest we construe the UCCJEA as promoting a race to the courthouse. (Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1021.) Moreover, as the trial court pointed out, Iran was not K.A.’s home state at the time Mehdi filed the Iranian action. The initial temporary Iranian order was issued on May 6, 2009, and thus Mehdi must have filed the action prior to that date. Therefore, at the time the Iranian action was filed, he and K.A. had not been in Iran for at least six consecutive months. ~(CT 596)~ (Fam. Code, §§ 3402, subd. (g), 3421, subd. (a)(1).) Further, that Mehdi and K.A. remained in Iran thereafter did not confer home state status on that country. As our sister court recently explained: “[W]e are persuaded a parent may not take a child to a jurisdiction, file a premature custody petition, and then use the time the child remains in that jurisdiction pending resolution of the petition to meet the six-month UCCJEA home state period, either in that custody proceeding or as a defense to the other parent’s competing custody proceeding in another state. To do so would condone blatant forum-shopping, particularly here where it appears husband’s actions were responsible for keeping S. in India after his filing of the divorce and custody actions.” (In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 380, fn. omitted.)
Mehdi also urges that the trial court ignored K.A.’s best interests. However, although a minor’s best interest is pertinent to the substantive standards for determining custody and visitation, it is not relevant to the determination of jurisdiction under the UCCJEA. (Nurie, supra, 176 Cal.App.4th at p. 492.) The issue before this court and the trial court centers on which jurisdiction has the authority to engage in the best interest inquiry and adjudicate the rivaling claims.
C. The Trial Court Properly Denied Mehdi’s Motion to Quash
Mehdi contends the court erred in denying his motion to quash, arguing that Nahid deceived the court in order to obtain the order to serve by publication. Where the evidence of jurisdictional facts is conflicting, we review the trial court’s factual determinations for substantial evidence. (Dorel Industries, Inc. v. Superior Court (2005) 134 Cal.App.4th 1267, 1273.)
Here, the trial court reviewed the original papers and evidence requesting service by publication as well as the evidence and papers submitted in connection with the motion to quash. The original papers established unsuccessful attempts to determine Mehdi’s actual location in Iran, including communication with attorney Rad.
Mehdi complains that Nahid knew his address in Iran at all times because she addressed packages to K.A. in Iran, and failed to serve Mehdi at the couple’s last address there as directed by the court. But of course the trial court had before it Nahid’s declaration acknowledging her e-mail contact with Mehdi and her awareness of various addresses in Iran where she could send things to her daughter, but also stating under penalty of perjury: “At the time that my attorney served Respondent by publication, I was not certain where Respondent had been living but I knew that he was in regular contact with his relatives in Tehran, Iran.”
Likewise, attorney Shafae’s declaration documented that in July 2009 he found it was futile to serve Mehdi by mail in Iran because the general elections had broken out into nationwide riots, and further noted that Mehdi refused to notify Nahid of his exact whereabouts. Additionally, Rad refused to cooperate in serving Mehdi and objected to the court’s jurisdiction. And, although Rad initially indicated he was representing Mehdi in the dissolution matter, he later repudiated that assertion. As well, Shafae explained that in March 2010, Rad brought to his attention that there was a discrepancy between the order of publication filed with the court and the endorsed-filed copies in Nahid’s file, to the effect that handwritten instructions on the original order dictating service on Rad and on Mehdi at his last known address did not appear on the endorsed-filed copies. Upon learning of the discrepancy, on March 5, 2010, Shafae complied with those instructions.
Section 415.50 provides that summons may be served by publication “if upon affidavit it appears to the satisfaction of the court... that the party to be served cannot with reasonable diligence be served in another manner....” Denying the motion to quash, the trial court found that Nahid and Shafae did “what was needed to appropriately obtain” the order and “met the requirements of the law.” Substantial evidence supports the trial court’s decision.
D. Mehdi Was Not Entitled To Notice of the November 29, 2011 Hearing
Finally, Mehdi claims he and counsel were entitled to notice of the November 29, 2011 hearing that resulted in entry of a default judgment of dissolution. This contention is based on the fact that although the trial court denied his motion to set aside the July 14, 2010 default, it nonetheless ordered the parties to show cause why the California action should not be dismissed in light of the Iranian judgment. Therefore, he reasons, the court necessarily vacated the default and he was entitled to notice of the November 29 hearing.
The clerk’s entry of default cuts off the defendant’s right to take further affirmative steps such as filing a motion or pleading, and the defendant loses his or her right to notice or service of pleadings and papers. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301; Brooks v. Nelson (1928) 95 Cal.App. 144, 147-148.) Mehdi attempts to bootstrap a right to notice from this rule because his attorney did, on the court’s order and after entry of default, make a showing in the trial court on the issue of jurisdiction. The rule cuts off a defendant’s rights but says nothing about the trial court’s discretion to clarifyany pertinent legal or factual matter.
Recall, the court explained that Mehdi’s motion under section 473, subdivision (b), was not the proper vehicle to raise a jurisdictional challenge. He should have pursued a motion to set aside a void judgment under section 473, subdivision (d). While denying the subdivision (d) motion, the court went out of its way to provide an opportunity to consider the jurisdictional challenge under subdivision (d). In essence, the court, without explicitly saying so, considered the section 473 motion in two parts. With its ruling that jurisdiction under the UCCJEA properly vested in California and thus the Alameda County dissolution proceeding would not be dismissed, the default stood on firm ground and Mehdi was not entitled to receive notice of the subsequent hearing to enter default judgment.
III. DISPOSITION
We affirm the judgment.
We concur: Ruvolo, P.J., Baskin, J.
Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.