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California Family Law Report


Case of the Month Archive

August 2016

Address verification by U.S. Postal Service trumps Dad’s testimony . . .


In affirmance, Third District holds that trial court did not err in denying Dad’s motion to vacate 1989 default child support judgment or to grant reconsideration where he failed to show that service was based on fraud, commissioner was biased, or alleged new evidence was not available at the time of his original reconsideration motion


Yolo County Dept. of Child Support Servs. v. Myers

May 13, 2016; ordered published June 10, 2016)

California Court of Appeal 3 Civil C075671, 248 Cal.App.4 th 42, __ Cal.Rptr.3d __, 2016 FA 1744, per Renner, J (Nicholson, Acting PJ and Robie, J, concurring). Yolo County: Umanzio, Commissioner, affirmed. For appellant: Deputy Attorney General Catherine Ongiri, (916) 324-5165. For respondent: pro per CFLP §S.


In May 1989, the Yolo County Dept. of Child Support Services (DCSS) filed a complaint to establish Charles Myers’s paternity of a minor child and for current and retroactive child support and medical insurance coverage. After the U.S. Postal Service verified Myers’s address as 3335 Vienna Ave., Carmichael, CA, DCSS sent a process server to that address to personally serve him with the summons and complaint. On May 7, 1989, after two prior attempts at service were unsuccessful, the process server effected substitute service on Myers’s father. Three days later, Myers met with an attorney to discuss the validity of that service.


When Myers failed to answer the complaint, DCSS obtained a default judgment against him that was filed and signed on September 7, 1989. When DCSS sought a child support mod in 1993, Myers appeared in pro per at the hearing. On November 9, 1998, he filed a motion to modify custody, visitation, and child support and again appeared in pro per at the hearing.


On August 21, 2013, Myers filed a request to vacate the default judgment and all related orders, for the return of all money collected since September 7, 1989, for compensatory damages, and for a letter to clear the debt from his credit report. He also sought the return of all fees and costs. This matter was heard by Commissioner Umanzio, who noted that Myers had agreed to his hearing the matter as judge pro tem. At the hearing, Myers testified that the service of summons and complaint was not proper because he had not been living at the address where it was served and claimed that the judge who had signed the judgment, Judge Stevens, should have disqualified himself. In an order after hearing, Commissioner Umanzio found that Myers’s statements regarding his actual address were “ ‘self-serving’ ” and not supported by actual evidence. The commissioner also rejected the notion that Judge Stevens should have disqualified himself, but noted that even if he should have, the judge could still sign the default judgment under CCP §170.4. Besides, the lower court said, Myers had been aware of the issue when he received his copy of the default judgment, but waited many years to raise it. Accordingly, the trial court denied Myers’s requests.


On October 2, 2013, Myers filed a motion for reconsideration of the order denying his motion to vacate, along with exhibits to support the claim that he was living in Fair Oaks when the summons and complaint were served at the Carmichael address. The trial court denied his motion as failing to specify any new or different facts, noting that at a prior hearing on a child support modification, Myers had stated that he was served with the original complaint.


On November 12, 2013, Myers filed a motion to disqualify Commissioner Umanzio, who had denied his reconsideration motion, claiming that the commissioner had shown bias and prejudice toward him and had violated the judicial ethics code, various trial rules, and provisions of the state and federal constitutions, all in unspecified ways. Myers also sought injunctive relief to restrain DCSS from collecting any more child support from him, cease all garnishments, and stop calling him. The commissioner denied the motion, stating that he had no bias or prejudice toward Myers, and disputed all the other allegations. The commissioner also denied injunctive relief.


Renewing his claims of faulty service and bias, Myers appealed, but the Third District affirmed.


Good for Gorham . . .
The justices noted that rather than relying on any specific statutory provision, Myers relied solely on County of San Diego v. Gorham (2010) 186 Cal.App.4 th 1215, 113 Cal.Rptr.3d 147, 2010 CFLR 11571, 2010 FA 1449, in which the court held that a false proof of service denied a child support obligor due process and made a default child support judgment void even though the time period for a set aside had run. In Gorham , the obligor had been in jail on the date that the process server attested that he had personally served him with the summons and complaint at a residential address. That, the court said, constituted extrinsic fraud, and although the statutory time period for setting aside a judgment based on fraud under Fam C §3691 had run, it could be set aside on equitable grounds. Those justices reasoned that refusing to set aside a judgment based on a false return of service would be a violation of fundamental due process and would “ ‘compound the miscarriage of justice’ ” created by that violation. Thus, that panel held, “ ‘under the unique facts of this case’ ” the trial court should have found the judgment void and dismissed the action.


But not for Myers . . .
The panel here, however, found no such unique facts present in this case. The justices noted that the process server had effected substitute service on Myers’s father at an address confirmed by the U.S. Postal Service. And, per CCP §415.20, a summons and complaint may be left at a person’s usual mailing address with a competent member of the household who is over age 18, where personal service cannot be had with due diligence. The panel recognized that Myers had testified that he did not live at that address, but they found that his testimony had been “contradicted by the verification of his address by the United States Postal Service.” Therefore, they concluded, the trial court’s findings re service were supported by substantial evidence. Besides, they noted, the evidence showed that Myers had actual notice of the proceeding and had failed to show extrinsic fraud.


Odds and ends . . .
The justices gave short shrift to Myers’s contention that Judge Stevens should have recused himself, and thus, the default judgment was void because that judge had signed it. The panel explained that even if the judge should have recused himself, it would not be a basis for setting aside the judgment because, per CCP §170.4(a)(3), his disqualification would not have prevented him from hearing and determining a purely default matter. “[I]n purely default matters the identity of the judge is irrelevant,” the panel stated. As for Myers’s reconsideration motion, the justices agreed with the lower court that the “new or different facts” that he presented regarding his address were available to him at the time of his original motion and Myers presented no evidence to explain why he hadn’t produced them then.


Writs and wrongs . . .
Finally, the justices considered and rejected Myers’s contentions of bias and the need to disqualify Commissioner Umanzio. The commissioner’s rulings on his motions to disqualify, the panel found, were not appealable orders, and can only be challenged by writ. Besides, they concluded, the mere fact that Myers did not agree with those rulings was not grounds for disqualifying the commissioner. Summing up, the panel affirmed the challenged orders.





The most important part of this opinion is the panel’s discussion of Gorham and their limitation of its holding to its unique facts. They make it clear that successfully proving extrinsic fraud in connection with service of process is not an easy thing and takes more than what Myers presented here. It’s worth remembering that when making substitute service under CCP §415.20, the server must not only determine that the person with whom the summons and complaint are left meets the statutory requirements, he or she must also inform the recipient of the contents thereof, and follow up by mailing a copy of those documents to the person to be served at the place where the server left the summons and complaint.



In American Express Centurion Bank v. Zara (2011) 199 Cal.App.4 th 383, 131 Cal.Rptr.3d 99, 2011 CFLR 11950, 2011 FA 1507, the court held that a trial court does not acquire jurisdiction over a defendant who is not properly served with the summons and complaint, even if the defendant received actual notice of the lawsuit. There, Robert Zara moved to quash the summons and complaint on the grounds of improper service. In his supporting declaration, Zara stated that on the proof of service filed with the court, the process server claimed that at 6:43 p.m. on January 30, he had served the documents on Zara, described as an Asian man with black hair. In fact, Zara was not Asian and did not have black hair. The trial court denied Zara’s motion, finding that he had actual notice because he had seen the documents on his doorstep on January 31. The Sixth District, however, reversed and remanded. The justices reasoned that CCP §415.10 requires that a process server personally deliver a copy of the summons and complaint to the person to be served and CCP §684.220(b) requires that an affidavit of proof of service must contain the time, place, and manner of service, along with facts showing compliance with the statutory requirements, including the name of the person served. Here, the justices found, the proof of service was clearly untruthful because the description of the person served did not match Zara. Thus, the trial court had not obtained jurisdiction over him.



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