>SAN DIEGO > v. GORHAM























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)

Story continued from part I…..





Although a judgment or order that is invalid or void on its
face for lack of personal jurisdiction may be directly or collaterally attacked
at any time, California cases have generally precluded collateral attack where
the invalidity of the judgment or order, as in this case, does not appear on
its face even though the effect of the voidness, as
noted above, is the same. (See >People v. Davis (1904) 143 Cal. 673,
675; Morgan, supra, 105 Cal.App.2d at
pp. 730-733.) If the invalidity does not
appear on its face, the judgment or order may be attacked either in an
independent equitable action without time limits (Groves v. Peterson (2002) 100 Cal.App.4th 659, 670, fn. 5), or by
motion in the action in which the judgment or order was entered, usually made
under a statute providing for such relief within certain time limits or a
reasonable time.^[1] "A motion to vacate a void judgment is a
direct attack. [Citations.] '[O]n direct attack, lack of jurisdiction may
be shown by extrinsic evidence, i.e., evidence outside the judgment
roll.' " ( >Strathvale Holdings. v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)

Moreover, even where relief is no
longer available under statutory
provisions, a trial court generally retains the inherent power to vacate a
default judgment or order on equitable grounds where a party establishes that
the judgment or order was void for lack of due process ( >Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 488) or resulted from
extrinsic fraud or mistake. ( >In re Marriage of Melton (1994) 28
Cal.App.4th 931, 937.) Extrinsic fraud
occurs when a party is deprived of the opportunity to present a claim or
defense to the court as a result of being kept in ignorance or in some other
manner being fraudulently prevented by the opposing party from fully
participating in the proceeding. ( >Home Ins. Co. v. Zurich Ins. Co. (2002)
96 Cal.App.4th 17, 26-27.)
"Extrinsic mistake is found when [among other things] . . . a
mistake led a court to do what it never intended . . . ." (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-472.)

In addition to providing proof that
a judgment or order is void, a false return of summons may constitute both
extrinsic fraud and mistake. (See >Munoz v. Lopez (1969) 275 Cal.App.2d
178, 181 (Munoz).) When a judgment or order is obtained based on
a false return of service, the court has the inherent power to set it aside ( >In re Marriage of Smith (1982) 135 Cal.App.3d
543, 555), and a motion brought to do so may be made on such ground even though
the statutory period has run. ( >Munoz, supra, 275 Cal.App.2d at pp.
182-183 [an equitable attack to set aside a judgment or order "for lack of
jurisdiction of the cause where that jurisdiction is in turn dependent on
personal service on the defendant who at the later date seeks to question that
service" is not precluded by any set time].)

As already noted above, where it is
shown that there has been a complete failure of service of process upon a
defendant, he generally has no duty to take affirmative action to preserve his
right to challenge the judgment or order even if he later obtains actual
knowledge of it because "[w]hat is initially void is ever void and life
may not be breathed into it by lapse of time." (Morgan,
supra, 105 Cal.App.2d at p. 731.)
Consequently under such circumstances, "neither laches
nor the ordinary statutes of limitation may be invoked as a defense"
against an action or proceeding to vacate such a judgment or order. (Id.
at p. 732.) And, where evidence is
admitted without objection that shows the existence of the invalidity of a
judgment or order valid on its face, "it is the duty of the court to
declare the judgment or order void."
(Thompson v. Cook (1942) 20
Cal.2d 564, 569 (Cook).)

Nonetheless, a court sitting in
equity in such situation may "refuse to exercise its jurisdiction in a
proper case by declining to grant affirmative relief" ( >Morgan, supra, 105 Cal.App.2d at p.
731), such as where "(1) The party seeking relief, after having had notice
of the judgment, manifested an intention to treat the judgment as valid; and
(2) Granting the relief would impair another person's substantial interest of
reliance on the judgment." (Rest.2d
Judgments, § 66.) Because of the
strong public policy in favor of the finality of judgments, equitable relief
from a default judgment or order, is available only in exceptional
circumstances. ( >Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982 ( >Rappleyea).)

We review the court's denial of a
motion for equitable relief to vacate a default judgment or order for an abuse
of discretion, determining whether that decision exceeded the bounds of reason
in light of the circumstances before the court.
(Rappleyea >, supra, 8 Cal.4th at p. 981.) In doing so, we determine whether the trial
court's factual findings are supported by substantial evidence ( >In re Marriage of De Guige
(2002) 97 Cal.App.4th 1353, 1360) and independently review its statutory
interpretations and legal conclusions. ( >Holmes v. Jones (2000) 83 Cal.App.4th
882, 888; PJNR, Inc. v. Department of
Real Estate (1991) 230 Cal.App.3d 1176, 1183.)

Analysis

In applying the above principles
here, we conclude this is a case of exceptional circumstances where equitable
relief is warranted. Gorham did not seek
relief from the default judgment pursuant to any statutory scheme, but rather,
directly attacked it for lack of personal jurisdiction due to fraudulent
service, similar to the situation in Morgan,
supra, 105 Cal.App.2d 726. Based on
extrinsic evidence, which the DCSS agreed could be considered, the trial court
found Gorham had rebutted the facts stated in the proof of service filed under
penalty of perjury that he had been personally served with the complaint and
summons in this case. Because Gorham was
incarcerated at the time he was said to have been served, the court found the
proof of service was false and consequently the default judgment was void. These findings are fully supported by the
record and law and are not challenged on appeal.

In simple terms, the legal
consequences of these findings is that the trial court never acquired personal
jurisdiction over Gorham in this action for the purposes of establishing
paternity and child support. As the above
cases have shown, the filing of a false proof of service based on perjury by
the process server to acquire personal jurisdiction over a party is different
than other forms of fraudulent acts that may lead to a judgment in the action. (Cook,
supra, 20 Cal.2d at p. 569; Munoz,
supra, 275 Cal.App.2d at pp. 182-183.)
Because Gorham was never served with the complaint and summons, or other
documents and notices as required by the statutory procedures used by the DCSS
to commence this action against him, the trial court never obtained personal
jurisdiction over him (Morgan, supra,
105 Cal.App.2d at pp. 732-733), and the resulting default judgment was, and is,
therefore void, not merely voidable, as violating
fundamental due process.

Although the trial court correctly
declared the default judgment void, it declined to vacate the judgment and
dismiss the complaint and summons although they have never been served on
Gorham because it construed the law as requiring his motion be brought within
certain statutory times, particularly the time limits in Family Code section
3691,^[2] or made within a reasonable time to confer it
with jurisdiction to act on his motion.
However, as already mentioned above, because Gorham established through
extrinsic evidence that the default judgment was void for want of personal
jurisdiction over him, it had the same effect as if it had been void on its
face and the court had the inherent power to set it aside even though any
statutory periods had run. ( >Cook, supra, 20 Cal.2d at p. 569; >Munoz, supra, 275 Cal.App.2d at pp.
182-183; Morgan, supra, 105
Cal.App.2d at p. 732.)

The court disagreed with this
conclusion because it found no evidence in the record that the false proof of
service had been willfully or intentionally filed by the process server. However, in light of this record, we cannot
accept the court's finding as supported by the evidence. The record shows the parties and court were
well aware of problems with the validity of proofs of service filed by Lopez in
DCSS cases and the facts Lopez had declared under penalty of perjury that he
had served Gorham at an address where Gorham proved he had not lived for almost
a year and had made the false declaration at a time Gorham was in custody in
jail. That Lopez then filed the proof of
service, which was based on his own perjury, in the absence of evidence showing
any mistake or excuse in doing so, constitutes evidence of an intentional false
act that was used to obtain fundamental jurisdiction over Gorham.

Moreover, contrary to the trial
court's determination, we decline to interpret Family Code section 3691 as
preempting a trial court's traditional or inherent equitable power to set aside
a child support order or judgment like the one in this case that concerns both
paternity and child support obtained by a local DCSS that is entered against a
party over whom the court has not acquired personal jurisdiction because no
notice was given as required under the pertinent statute. The legislative history regarding Family Code
section 3691 reveals it was enacted as part of the Child Support Enforcement
Fairness Act of 2000 (Fairness Act) with the purpose of expanding, not
limiting, avenues of relief from child support orders obtained by default
judgments for obligors who have not received notice of the order or who have
been mistakenly identified as an obligor, to prevent the accumulated amount of
arrearages, which discourage timely compliance with child support orders,
particularly for low wage earners.
(Stats. 1999, ch. 653, § 1.) The Legislature specifically declared
"[t]he efficient and fair enforcement of child support orders is essential
to ensuring compliance with those orders and respect for the administration of
justice." (Ibid.) Thus to construe
Family Code section 3691 as foreclosing a party from seeking equity where the
party's "jurisdiction" in a paternity/support case filed by a local
DCSS has been obtained by a false proof of service, which essentially
perpetrates a fraud on the court would, we believe, be unfair, against the
above intent of the Legislature, and a violation of fundamental due process.

In addition, subdivision (c) of
section 3690 of the Family Code, enacted as part of the Fairness Act, provides
that nothing in that article, which includes Family Code section 3691,
"shall limit or modify the provisions of [Family Code] Section 17432 or
17433," also enacted as part of the Fairness Act, which outline additional
grounds and other time limits for setting aside defaults entered in actions
filed by a local DCSS under Family Code sections 17400, 17402, or 17404. Although Family Code section 17432, which is
relevant to this case, only provides for relief from the child support order
portion of the default judgment if certain time limits are met, such section
also places a duty on the DCSS to determine within three months of receiving
the first collection for any child support order based on presumed income under
those Family Code sections to "check all appropriate sources for income
information, and if income information exists, the local child support agency >shall make a determination whether the
order qualifies for set aside under this section. If the order qualifies for set aside, the
local child support agency shall
bring a motion for relief under this section." (Fam. Code,
§ 17432, subd. (g); italics added.)

The DCSS acknowledged in its
opposition to Gorham's motion below that it had proceeded against him under
Family Code section 17400 et seq. to determine paternity and support because
Crystal's mother was receiving public assistance for the minor child born out
of wedlock and that the default judgment set amounts for child support for
Crystal based on a presumed income for Gorham.
Had the DCSS fulfilled its mandated duty to check into the matter when
it first received a payment from Gorham's attached unemployment wages in July
2002, it would have discovered that Gorham had been sent back to prison that
same month and that there was something very wrong with the proof of service
filed in this case to obtain jurisdiction for the child support order in the
first instance because its records showed that Gorham had also been in custody
from "2/1/98-10/31/98." The
DCSS would have then been required to file a motion for relief from the default
judgment or to at least modify the child support portion of the judgment. Had it done so, it would have discovered the
false proof of service and the matter could have been timely resolved
consistent with the intent of the Fairness Act.

Clearly, the trial court was
troubled with the fact of Gorham's lengthy periods of incarceration, the false
proof of service, and whether it could sit in equity in this case in light of
Family Code section 3691. Unfortunately,
based on its unsupported finding that the perjury of the proof of service and
its filing were not shown to be intentional, the court proceeded down an
analytical path requiring Gorham to show due diligence within a statutory time
or a reasonable time to respond to a default judgment he never received and in
a case never served on him. As already
discussed, such analysis was unwarranted in this case where fundamental
jurisdiction was obtained through an intentional fraud on the court.

Additionally, we find no evidence in
the record to support the court's finding that Gorham acquiesced to the July
2002 payment collected by the DCSS and thereby "apparently treat[ed] the
[default] judgment as enforceable."
Even accepting that Gorham had actual notice of the default judgment
involving Crystal through his March 2002 meeting at the DCSS office with a case
worker, the fact that his income from unemployment benefits was attached in
July 2002 by the DCSS, which then credited part to this default judgment and
part to another default judgment, does not show a manifestation of an intent on
Gorham's part to treat this judgment as valid.
Rather, because the notes of that meeting show that Gorham was told the
case worker could not discuss this default judgment due to the aid to Crystal
having been "closed" in 2000, that Gorham was advised to talk to a
family law facilitator when he said he was going to challenge the judgment, and
that the DCSS worker only discussed and reached an agreement with Gorham for
the amount of support due under another default judgment involving his son, we
believe Gorham most likely thought the attached payment was for his other
default judgment. Under such
circumstances, although there might be evidence of the DCSS's
intent to treat the judgment as enforceable in this case, we cannot find the
evidence shows Gorham manifested any intent to treat this judgment as valid.

Nor is the court's legal finding
that a request for dismissal under Code of Civil Procedure section 583.210 is
untimely because it was not brought within six months supported by the
law. That section provides a statutory
obligation to return the summons to an issuing court within three years and 60
days after the action was commenced as determined by the date the complaint was
filed. (Code of Civ.
Proc., § 583.210; see Biss v. Bohr
(1995) 40 Cal.App.4th 1246, 1250-1251.)
Because the trial court specifically found that Gorham had never been
served with the summons and complaint filed October 15,
1997,
and that the default judgment had been obtained by a false proof of service,
the dismissal requested was mandatory.
(See Dale v. ITT Life Ins. Corp.
(1989) 207 Cal.App.3d 495, 500-503.)

Although we are mindful of the
strong policy favoring finality of judgments, and the strong public interest
"in making certain that those parents who are able to support their
children do so, thus freeing the government from shouldering that burden"
(Savedra >, supra, 78 Cal.App.4th at p. 1325), we
will not compound the miscarriage of justice in this case created by the lack
of fundamental due process stemming from the false proof of service filed by
the DCSS that essentially deprived Gorham "the opportunity to be heard 'at
a meaningful time and in a meaningful manner.' " (Mathews
v. Eldridge (1976) 424 U.S. 319, 333.)^[3]

In sum, under the unique facts of
this case, we conclude that once the court determined the default judgment was
void as a matter of law based on the lack of personal jurisdiction, it was
required to dismiss this action. By not
doing so, the court abused its discretion.



DISPOSITION

The order denying Gorham's motions
is reversed. On remand, the trial court
is directed to dismiss this action in accordance with this opinion. Each side to bear their own costs on appeal.





HUFFMAN, J.



WE CONCUR:







BENKE, Acting P. J.







NARES, J.









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id=ftn1>

^[1] In
addition to the general statutes that provide a basis for relief from a default
judgment or order against a party in any civil case (i.e., Code Civ. Proc.,
§ 473, subd. (b) [authorizing relief from a judgment
or order taken against a party as a result of his or her "mistake,
inadvertence, surprise, or excusable neglect" on an application for such
relief made within a reasonable time not to exceed six months] and Code Civ. Proc., § 473.5, subd.
(a) [authorizing relief from a void judgment on application for such relief
within a reasonable time not exceeding two years from entry of the default
judgment]), various Family Code statutes specifically provide a basis for
possible relief from such default judgment or order entered against a party in
a family law proceeding. (See Fam. Code, § 2122 [authorizing a court to set aside
certain child support orders stemming from a dissolution proceeding for actual
fraud, perjury, duress, mental incapacity or mistake of law or fact provided
application therefore is made within a specified time period]; Fam. Code, § 3691, subds.
(a), (b) and (c) [authorizing relief from a judgment or order taken against a
party for actual fraud, perjury or lack of notice provided application is made
within a reasonable time, but no later than six months after the party
discovers or reasonably should have discovered the fraud, perjury or lack of
notice of the support order or knowledge that the party's income and assets
were subject to attachment per that order]; Fam.
Code, §§ 7646 and 7647 [authorizing relief from a judgment or order
establishing paternity under certain circumstances and provided application is
made within specified time limits]; Fam. Code,
§ 17432 [authorizing relief from a support judgment or order in local
support agency proceeding that is based on presumed income, where relief is
sought within one year of first collection under such judgment or order]; and Fam. Code, § 17433 [authorizing relief from a support
judgment or order in local agency proceeding when there is proof the party was
mistakenly identified as having the obligation to provide support.])