Opinion
F075147
02-15-2018
FRESNO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent, v. VAN S. Appellant.
Van S., in pro. per., for Appellant. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Jennevee H. DeGuzman, Deputy Attorneys General; Linda B. Branch for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CEFS00889)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Leanne LeMon, Commissioner. Van S., in pro. per., for Appellant. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Jennevee H. DeGuzman, Deputy Attorneys General; Linda B. Branch for Respondent.
Before Gomes, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Appellant Van S. (father) appeals following the denial of his motion to set aside a default judgment entered in child support proceedings instituted by respondent, Fresno County Department of Child Support Services (County). Father contends he was not served with County's complaint and that the court did not properly calculate the amount of support. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case began in 2013, when County filed a complaint alleging father owed child support for three children born during his marriage to Maria S. The amount requested, slightly over $500 per month, derived from a disposable income figure for father based on his 2013 tax returns of $1,235 per month.
There were difficulties serving the complaint. Ultimately, County filed a proof of service stating father was served "by substituted service," in the form of leaving the complaint at father's residence with a "JANE DOE" who refused to provide her name. The proof of service describes Jane Doe as a 52-year-old Black female cotenant, with black hair and brown eyes, standing 5 feet 6 inches and weighing 220 pounds. The proof states the process server apprised Jane Doe of the nature of the papers and subsequently mailed copies of the paperwork to father's address. The process server provided additional information about the efforts to serve father in an affidavit of reasonable service attached to the proof of service.
Father did not respond to the complaint and County requested a default judgment. The court granted this request on June 17, 2013, and ordered father to pay the proposed amount of $509 per month. The trial court's docket suggests father received this judgment in June 2013.
More than two years later, on October 27, 2015, father filed a request to set aside the default judgment based on lack of service and the use of presumed income to set the support amount. County opposed. The court took some preliminary evidence at a December 2015 hearing before ultimately setting the contested hearing for January 19, 2016. It seems father did not appear at the January hearing and the court, after taking an offer of proof from County, denied father's requests without prejudice.
Nearly 11 months later, in December 2016, father filed a new income and expense declaration renewing allegations he was not the father of the minor children and that he had no income. The court scheduled a hearing for February 7, 2017, at which time it either (1) construed father's second filing as a request to set aside the 2013 judgment on grounds similar to his prior motion or (2) had received an actual second motion. The form of the second request is not clear from the documents submitted in this appeal.
The court denied father's second request to set aside the judgment. Its minute order explained the "Court denies the request to set aside the judgment in this matter. The motion is dismissed with prejudice, as the motion was filed and ruled on previously." With respect to the claims of improper service, the court wrote: "Pursuant to evidence code section 647. [¶] Court is not finding admissible evidence [¶] Family code section 7646 [¶] not filed timely [¶] Family code section 3691 [¶] possible lack of notice." With respect to the use of presumed income, the court wrote: "Family code section 17432 [¶] Based on presumed income; motion not timely and no evidence presented to overcome presumption."
This appeal timely followed.
DISCUSSION
Precisely defining the scope of father's arguments is not easy given his unorthodox briefing, but he generally argues a lack of proper service in this matter. He claims, due to this failure, that the service of a summons and complaint did not occur within the required three-year statutory period, resulting in a lack of jurisdiction and a void judgment. He contends this void judgment can be set aside at any point in time and must be set aside under the law. As part of this argument, father claims the proof of service was defective because it did not specifically identify the person served and that the required affidavit of reasonable diligence was not uniquely file stamped or noted as scanned into the file. The implication appears to be, therefore, that service was defective on its face. Father then changes tack and argues the support order entered was based on fraudulent tax returns and a failure to make the proper statutory calculations.
Unfortunately, County defends this appeal on the sole ground that the trial court properly denied father's motion on res judicata grounds. This argument is not persuasive legally or factually. To invoke res judicata, and thereby bar claims raised in subsequent proceedings, one must demonstrate three core elements: (1) the prior decision is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties involved are in privity. (See Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1218-1219.) In this case, the court denied father's initial motion without prejudice. Such a ruling leaves the underlying issues undecided on the merits because a without prejudice ruling leaves open the ability to refile the motion. (See Estate of Keuthan (1968) 268 Cal.App.2d 177, 179-180.) Factually, refiling the motion appears to be exactly what was done and seems to have been accepted as appropriate by the trial court. On the first motion, the trial court merely took an offer of proof when father was not present and denied the motion without prejudice. On the second motion, the trial court rejected the claims on their merits, citing the various bases upon which the motion was untimely, before noting the grounds asserted would, thenceforth, be denied with prejudice as father had already raised and lost on those issues once before. As such, County's argument is unsustainable because the first ruling by the trial court was not a final decision on the merits and the second ruling did not rely on res judicata principles to deny the motion.
Of course, this does not end our inquiry. But father is only entitled to relief if the trial court did, in fact, erroneously deny his motion to set aside the default judgment. On this point, the trial court's rulings all turned on its conclusion that father's motion to set aside the judgment was untimely.
With respect to collateral attacks on service, courts separate cases into two main categories, those where the judgment or order is void on its face and those where the invalidity does not appear on the face of the judgment or order. (See County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228 (Gorham).) Where the contested judgment or order shows a lack of personal jurisdiction on its face it is void and may be contested at any time. Where extrinsic evidence is needed to demonstrate a lack of personal jurisdiction, the order must be attacked within the timeframes provided by statute. (Id. at pp. 1227-1228.) In unique circumstances, where a lack of due process, or extrinsic fraud or mistake are involved, the court maintains an equitable authority to vacate a void judgment outside of the statutory timeline. (Id. at pp. 1228-1229.) We review the trial court's decision for an abuse of discretion, reviewing factual findings for substantial evidence and independently reviewing statutory interpretations and legal conclusions. (Id. at p. 1230.)
As noted above, the trial court found father's motions were untimely under the relevant statutory timelines. In doing so, the court identified its belief that service had been properly effectuated in light of Evidence Code section 647, which holds the return of process by a process service "establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return." The trial court further noted that no admissible evidence rebutted this presumption. In light of this conclusion, the trial court's judgment shows it found no facial infirmity in the proof of service and identified no facts demonstrating the proof of service was improper.
We find substantial evidence supports these conclusions. With respect to facial challenges, father contends there is no evidence the affidavit of reasonable diligence was actually filed and that there was no proper identification of the person served in the proof of service. We disagree. With respect to filing the affidavit of reasonable diligence, the document appears in the record, dated at the same time as and immediately following the file stamped and scanned proof of service. In this sense, it appears as all secondary pages to filings in the record appear—the first page (here, the proof of service) is file stamped and marked scanned, while the following pages are not. It appears in the record as any attachment or additional pages to a properly made filing would appear. Further, the docket sheet notes the affidavit of reasonable diligence was attached to the proof of service when filed on April 26, 2013. This is substantial evidence supporting the conclusion the documents were properly filed. With respect to the identification of the person served, the case law is clear that the identification of a cohabitant as a John or Jane Doe is perfectly appropriate where sufficient information is provided to identify the person served. (See Trackman v. Kenny (2010) 187 Cal.App.4th 175, 184-185.) In this case, the record evidence shows the process server effectuated service by leaving a copy with " 'JANE DOE', REFUSED NAME, CO-TENANT, Black, Female, 52 Years Old, Black Hair, Brown Eyes, 5 Feet 6 Inches, 220 Pounds." This is substantial evidence supporting the trial court's conclusion service on a Jane Doe occurred.
With no facial errors to rely upon, father is bound by the statutory timelines noted by the court unless fraud is demonstrated. The longest of these statutory timelines provides that a challenge to an improper order establishing paternity must be filed within two years of the point the father knew or should have known of a judgment establishing paternity. (Fam. Code, § 7646.) The more standard timelines provide a challenge must be raised within six months of when father discovered a fraud leading to the judgment or reasonably should have known of the order. (Fam. Code, § 3691.) Under any of these provisions, substantial evidence supports the trial court's conclusion father's motions were untimely. The first motion was not filed until more than two years after the default judgment was entered and, according to the court's docket, served by mail on father. There is no challenge to the service of this document. Thus, absent proof of fraud, Father's motions are untimely.
On the issue of fraud, father cites to no conclusive evidence demonstrating he was not served that would support a conclusion that the trial court abused its discretion. While father does claim he never lived with anyone, the trial court could properly rely on the proof of service to conclude otherwise. In this sense, this case is fundamentally different from the case cited by father that is most similar to his situation, Gorham. In Gorham, the appellant provided evidence that was sufficient to rebut the facts stated in the proof of service, that facts showing he was in prison when the process server claimed to have effectuated service on him at his home. (Gorham, supra, 186 Cal.App.4th at p. 1230.) Here, nothing in the record demonstrates the court abused its discretion by rejecting father's self-serving assertions that the person identified in the proof of service never actually lived at his house. The court therefore did not err in determining father's motions to set aside the default judgment entered in this case were not timely.
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties shall bear their own costs on appeal.