MontereyCounty Dept. Child Support Serv. v. Cardenas

Filed 2/11/10 Monterey County Dept. Child Support Serv. v. Cardenas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I. Statement of the Case

Appellant John Cardenas appeals from an order denying his motion to set aside a default judgment against him. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1137 [after entry of judgment, order on statutory motion is appealable]; Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1265-1266 [same]; see Code Civ. Proc., 473, subd. (b); 904.1, subd. (a)(2).)

Cardenas claims the court erred in denying his motion. We disagree and affirm the order.

II. Background

Cardenas and Patricia C. have three children. In August 1996, Patricia started receiving public assistance benefits from Monterey County. On August 10, 1999, the Monterey County District Attorney (County) filed a summons and complaint against Cardenas seeking ongoing child support as well as for past support from August 1, 1996 through August 31, 1999. The County also filed a proposed order and judgment and a notice that the order would be entered and become legally binding unless Cardenas filed an answer within 30 days of service of the complaint.

On September 27, 1999, at 12:35 p.m., Jorge Ugale personally served Cardenas where he was residing with a copy of the complaint and attached documents. Cardenas did not answer the complaint, and on November 30, 1999, a default judgment was entered. It ordered Cardenas to pay past and prospective child support for two of his three children. Notice of entry of the judgment was served by mail that same day.

In February 2005, Cardenas challenged his child support liability imposed under the order and judgment and filed a request with the Monterey County Department of Child Support Services (Department) for complaint resolution. In his request, Cardenas asserted that before 2000, he worked nights and did not handle any of the correspondence or bills. He tried to provide the Department with documentary evidence to support his challenge to the support order. He submitted letters to show that his three children had been living with him since birth and alleged that their mother had committed fraud to receive welfare assistance from 1993 through 2003.[1] The Department informed him that the evidence did not establish fraud and requested school records for the children from kindergarten to the present. In 2007, after further investigation, the Department confirmed that two of his children lived with him from 1999 through 2003 and notified him that he was not responsible for support during that period. However, it found insufficient evidence to support Cardenass claim that he lived with or supported the children prior to that time and advised him that it would enforce the support order for the period before 2003. In April 2007, the Department returned all of the documents Cardenas had provided.

In July 2008, Cardenas filed a motion to set aside the default judgment entered on November 30, 1999, or modify the order requiring payment of support arrearage. Among other things, he declared that he has had custody of all three children since their birth and sole custody since 2003. He declared that he worked the night shift six days a week until he became permanently disabled in April 2000. He claimed that without his knowledge, mother had committed welfare fraud by receiving public financial assistance. He explained that he had not sought relief sooner because he thought that the Department was assisting him in resolving the matter. He submitted the documents he had previously provided to the Department, including his request for complaint resolution.

In its response, the Department argued that the motion to set aside the judgment was untimely. After a hearing on August 26, 2008, the court denied the motion as untimely.

III. Discussion

Cardenas contends that the court abused its discretion in denying his motion to vacate the judgment or modify his support obligation.

Motion to Vacate[2]

Section 473, subdivision (b) permits a court to relieve a party from a judgment taken against him or her through mistake, inadvertence, surprise, or excusable neglect.[3] However, the moving party must seek relief within a reasonable time and in no case more than six months after the judgment or order was taken. ( 473, subd. (b).) That six-month time limit is jurisdictional, and after it expires, a court lacks authority to grant relief under the statute except as provided in section 473.5. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 735, fn. 3.)

Here, Cardenas sought relief more than eight years after default judgment was entered. Thus, his statutory motion was untimely unless it fell within the exception provided by section 473.5.

Under that section, a party may file a motion to set aside a default judgment if service of the summons has not resulted in actual notice to the party in time to defend the action.[4] ( 473.5, subd. (a).) Even then, however, a delayed motion for relief must be filed within a reasonable time and in no case more than two years after either entry of the default judgment or 180 days after service of written notice of the judgment, whichever comes first. (Ibid.)

Neither exception to the six-month time limit in section 473 applies. Cardenas was served by mail with notice of entry of the default judgment on November 30, 1999, the same day it was filed. Moreover, the record further shows that Cardenas received actual notice of the judgment imposing his support obligation by at least February 2000, when he started sending documents to the Department to show that the order was based on mistaken information and to have the order corrected. Thus, even if the 180-day extended period were inapplicable, Cardenas still failed to seek relief within two years after the judgment was entered.

A motion to vacate a default and default judgment under section 473 is reviewed for abuse of discretion. (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1041; Davis v. Kay (1973) 34 Cal.App.3d 680, 683.) Because the record establishes that Cardenass motion under section 473 was untimely, he cannot show that the trial court abused its discretion in denying it.

Motion to Modify the Order[5]

Even when the six-month time period or extended periods within which to move to vacate the judgment have expired, a court still has the authority under section 3690 to relieve a party from all or any part of the support order on any terms that may be just.[6] Under section 3691, the exclusive grounds for seeking relief under section 3690 are fraud, perjury, and lack of notice.[7]

As noted, Cardenas claimed that he worked nights during the pertinent period and did not handle the mail or bills; and, unbeknownst to him, the childrens mother committed welfare fraud. Arguably, therefore, Cardenas could potentially have sought relief on grounds of fraud, perjury, and lack of notice.[8]

However, a motion based on fraud or perjury must be brought within six months from the time the party discovered or reasonably should have discovered the fraud or perjury. ( 3691, subds. (a) & (b).) Similarly, a party who did not receive notice of the support action in time to defend against it may file a motion within six months after he or she obtains notice or reasonably should have obtained notice of the support order or of the fact that his or her income and assets are subject to attachment. ( 3691, subd. (c).)

As noted, Cardenas was served by mail with notice of entry of the default judgment on November 30, 1999; and by February 2000, he was aware of the order requiring him to pay past and prospective child support because he started sending documentation to the Department to have it corrected. Moreover, the record shows that he formally complained in writing about the alleged welfare fraud by the childrens mother in May 2004. Thus, even under sections 3690 and 3691, Cardenass motion in 2008 was untimely.

Equitable Relief

Generally, a trial court has the inherent power to vacate a default judgment on equitable grounds. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981.) On the other hand, the Legislature has the authority to limit a courts equitable power except where doing so impinges on the exercise of fundamental judicial powers and thus violates the separation of powers doctrine. (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 131, fn. 14; Boniarz v. Roloson (1969) 70 Cal.2d 143, 147; e.g., JPMorgan Chase Bank, N.A. v. City and County of San Francisco (2009) 174 Cal.App.4th 1201, 1213-1214 [statutory languages reflect legislative intent to restrict judicial doctrine of equitable tolling].)

Section 3692 provides, Notwithstanding any other provision of this article, or any other law, a support order may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the support ordered to become excessive or inadequate. (Italics added.)

In construing statutes, the courts fundamental purpose is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. In determining this intent, we first look at the statutory language, giving the words their usual and ordinary meanings. However, we do not automatically adopt the literal meaning if doing so would result in absurd consequences which the Legislature did not intend. Rather, the statutory language must be read in context, keeping in mind the nature and purpose of the enactment, and must be given such interpretation as will promote rather than defeat the objective of the law. (People v. Hull (1991) 1 Cal.4th 266, 271, 274; Younger v. Superior Court (1978) 21 Cal.3d 102, 113; In re Michael M. (2001) 86 Cal.App.4th 718, 724.)

The language of section 3692 is unambiguous. Moreover, when read together, sections 3690, 3691, and 3692 reflect a legislative intent to restrict the courts power to vacate or set aside a default judgment or an order for child support included within a default judgment to statutory grounds and the time limits set forth in those sections and sections 473 and 473.5 of the Code of Civil Procedure. In other words, those grounds and time limits provide the exclusive bases for relief, and the court may not grant relief by invoking its inherent power to set aside an order based on equitable considerations. (See Marriage of Tavares (2007) 151 Cal.App.4th 620, 626.)

In any event, even if we assume for purposes of argument that the court could have exercised its inherent equitable power to vacate the default judgment on some equitable ground, the record does not suggest that Cardenas was entitled to such relief.

When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. [W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted. [Citations.] [] Apparently to further the foregoing policy, one appellate court has created a stringent test to qualify for equitable relief from default on the basis of extrinsic mistake. To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once . . . .discovered. [Citation, italics omitted.] (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 981-982; In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1061; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148.)

First, in the absence of any evidence that the mail sent to Cardenas was wrongfully hidden from him or that he was otherwise prevented from seeing mail sent to him, his explanation that he worked nights and thus did not read his mail or see bills does not constitute a compelling equitable reason to grant relief from default. Similarly, that the childrens mother provided false information to authorities to obtain welfare benefits does not, under the circumstances, constitute a compelling reason to excuse his failure to seek timely statutory relief. Finally, Cardenas was aware of the support order, the alleged mistake concerning his support obligation, and the alleged fraud by the childrens mother years before he sought judicial relief. Simply put, the record establishes that he failed to exercise diligence in seeking that relief after becoming aware of his support obligation.

That Cardenas first sought to resolve his disagreement with the support order by filing a request for complaint resolution with the Department does not suggest that he acted with diligence or otherwise excuse the long delay in seeking to vacate the judgment because he did not file a request for resolution until 2005, several years after he first became aware of the support order and the alleged error in requiring that he pay support. Moreover, importantly, after the Department partially resolved his complaint, Cardenas still waited more than a year before seeking judicial relief. He presented no evidence below that reasonably explained, let alone justified, that delay.

IV. Disposition

The order denying the motion to set aside the default judgment is affirmed.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

elia, J.

___________________________________

DUFFY, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1]On May 28, 2004, Cardenas filed a request for a hearing because he disagreed with the Countys action, and in his request, he accused the childrens mother of fraud.

[2] In this section, all unspecified statutory references are to the Code of Civil Procedure.

[3] Section 473 subdivision (b) provides, in relevant part, The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Italics added.)

[4] Section 473.5, subdivision (a) provides, in relevant part, When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Italics added.)

[5]Hereafter, all unspecified statutory references are to the Family Code.

[6] Section 3690, subdivision (a) provides, The court may, on any terms that may be just, relieve a party from a support order, or any part or parts thereof, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this article.

[7] Section 3691 provides, in relevant part, The grounds and time limits for an action or motion to set aside a support order, or any part or parts thereof, are governed by this section and shall be one of the following: [] (a) Actual fraud. Where the defrauded party was kept in ignorance or in some other manner, other than his or her own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the fraud. []  (b) Perjury. An action or motion based on perjury shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the perjury. [] (c) Lack of Notice. [] (1) When service of a summons has not resulted in notice to a party in time to defend the action for support and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event later than six months after the party obtains or reasonably should have obtained notice (A) of the support order, or (B) that the partys income and assets are subject to attachment pursuant to the order.

[8]Cardenas did not expressly file his motion under section 3690 or even cite it in his pleadings or at the hearing.