Opinion
B323412
11-15-2023
COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. KARL M. ROWE, Defendant and Appellant.
Karl M. Rowe, in pro. per., for Defendant and Appellant. Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Maureen C. Onyeagbako and Ricardo Enriquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BD191291 Michelle L. Kazadi, Judge. Affirmed.
Karl M. Rowe, in pro. per., for Defendant and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Maureen C. Onyeagbako and Ricardo Enriquez, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
Karl M. Rowe, in pro per, appeals from the trial court's order denying Rowe's motion to "Void Default Judgment of September 19, 1995," a 1995 judgment establishing paternity and ordering payment of child support (Judgment). Rowe claims the Judgment is void because respondent, the Los Angeles County Department of Child Support Services (respondent or the Department), did not properly serve him with the 1994 summons and complaint on which the Judgment is based. In 2001, Rowe unsuccessfully litigated the same issue. We conclude that the 2001 litigation collaterally estops Rowe from challenging the service of the summons and complaint and affirm the order denying Rowe's motion.
In addressing Rowe's arguments, we have overlooked deficiencies in Rowe's briefing, including his failure to cite to the record on appeal. (See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384 [issue forfeited where appellant failed to cite to the record].) As we later detail, the record is also incomplete, which has complicated review. (Jameson v. Desta (2018) 5 Cal.5th 594, 609 [appellant has the burden to provide an adequate record].) For example, there is no reporter's transcript from the 2001 hearing in which Rowe made the same challenge to service that he asserts here. There also are no copies of the multiple motions he filed between 2019 and 2021 in which he also sought to vacate the Judgment. These deficiencies notwithstanding, Rowe's briefing and the record before us compel the conclusion that collateral estoppel bars his appellate challenge to the Judgment.
BACKGROUND
It is undisputed that Rowe is Timothy Rowe's (Timothy's) father and that Timothy was born in August 1993. We summarize the proceedings leading up to this appeal.
1. 1994 child support proceeding (BD191291)
The Department filed a summons and complaint on September 13, 1994. The proof of service dated June 1, 1995 shows Rowe was served at "6201 Sunset Blvd. #62." The registered process server stated that "after due diligent effort I have been unable to effect personal service" on Rowe. Rowe did not appear in court and was not represented by counsel.
The Department of Child Support Services was created by Family Code section 17200 in 2000. Respondent represents that prior to 2000, the district attorney's office established child support obligations. The identity of the government agency with responsibility for child support enforcement is not relevant to this appeal. We thus use the term "Department" for ease of reference.
The court entered the default Judgment on September 19, 1995. The Judgment recites that it establishes (1) a parental relationship and (2) child support. Specifically, the court determined Rowe was Timothy's father and ordered Rowe pay $246 monthly in child support.
2. Rowe's 2001 motion to vacate default
On March 14, 2001, now represented by counsel, Rowe filed a motion to set aside the default and the Judgment. Counsel argued entry of the Judgment violated Rowe's due process rights because the Department did not properly serve him. According to Department's counsel in a declaration, the process server "made several attempts to serve the Summons and Complaint on [Rowe] at a Post Office Box number located at 6201 Sunset Boulevard, Los Angeles." "The Proof of Service shows that on May 30, 1995, the day of the third attempt to serve defendant, the process server left the Summons and Complaint with . . . [the] 'person apparently in charge' of the postal box location. At no time was defendant personally served with a copy of the Summons and Complaint by the District Attorney's Office."
In his declaration in support of the motion to set aside the default and vacate the Judgment, Rowe stated: "I have reviewed the documents on file in this case and have learned that I was substituted served with the summons and complaint at an old postal box address located at 6201 Sunset Boulevard, Los Angeles. At the time I was substituted served, I was not using the postal address and did not collect mail from the location." Rowe indicated that he learned of the Judgment for the first time on March 2, 2001.
In its opposition, the Department provided an "Address Information Request" completed by the Post Office indicating that Rowe received mail at the Sunset Boulevard address as of September 27, 1994. (Underscoring & some capitalization omitted.) A deputy district attorney provided a declaration in which she swore Rowe used the Sunset address to file his 1993 and 1994 tax returns, the 1994 return having been filed on April 15, 1995, one and a half months before the service in the 1995 case.
In the current proceedings, it appears Rowe agrees that he used the mailbox address to file his tax returns. He states, "[E]ven though my federal and state income tax returns bore my shipping address[, i]f the IRS or the California Franchise Tax Board needed to contact me, they would be able to do so using the same telephone number or email address that I use today." "As I had made clear in the January 3, 2022 hearing, I had, for business reasons, used my shipping address on my tax returns since whenever I needed to produce copies of my tax returns, I did not fear my home address would be publicly disseminated ...."
After a hearing at which Rowe was represented by counsel, the court denied Rowe's 2001 motion to set aside the default and Judgment. Rowe did not appeal the May 29, 2001 order denying his motion to set aside the default and Judgment.
3. Criminal proceedings
In August 2001, the criminal court issued an order sentencing Rowe as follows: "Imposition of sentence is suspended. The defendant is placed on Summary Probation for a period of 36 months on the following terms and conditions" including that he "[p]ay child support pursuant to LASC # BD191291 for 1 child in the sum of $246.00." The conditions also required Rowe "[p]ay child support arrears of $23,981 ...."
It appears this sentence was the product of Rowe's plea of no contest because the order states: "After completion of probation, defendant [should] be allowed to withdraw his plea of no contest and the case dismissed provided the defendant has no probation violations or bench warrants. The word "expunged" is written under the word "dismissed." Rowe signed the order reciting the sentence and terms and conditions of probation.
The order does not specify to what crime Rowe pleaded. A reference at the top of the order, however, identifies Penal Code sections 270 and 166, subdivision (a)(4). Penal Code 270 makes a parent's failure to provide his or her child necessary clothing, food, shelter, medical attendance, or remedial care a misdemeanor. Penal Code section 166, subdivision (a)(4) describes misdemeanor contempt of court.
4. Additional motions to vacate the Judgment
Respondent represents that Rowe filed a 2019 motion to vacate the Judgment that the court denied. Neither the request nor the court's order is included in the appellate record. The trial court (Judge Michelle L. Kazadi) that denied Rowe's motion before us indicated on the record the 2019 motion was denied on res judicata, among other grounds. Rowe does not dispute Judge Kazadi's description of the denial of his 2019 motion.
Between 2019 and 2021, Rowe filed multiple motions to "Void Default Judgment of September 19, 1995" in case No. BD191291. These additional motions are not in the record before us.
Rowe filed the motion before us initially on ex parte notice. Commissioner Frank W. Chen treated the motion as a regularly noticed motion and continued the hearing. Rowe did not stipulate to Commissioner Frank Chen hearing the motion.Thus, following the hearing, Commissioner Chen could only make recommended findings to the trial court, here Judge Kazadi.
Commissioner Chen's findings indicate that Rowe objected to the commissioner acting as a temporary judge.
Family Code section 4251, subdivision (c) provides: "If a party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within 10 court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days. A party may waive the right to the review hearing at any time."
On November 1, 2021, Commissioner Chen issued his recommended findings. The commissioner found the Judgment was void for lack of proper service, but Rowe was not entitled to reimbursement for child support he had already paid. Commissioner Chen also found that res judicata and collateral estoppel did not bar Rowe from relitigating the issue of service because "[j]urisdictionally defective judgments are open to challenge at any time."
Respondent requested a de novo hearing of the commissioner's findings. Rowe requested a partial de novo hearing limited to the finding that he was not entitled to reimbursement. Under section 4251, the trial judge, Judge Kazadi, properly considered the entire matter de novo after respondent objected to the commissioner's recommended order.
See footnote 5, ante.
At the de novo hearing, Rowe argued again that he was never "personally served" in the 1995 parentage case. Rowe explained that in 2001, he told "the judge that the proof of service indicates that I [Rowe] hadn't been served ...." "I should have been personally served. I wasn't ...." Rowe continued: "I've been making special appearances every time to try to get it set aside and vacated because . . . I considered the default judgment to have been entered erroneously." According to Rowe, the "Family Court didn't have the jurisdiction to have ordered me to pay child support because I wasn't personally served.... And even when I brought it to the court's attention, my attorney brought it to the court's attention and we ended up going before . . . [Judge] Marshall Rieger [in 2001], my attorney appeared before him on my behalf ...."
Judge Kazadi asked Rowe if he was making the same argument he made in 2001. Rowe answered affirmatively. Judge Kazadi found, inter alia, that the 2001 court "made a determination regarding the personal service issue." Judge Kazadi stated Rowe "has not provided any new facts." Rowe interrupted and agreed, stating, "It's the same facts, I was never served." Judge Kazadi denied Rowe's motion to "Void Default Judgment of September 19, 1995."
The trial court's minute order denying Rowe's motion to "Void Default Judgment of September 19, 1995" recites the court's reasoning, emphasizing the repetitious nature of that motion: "March 14 2001-Respondent [Rowe] filed Motion to Set Aside Default [citations] and Default Judgment (void, violates due process, obtained by fraud, set aside on equitable grounds)- DENIED-May 19 2001 ...." Rowe "also argued the Default Judgment is void, etc. The court heard testimony regarding the attempted personal service at [Rowe's] home, additionally about information that the DA received about [Rowe's] use of the postal box location to file his tax returns and the address listed on the tax returns in April of 1995.] All of this information was considered by the judicial officer and the judicial officer denied [Rowe]'s motion on May 19, 2001."
The court further stated: " [Rowe] is now asking for the same relief requested 21 years ago. [Rowe] has made multiple challenges to the Default Judgment on the same facts. No new facts." The court also found Rowe was not entitled to relief under Code of Civil Procedure sections 473, subdivision (d) (allowing court to set aside a void judgment), 473.5, subdivision (a) (allowing a party to file within a reasonable time a motion to set aside a default and default judgment), or 1008, subdivision (a) (allowing reconsideration of an order within 10 days of notice of entry of the order based on new or different facts or law) or Family Code section 3691 (allowing a party to set aside a support order based on lack of notice within six months after the party obtains or reasonably should have obtained notice of the order).
Rowe timely appealed from the trial court's order denying his motion to vacate. The order is appealable. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691 [denial of motion to vacate allegedly void judgment is appealable].)
DISCUSSION
On appeal, Rowe again argues the Judgment is void because he was not properly served and therefore the 1995 court lacked jurisdiction over him. Rowe contends a void judgment may be attacked at any time and the doctrine of res judicata does not apply to void judgments. Rowe requests this court order the trial court to (1) vacate entry of default; (2) set aside the order authorizing the garnishment of Rowe's wages; and (3) reimburse Rowe for any previously garnished wages, which, according to Rowe, total $18,443.92. Rowe also seeks reimbursement of attorney fees he incurred in challenging the Judgment. Finally, he asserts the order entered in August 2001 in his criminal case is similarly void because it flows from the void Judgment.
Rowe is generally correct that void judgments may be challenged at any time. But we do not agree that he gets a do-over once his challenge has been litigated to finality.
"[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void." (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) A void judgment may be set aside at any time. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830 ["A void judgment can be attacked at any time by a motion under Code of Civil Procedure section 473, subdivision (d)"]; but see Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181 [a judgment that is not facially void must be attacked within two years after entry of judgment].)
We also agree a void judgment does not have res judicata effect:" 'The doctrine of res judicata is inapplicable to void judgments. "Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction ...."' [Citation.] 'A "final" but void order can have no preclusive effect." 'A void judgment [or order] is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.'"' [Citation.]" (People v. Kim (2012) 212 Cal.App.4th 117, 125.)
But the issue here is not whether a void judgment can have res judicata effect. Instead, the issue is having litigated to finality whether service was valid, Rowe can relitigate his challenge to service. He cannot because he is collaterally estopped from doing so.
Collateral estoppel" 'precludes relitigation of issues argued and decided in prior proceedings.' [Citation.]" (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Collateral estoppel includes the following elements:" 'First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding....' [Citation.]" (JPV I L.P. v. Koetting (2023) 88 Cal.App.5th 172, 191.)
Here, Rowe seeks to relitigate whether the Department properly served him, the identical issue he litigated in 2001. In the proceedings below, Rowe admitted he made the same argument in 2001. Rowe further stated his current motion was based on the "same facts" as his 2001 motion that he "was never served." The issue was necessarily decided against Rowe when in 2001, the court denied Rowe's motion to vacate the default and Judgment. Rowe is the same party who brought the motion in 2001. Rowe did not appeal from the 2001 denial of his motion to vacate.
Rowe's remaining arguments are based on the same premise, that he was not properly served with the summons and complaint. Because he has already litigated that issue to finality and lost, Rowe fails to demonstrate error on appeal and thus any entitlement to attorney fees. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822 [to be successful on appeal appellant must demonstrate error].) Finally, respondent is correct that this court does not have jurisdiction to consider the order in 2001 criminal matter because that order is not before us. Rowe appealed only the order denying the motion to vacate the default and Judgment in the civil case.
DISPOSITION
The order denying Karl M. Rowe's motion to vacate the 1995 default and Judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: ROTHSCHILD, P. J. WEINGART, J.