Filed 7/21/10
CERTIFIED
FOR PUBLICATION
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
COUNTY
OF SAN DIEGO,
Plaintiff and Respondent,
v.
ARTIS EARL GORHAM,
Defendant and Appellant.
D055200
(Super. Ct.
No. DF084337)
APPEAL from
an order after judgment of the Superior
Court of San Diego
County, Patti C. Ratekin,
Commissioner. Reversed with directions.
Linda
Cianciolo for Defendant and Appellant.
Edmund G.
Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General,
Paul Reynaga, Sharon Quinn and Marina Linda Sota, Deputy Attorneys General, for
Plaintiff and Respondent.
Artis Earl
Gorham appeals from an order denying his motions to set aside a 1998 default
judgment obtained against him by the County of San Diego Department of Child
Support Services (DCSS)[1] and to dismiss the action. He brought his motion to vacate the judgment
on grounds the trial court never acquired jurisdiction over him in this case
because he was never served with a summons
and complaint contrary to the fraudulent representation of the process
server's return, and, therefore, the judgment was void. Further, because the summons and complaint
were thus not served on him within three years of the date this action was
commenced, Gorham also moved for mandatory dismissal of the case under sections
583.210 and 583.250 of the Code of Civil Procedure.
Under the
unique circumstances of this case, we determine the trial court erroneously
concluded it was foreclosed from granting the equitable relief requested by
Gorham's failure to timely file his motions under various statutory provisions
in the Code of Civil Procedure and the Family Code for relief from a void child
support default judgment. Because the
court never acquired fundamental personal
jurisdiction over Gorham in this case, we reverse the order denying his
motions and direct the trial court to dismiss this action.
FACTUAL
AND PROCEDURAL BACKGROUND
On October 15, 1997, the DCSS filed a
complaint against Gorham to establish paternity, child support, retroactive
support and the provision of health insurance for a minor female child born out
of wedlock in 1991. On May 19, 1998, the DCSS filed a proof
of service signed under penalty of perjury by a registered process server named
David Lopez, stating he had personally served Gorham with the summons and
complaint in this matter on May 8, 1998,
at 7:13 p.m. at 5879
Imperial Avenue, San Diego, California. The DCSS requested entry of default on June 18, 1998, and a notice of the
request and date for the hearing on the default matter were mailed to Gorham at
the same address where he was allegedly served with the summons and complaint.
On July 15,
1998, the trial court entered a default judgment, finding Gorham was the father
of Crystal B. born in June 1991, and ordering him to pay child support of $341
per month beginning November 1, 1997, and to pay arrearages of $12,276 for
child support for the previous three-year retroactive period at $100 per month
beginning August 1, 1998. The court also
ordered Gorham to provide health insurance coverage for Crystal
and issued a wage and earnings assignment order to attach any income of
Gorham's to satisfy his obligations.
On March 13, 2002, Gorham appeared at
the DCSS offices and met with a caseworker who advised him that there was another
default judgment against him besides the one he was aware of for the support of
his son from another relationship. The
case worker did a postdefault review with Gorham regarding the known case
involving his son, reaching a compromise for amounts owed, including an accord
for "zero" arrearages for periods "7/1/96-7/31/96,
6/1/97-6/30/97, and 2/1/98-10/31/98" due to Gorham's incarceration. The case worker was not able to do a review
of this case with Gorham because "aid had closed" with regard to Crystal
on "8/31/00." The case worker advised Gorham to consult
with the local family law facilitator for assistance in filing a motion to
contest the default judgment entered regarding this case.
Subsequently,
on July 22, 2002, and again
in May, June and July 2003, DCSS received money from an intercept of Gorham's
unemployment insurance benefits, which the agency allocated to his support
obligations in both cases.
In December
2007, while incarcerated at Kern Valley State Prison, Gorham received a
statement from the DCSS, claiming he owed in excess of $58,000 for unpaid child
support in this case. He was released
from prison on January 22, 2008. On April 24,
2008, Gorham specially appeared through counsel to file the subject
motions to set aside the 1998 default judgment based on fraudulent service and
for dismissal of the underlying complaint.
In his attached declaration, Gorham conceded he had lived for one month
in 1997 (May to June) at the address where he was purportedly served, but
claimed he did not live there at the time of the alleged service. More importantly, regardless of the address,
Gorham claimed he had not been personally served on May 8, 1998, as stated in the proof of service
because he was incarcerated on that date, and he had never been served the
complaint within three years of the date of commencement of this action. In support of his claim of incarceration,
Gorham attached copies of court minutes from April 27, 1998 and May
26, 1998, respectively, showing his guilty plea and sentencing in
San Diego Superior Court case People v.
Gorham, Case No. SCD134882, as well as six pages of his incarceration
history.
In its
opposition, the DCSS argued Gorham had not adequately rebutted the presumption
in favor of legitimate service because it had obtained the address where Gorham
had been served from the California Department of Motor Vehicles records, which
listed it as his valid address for service of process (Veh. Code,
§ 1808.21, subd. (c)), and the April 27, 1998 minutes indicated that
Gorham had been remanded to the custody of the county sheriff with bail set at
$10,000 and there was no showing whether Gorham had posted bail and had been
released before the sentencing hearing in that criminal case.
At the May
29, 2008 hearing on the matter, in response to Gorham's argument that his
constitutional rights to due process were never met because the court did not
obtain personal jurisdiction over him in the complete absence of being served a
summons, the DCSS argued that even assuming ineffective service and a void
judgment, Family Code section 3691 controlled to preclude Gorham's motions
because he did not act within the reasonable time stated in that section to
vacate the default judgment, i.e., within six months after he learned of the
judgment in March of 2002. The court
continued the matter so that the parties could file points and authorities on
the application to this case of Family Code section 3691.
At the
continued hearing, the court noted it was struggling with the issues in this
case because of the finality of judgment rule and the public policy of
supporting children and the fact that because Gorham had spent most of the time
incarcerated, had he "been participating all along chances of there being
a support order [would have been] nil."
Although the court did not believe Gorham had ever been served, noting
it did "not believe that David Lopez even made an attempt to serve him in
this case [and that] he fraudulently signed that proof of service," it
expressed concern with Gorham's inaction to set the matter aside until 2008
after becoming aware of the default judgment in 2002 when he went into the DCSS
offices. The court requested further
briefing on the issue of whether it ever had jurisdiction over Gorham and
whether Family Code section 3691 applied to foreclose a remedy in this case.
At the October 31, 2008 hearing, the court
announced its tentative decision to dismiss the proceeding based on case
authority regarding fraudulent service that precluded a finding of personal
service and jurisdiction, especially because of its knowledge of the David
Lopez problem regarding service.
However, after hearing opposition to the tentative and further argument
from Gorham, the court took the matter under submission with the parties'
agreement it would take judicial notice of Gorham's 1998 criminal file to see
if the documents could verify whether Gorham had posted bail and was out of
custody on the day the proof of service alleged he had been personally served
at home.
After
considering Gorham's objections to its proposed statement of decision, on March 11, 2009, the court issued a
final statement of decision and order denying Gorham's motions as untimely
under statutory law to set aside void judgments and to dismiss cases. In doing so, the court specifically found
Gorham had rebutted the facts stated in the proof of service because the
evidence showed he had been incarcerated at the time he was alleged to have
been personally served, which rendered the default judgment in this matter void
for lack of personal jurisdiction. It
also found that a false proof of service, as in this case, constitutes
extrinsic fraud.
Nonetheless,
the court determined that Gorham's motion to vacate a void judgment when the
defect, as here, is not apparent from the record, was untimely if sought under
the Code of Civil Procedure (§ 473.5, subd. (a)), because it was not brought
within the required reasonable time not to exceed two years after the entry of
judgment. If sought under its equity
authority, the court found that Gorham's motion to vacate the judgment was
still not made within a reasonable time because he had not acted promptly after
learning of the default judgment in 2002 and that setting it aside would
significantly impair the substantial interests of both the county and Crystal's
mother. The court stated that although
it was aware of problems with the process server involved in this case, the
evidence was insufficient to show that the proof of service, although false,
was "intentionally" or "willfully" false.
The court
further ruled that any traditional equitable set-aside relief had been
statutorily preempted regarding support orders by Family Code section 3691,
which it gleaned provided for the exclusive remedy for such orders after the
time limits in the Code of Civil Procedure had run. The court noted that to be timely under
Family Code section 3691, subdivision (a), Gorham's claim of relief based on
actual fraud would have had to have been brought within six months after he
discovered the fraud or reasonably should have discovered it in March 2002, or
if based on lack of notice under subdivision (c)(1) of Family Code section
3691, would have had to have been brought within six months of obtaining notice
of the support order or notice of the order attaching his income and
assets. The court found that under
either theory, Gorham was at least six years too late.
Although
the court recognized that due process
concerns are implicated when a service of summons has not been served at all,
it believed these concerns were addressed by Family Code 3691, which it found
embodied the policy of finality of judgments and restored "the long-held
equitable requirement that a party may not sleep on its rights." The court made no finding with respect to the
propriety of Gorham filing an independent action in equity to challenge the
void judgment.
Finally,
the court found that Gorham's request for dismissal under Code of Civil
Procedure section 583.210 was untimely because it was not brought within six
months.
Gorham
timely appealed from the court's final statement of decision and order denying
his motions.
DISCUSSION
On appeal,
Gorham contends the trial court abused its discretion when it failed to set
aside his 1998 default judgment for paternity and child support after correctly
finding that the judgment was void.
Gorham essentially raises the same arguments as he raised below,
claiming the court lacked personal jurisdiction over him in this case because
he was never served with the summons and complaint and the default judgment was
entered purely on a false return of service, which constituted extrinsic fraud
for which the court had authority to set aside at any time by motion or an independent action in equity. We agree the court abused its discretion in
denying Gorham's motions to vacate the 1998 void judgment and to dismiss this
action.
Standard of Review
Courts
generally refer to jurisdiction over the parties and subject matter in any
action as "fundamental
jurisdiction," and where this is lacking there is an entire absence of
power to hear or determine the case. (
of Sunnyvale
(2007) 155 Cal.App.4th 525, 538 (Thompson
Pacific).) Under such circumstances,
"an ensuing judgment is void, and 'thus vulnerable to direct or collateral
attack at any time.' " (People
v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660; italics
added.)
On the
other hand, "[a]n excess of jurisdiction is typically described as the
case ' "where, though the court has jurisdiction over the subject
matter and the parties in the fundamental sense, it has no 'jurisdiction' (or
power) to act except in a particular manner, or to give certain kinds of
relief, or to act without the occurrence of certain procedural
prerequisites." '
[Citations.]" (
"Speaking generally, any acts which exceed the defined power of a
court in any instance, whether that power be defined by constitutional
provision, express statutory declaration, or rules developed by the courts and
followed under the doctrine of stare decisis, are in excess of jurisdiction, in
so far as that term is used to indicate that those acts may be restrained by
prohibition or annulled on certiorari."
(Abelleira v. District Court of
Appeal (1941) 17 Cal.2d 280, 291; italics omitted.) In contrast with judgments lacking
fundamental jurisdiction, judgments or orders in excess of jurisdiction are
valid unless attacked. (
at p. 537.)
Although
courts have often also distinguished between a judgment void on its face, i.e.,
when the defects appear without going outside the record or judgment roll,
versus a judgment shown by extrinsic
evidence to be invalid for lack of jurisdiction, the latter is still a void
judgment with all the same attributes of a judgment void on its face. (Los
Angeles v. Morgan (1951) 105 Cal.App.2d 726, 732-733 (Morgan).) "Whether the
want of jurisdiction appears on the face of the judgment or is shown by
evidence aliunde, in either case the
judgment is for all purposes a nullity -- past, present and future. [Citation.]
. . . '. . . All acts performed
under it and all claims flowing out of it are void . . . . No action upon the part of the plaintiff, no
inaction upon the part of the defendant, no resulting equity in the hands of
third persons, no power residing in any legislative or other department of the
government, can invest it with any of the elements of power or of
vitality.' [Citation.]" (Id.
at p. 732.) In such cases, the judgment
or order is wholly void, although described as "voidable" because
court action is required to determine the voidness as a matter of law, and is
distinguishable from those judgments merely voidable due to being in excess of
the court's jurisdiction. (
Consequently, once proof is made that the judgment is void based on
extrinsic evidence, the judgment is said to be equally ineffective and
unenforceable as if the judgment were void on its face because it violates
constitutional due process. (See
485 U.S. 80, 84 (Peralta).)
Consistent
with these general principles, "[a] judgment is void for lack of
jurisdiction of the person where there is no proper service on or appearance by
a party to the proceedings." (
Cal.App.4th 1010, 1016.) Knowledge by a
defendant of an action will not satisfy the requirement of adequate service of
a summons and complaint. (
Cal.App.4th 1145, 1152-1153.) Because
the "total absence of notice in any form cannot comport with the
requirement of due process" (In re
B.G. (1974) 11 Cal.3d 679, 689), it has been said that a judgment of a
court lacking such personal jurisdiction is a violation of due process (
Marin (1990) 495 U.S. 604, 609), and that "a default judgment entered
against a defendant who was not served with a summons in the manner prescribed
by statute [to establish personal jurisdiction] is void." (Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)
Specifically,
in any action "to enforce a duty of support or some other personal
obligation growing out of the parent-child relationship, personal jurisdiction
over [a] defendant [is] essential."
(Hartford v. Superior Court
(1956) 47 Cal.2d 447, 454.) In other words, even though
a statutory scheme may empower the trial court to determine paternity and child
support in a family law matter, such power only extends "to parties over
whom it has personal jurisdiction."
(Clark, supra, 168 Cal.App.4th
at pp. 843-844, citing In
re Marriage of Jensen (2003) 114 Cal.App.4th 587, 592-594
[court must have personal jurisdiction over parties in marital case in order to
adjudicate personal rights and obligations].)
As noted
earlier, this case initially was filed under former statutory provisions
empowering the district attorney's office of each county to establish, modify
and enforce child support orders to recoup public assistance costs from the
absent parents of minor children receiving public aid
" ' "in the name of the county on behalf of the child,
children or caretaker parent." ' " (Jager
v. County of Alameda (1992) 8 Cal.App.4th 294, 297.) The summary procedures set forth under the
former provisions as well as the new Family Code sections, if properly
followed, do not violate the fundamental requirement of due process because
they provide a defendant parent with an opportunity to be heard "before a
judgment is entered." (
only be entered in such a case if a proof of service is filed "evidencing
that more than 30 days have passed since the simplified summons and complaint,
proposed judgment, . . . and all notices required by this division
replacing Welf. & Inst. Code, § 11355 (Stats 1999, ch. 478, § 1
as amended by Stats. 1999, ch. 480, § 17; Stats. 1999, ch. 652,
§ 17.5; Stats. 2000, ch. 808, § 85; italics added.) Thus, where the defendant parent establishes
that he or she has not been served as mandated by the statutory scheme, no
personal jurisdiction by the court will have been obtained and the resulting
judgment will be void as violating fundamental due process. (See Peralta,
supra, 485 U.S. at p. 84.)
To be continue as part II……
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[1] Before
2000, a special unit of the district attorney's office of each county in California
was charged with the duty to enforce child support orders in the interests of
the public. (See
San Mateo
transferred to a new county department of child support services. (Fam. Code, § 17304, subd. (a).) Our reference in this opinion to DCSS, the
current responsible entity, also refers as well to the former Family Support
Division of the San Diego County District Attorney's Office.
