Always use a trustworthy process server, or else your judgment may be vacated a dozen years later.
In a published case, County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, the Fourth District, Division One, Court of Appeal reversed the order of the family court commissioner denying Defendant Artis Earl Gorham’s request for an equitable set aside of a 1998 default judgment for child support on grounds of lack of personal jurisdiction over him and a fraudulent misrepresentation on the affidavit of service. As a result of the lack of proper service, Mr. Gorham further requested a mandatory dismissal of the action pursuant to Code Civ. Pro. sections 583.210 and 583.250 for lack of service within three years, which the commissioner also denied and which the appellate court reversed, directing the commissioner to dismiss the case.
The original complaint was filed by the Department of Child Support Services on October 15, 1997 and pertained to the parentage of a female child born out of wedlock in 1991. On May 19, 1998, DCSS filed a proof of service of the summons and complaint, signed under penalty of perjury by a registered process service, stated that Mr. Gorham had been served on Imperial Avenue in San Diego on May 8, 1998. No appearance having been made by Mr. Gorham, on July 15, 1988, the trial court entered his default, ordering him to pay child support retroactive to November 1, 1997.
On March 13, 2002, Mr. Gorham appeared at DCSS and met with a caseworker who told him of the default judgment against him which was apart from the judgment he already knew about with regard to his son. As to the judgment against him regarding his son, DCSS and Mr. Gorham stipulated that there would be a zero arrearage for three periods during which he was incarcerated. During one of those periods, Mr. Gorham had been incarcerated, although the process server indicated he had served him on Imperial Avenue in San Diego during the same period.
Mr. Gorham was returned to prison thereafter and released from Kern Valley State Prison on January 22, 2008, and three months later he specially appeared through counsel to file the motions which are the subject of this proceeding. Mr. Gorham conceded he had lived from May to June, 1997, at the address where he was purported to have been served, but that he had not been personally served on May 8th, and that he had never been personally served the summons and complaint within three years of the filing of this lawsuit. To prove his incarceration, he provided copies of the criminal court’s minute order showing his guilty plea and sentencing, as well as six pages of his incarceration history.
DCSS responded that it had served him legitimately by means of obtaining his statutorily valid address for service of process through the DMV pursuant to Vehicle Code section 1808.21. It also argued that the criminal court minutes did not show whether he had posted bail and had been released before his sentencing. It further argued that “even assuming ineffective service of and a void judgment, Family Code section 3691 controlled and 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 hearing was rescheduled so the parties could submit briefs on the issue of jurisdiction.
The commissioner noted she believed the process server had never attempted to serve Mr. Gorham and that the fraudulent service precluded a finding of personal service and jurisdiction. She also took judicial notice of the criminal file to find out whether Mr. Gorham had posted bail. The commissioner then took the matter under submission. On March 11, 2009, the commissioner issued a final statement of decision and order denying Gorham’s motion to set aside the judgment as untimely under Code Civ. Pro. sec. 473.5(a), upon which Mr. Gorham grounded his motion. Further, if brought under equity’s authority, the motion to vacate was not brought within a reasonable time because he had not acted promptly after learning of the default judgment in 2002. Setting it aside would significantly impair the substantial interests of both the county and the child’s mother. She specifically found, however, that Mr. Gorham had rebutted the facts stated in the Proof of Service because he had been incarcerated at the time of alleged service, which rendered void the default judgment. She also found a false proof of service constitutes extrinsic fraud.
Nevertheless, the commissioner found the evidence was insufficient to show that the proof of service, although false, was “intentionally” or “willfully” false. She ruled that any traditional equitable relief had been statutorily preempted regarding support orders by Family Code section 3691(a). That is, his claim should have been brought within six months after he discovered the fraud or reasonably should have discovered it in March, 2002. Or if brought for lack of notice, Family Code section 3691(c)(1) would have required him to bring his motion within six months of obtaining (i) notice of the support order or (ii) notice of the order attaching his income and assets. Finally, she ruled that the request for dismissal under Code Civ. Pro. sec. 583.210 was untimely because it was not brought within six months.
Fundamental Jurisdiction and Set Aside
Jurisdiction over the parties and the subject matter of an action is referred to as “fundamental jurisdiction.” (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007).) Where it is lacking, an ensuing judgment is void and subject to direct or collateral attack at any time. (People v. American Contractors Indemnity Co. (2004).)
On the other hand, an excess of jurisdiction is typically described as the case where, though the court has fundamental jurisdiction, it has no power to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural requirements. ([citation]; Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007).) 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).) In contrast with judgments lacking fundamental jurisdiction, judgments or orders in excess of jurisdiction are valid unless attacked. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007).)
A judgment shown by extrinsic fraud to be invalid for lack of fundamental jurisdiction is wholly void, although described as voidable because the court must take action to determine the voidness. (Los Angeles v. Morgan (1951).) Once proof is made that the judgment is void based on extrinsic evidence, it is said to be equally ineffective and unenforceable as if the judgment were void on its face because it violates constitutional due process. (See Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 84.)
Further, knowledge by the defendant of an action will not satisfy the requirement of adequate service of a summons and complaint. (Waller v. Weston (1899).) The total absence of notice in any form cannot comport with the requirements of due process. (In re B.G. (1974). A default judgment entered against a defendant who was not served with a summons in the matter described by statute [to establish personal jurisdiction] is void. (Dill v. Berquist Construction Co. (1994).) 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 extends only to parties over whom it has personal jurisdiction. (San Mateo County DCSS v. Clark (2008).)
If the invalidity does not appear on the face of the judgment or order, it may be attached either in an independent equitable action without time limits (Groves v. Peterson (2002), or by motion in the action in which the judgment or order was entered, usually under a statute such as Code Civ. Pro. sec. 473(b) or Fam. Code sec. 3691 or Fam. Code sec. 17432, etc., providing such relief within certain time limits or a reasonable time. A motion to vacate a void judgment is a direct attack, and on 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).)
However, after time has run out under a statute, a trial court retains inherent power to vacate a default judgment or order on equitable grounds were a party establishes that the judgment was void for lack of due process. (Ansley v. Superior Court (1986).)
Code Civ. Pro. sec. 583.210 requires the return of summons to the issuing court within three years, 60 days, after the action is commenced as determined by the date the complaint is filed. (The appellate court appears to imply that because no valid return of summons occurred, dismissal is mandatory. (See Dale v. ITT Life Ins. Corp (1989) 207 Cal.App.3d 495, 500-503.))
Defendant proved the judgment was void for lack of personal jurisdiction which requires the Court vacate the default judgment.
Because the trial court specifically found that the defendant had never been served with the Summons and Complaint and that the default judgment had been obtained by a false proof of service executed by the process server, the dismissal requested was mandatory. The court then remanded the case to the trial court with directions to dismiss the action.