APPEAL from an order after judgment of the Superior Court of San Diego County, Patti C. Ratekin, Commissioner. Reversed with directions. (Super. Ct. No. DF084337).
The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PUBLICATION
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)*fn1 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 ...