Cnty. of San Diego v. G.S.

COUNTY OF SAN DIEGO,DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. G.S., Defendant and Appellant.

D076378

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

May 6, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. DF254171)

APPEAL from orders of the Superior Court of San Diego County, Pennie K. McLaughlin, Commissioner, and Enrique S. Camarena, Judge. Affirmed.

G.S. in pro. per., for Defendant and Appellant.

Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Linda M. Gonzalez, Gregory D. Brown and Marina L. Soto, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant G.S. appeals among others an order denying his request to set aside a 2015 default judgment and order to pay child support for Z.L. G.S. was served with the summons and complaint for child support, and filed an answer and other documents in response. G.S., however, alleges that he was not properly served with notice of a December 1, 2015 hearing for a judgment establishing parentage and order to pay child support, healthcare, and childcare costs (sometimes, December 1 Judgment and Order). He nonetheless received notice about a month after the December 1 hearing of the December 1 Judgment and Order and was then given a copy of it. However, G.S. did not move to set aside the December 1 Judgment and Order, including under Code of Civil Procedure¹ section 473, subdivision (b), until more than three years after it issued.

As we explain, because the trial court had fundamental jurisdiction over G.S. as a result of his appearance in the action, and because the court was not without statutory power to enter the December 1 Judgment and Order because it was merely voidable and not void, we conclude the December 1 Judgment and Order is valid as a result of G.S.'s failure to timely move to set it aside. As we also explain, we conclude his other arguments lack merit. Affirmed.

BACKGROUND

A. Summons, Complaint and Answer

Plaintiff County of San Diego Department of Child Support Services (Department) filed a complaint against G.S. to establish his parental obligations to Z.L. The summons and complaint were personally served on G.S. on June 24, 2015. In response, G.S. filed an answer and other documents objecting to his obligation to pay child support.

B. The December 1 Judgment and Order

On October 1, 2015, the Department mailed G.S. notice of a hearing set for December 1, 2015, for a judgment establishing parentage and order to pay child support, healthcare, and childcare costs. The notice was not returned to the Department as undeliverable.

G.S. did not appear at the December 1, 2015 hearing, where Commissioner Pennie K. McLaughlin presided.² Mother testified that G.S. was the father of Z.L. At the conclusion of the hearing, the court entered a default judgment, finding that G.S. was Z.L.'s father and ordering G.S. to pay child support in the guideline amount of $1,356 per month, along with other costs to be paid for healthcare and childcare (i.e., the December 1 Judgment and Order). The court also issued a wage and earnings assignment order to collect the amounts due.

A representative of the Department called G.S. in January 2016,³ discussed the December 1 Judgment and Order with him and sent him a copy. G.S. neither moved to set aside the December 1 Judgment and Order nor did he appeal it.

C. The 2016 Order

The Department issued an Income Withholding Order/Notice of Support (IWO) to G.S.'s employer in June 2016. G.S. in response filed a request for temporary emergency orders and for a stay of the IWO, on the grounds that there was no lawful order because the IWO was signed by a child support representative, not by a judge; the Department did not complywith federal process for establishment of paternity; and he did not voluntarily agree to provide child support.

G.S. was present at the hearing on his motion. G.S. objected to having the commissioner act as a temporary judge. The record shows the commissioner heard testimony and argument from G.S. At the conclusion of the hearing, the commissioner recommended that the request to stay the IWO be denied and that all orders previously issued—including the December 1 Judgment and Order—remain in full force and effect. A judge reviewed the commissioner's recommendations and on August 28, 2016, ratified the previously issued December 1 Judgment and Order and the wage and earnings assignment. G.S. did not appeal this order.

D. The 2017 Order

About a year later, G.S. filed a demurrer and request to dismiss the December 1 Judgment and Order. G.S. argued that his due process rights had been violated because of improper service of the 2015 motion, and that he did not voluntarily agree to pay child support, which he believed federal law required. On the latter point, he argued that "child support is strictly voluntary under the federal statute 42 U.S.C. § 466 [subd.] (C) . . . ."

G.S. appeared by telephone at the hearing on October 3, 2017, and agreed to permit Commissioner McLaughlin to act as a temporary judge. The commissioner overruled the demurrer and denied the request to dismiss. She ruled the demurrer and motion were untimely because the subject order and judgment had been filed on December 1, 2015. The court also addressed, and denied, other substantive issues that G.S. had raised in his motion.

G.S. appealed the 2017 order by sending a letter to this court on February 26, 2018.⁴ We dismissed the appeal, case No. D073631, after G.S. failed to timely pay the filing fee.

E. The 2019 Order - Subject of this Appeal

G.S. in 2019 filed yet another motion to set aside the December 1 Judgment and Order. Like his previous motions, G.S. claimed that the commissioner had no authority to enter the December 1 Judgment and Order because G.S. had not received notice of the December 1, 2015 hearing, and because he had not stipulated to allow a commissioner to hear that motion; that the Judgment and Order was invalid because it was fraudulently procured; that the IWO sent to his employer was invalid because it was signed by a child support representative and not by a judge; that there was no written proof that he was the father of Z.L.; and that he had no obligation to pay child support without his voluntary agreement to do so.

In response to the motion, a Department representative reviewed the 2015 proof of service and found the motion had been mailed to G.S.'s correct street address, but the apartment number had been omitted.

Commissioner McLaughlin conducted the proceedings. G.S. objected to her acting as a temporary judge. Commissioner McLaughlin recommended that the motion be denied and that all previous orders be affirmed and continued. A judge on September 27, 2019, reviewed and ratified the commissioner's recommendations.

G.S. raises multiple issues on appeal,⁵ including the December 1 Judgment and Order is void; the wage assignment order was invalid because it was signed by a child services representative and not by a judge; and he has no obligation to pay child support because he never agreed to do so.

DISCUSSION

IStandard of Review

A. Review of Judgment

The findings of the court are presumed to be correct, except for issues of law which we review de novo. (In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 483.) The appellant has the burden of affirmatively proving error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) G.S. has not provided transcripts or settled statements of the motion hearings, so we presume that all matters that would have authorized the court's orders were presented to the court. (Ibid.)

B. Motion to Set Aside Default Judgment

We review the court's denial of a motion 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." (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230 (Gorham); Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1035.) We do not reverse an order unless amiscarriage of justice resulted. (See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122.)

IIClaim/Issue Preclusion Do Not Apply

The term " 'res judicata' " is often used "as an umbrella term encompassing both claim preclusion and issue preclusion, which [is] described as two separate 'aspects' of an overarching doctrine. [Citations.] Claim preclusion, the ' " 'primary aspect' " ' of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties. [Citation.] Issue preclusion, the ' " 'secondary aspect' " ' historically called collateral estoppel, describes the bar on relitigating issues that were argued and decided in the first suit." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823-824.)

" ' "The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding." ' " (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken).)

The Department contends the court properly denied the 2019 motion because G.S. in that motion presented issues that already had been fully litigated on the merits. (See Boeken, supra, 48 Cal.4th at p. 797; In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318 (Williamson) [final orders cannot be relitigated]; In...