Opinion
E067698
06-13-2018
COUNTY OF SAN BERNARDINO CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. MARK ANTHONY DAVIS, Defendant and Appellant; COURTNEY R. JOHNSON, Real Party in Interest and Respondent.
Mark Anthony Davis, Defendant and Appellant in pro. per. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General, and Linda M. Gonzalez and Monique S. Seguy, Deputy Attorneys General, for Plaintiff and Respondent. No appearance for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SDASS151666) OPINION APPEAL from the Superior Court of San Bernardino County. Teresa M. Bennett, Judge. Affirmed. Mark Anthony Davis, Defendant and Appellant in pro. per. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General, and Linda M. Gonzalez and Monique S. Seguy, Deputy Attorneys General, for Plaintiff and Respondent. No appearance for Real Party in Interest and Respondent.
In 2005, the County of San Bernardino Department of Child Support Services (Department) obtained a default judgment for child support against Mark Anthony Davis. In 2016, Davis filed a motion to rescind his voluntary declaration of paternity and to set aside the judgment. The trial court denied the motion.
Davis appeals, contending:
1. The trial court lacked jurisdiction because Davis was never properly served.
2. The Department lacks standing to prosecute this action.
We reject these contentions. In addition, Davis states that he never signed the voluntary declaration of paternity; however, we conclude that he has not properly raised this or any other appellate contention not listed above. Hence, we will affirm.
I
PROCEDURAL BACKGROUND
In 2005, the Department filed this child support action against Davis. The complaint alleged that paternity had been established by a voluntary declaration.
According to the proof of service filed by the Department, Davis was served on October 1, 2005, by substituted service on his mother at his home.
Davis did not respond to the complaint. Accordingly, on November 29, 2005, the trial court entered a default judgment against him (see Fam. Code, § 17430), ordering him to pay $237 a month in child support.
On May 5, 2014, on the Department's motion, the trial court reduced child support to zero because Davis was then incarcerated.
On August 17, 2016, Davis filed a motion. The motion itself is not in the appellate record. According to the trial court, however, Davis argued in the motion that (1) he signed the voluntary declaration of paternity under duress, and (2) he was not properly served.
In December 16, 2016, a commissioner held a hearing on the motion. At the hearing, Davis claimed that, rather than signing the voluntary declaration of paternity under duress, he never signed it at all. Counsel for the Department represented to the court that Davis had made payments pursuant to the judgment for 10 years. Davis admitted noticing in 2005 that checks to him were being garnished. At the end of the hearing, the commissioner denied the motion as untimely. She further ruled, "On the issue of defective service, the motion is denied as untimely and no facts have been alleged."
Presumably an approximation, as a judgment requiring payments had been in effect for only eight and a half years.
Davis had not consented to have the matter heard by a commissioner, and he filed a timely objection to the commissioner's ruling. (See Fam. Code, § 4251, subd. (c).)
On January 10, 2017, Davis filed a document entitled, "Invalid Proof of Service." (Capitalization altered.) It included a declaration by his mother, stating that the summons and complaint had never been served on her and that Davis had never lived at her address.
On January 31, 2017, the trial court held a de novo hearing on the motion. At the end of the hearing, it confirmed the commissioner's findings and orders. It further ruled that "because of the inconsistencies of the declaration and testimony of the defendant, [defendant's] motion is denied." (Capitalization altered.)
II
PRELIMINARY STATEMENT
Davis's brief is rambling and disorganized. Much of it has been cribbed, without attribution, from a "sovereign citizen" website. (<https://freedom-school.com/>, as of June 7, 2018.) The brief sets forth numerous legal propositions, but in most instances, it does not explain how they apply in this case. Thus, it is hard to tell exactly what Davis is really arguing.
We resolve this difficulty by applying California Rules of Court, rule 8.204(a)(1)(B). This rule provides that an appellate brief must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority . . . ." We may ignore any attempt to raise a claim of error that does not comply with this rule. (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1504, fn. 2.)
"'When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].' [Citations.]" (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)
Davis has listed headings in his table of contents; however, they do not actually appear in the text of his argument. Nevertheless, we treat these as headings for purposes of California Rules of Court, rule 8.204(a)(1)(B), and we discuss the arguments that are stated in these headings. If and to the extent that Davis intended to raise any other arguments, we deem them forfeited.
III
LACK OF SERVICE
Davis contends that the trial court lacked jurisdiction because he was never properly served.
He has forfeited this contention by failing to cite any portion of the record tending to show that he was, in fact, not served. A brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) "Where factual assertions are not supported by adequate record references, we may deem them forfeited. [Citations.]" (Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 554, fn. 1.)
Separately and alternatively, he also forfeited this contention by failing to provide us with an adequate record. "Appealed judgments and orders are presumed correct, and error must be affirmatively shown. [Citation.] Consequently, appellant has the burden of providing an adequate record. [Citations.] Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. [Citation.]" (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935.) We do not have the original motion. We also do not have a reporter's transcript of the de novo hearing. For all we know, Davis conceded that he was served or otherwise undermined his own contention.
Finally — and, again, separately and alternatively — even on this limited record, we must sustain the trial court's ruling.
In a child support enforcement action, the summons, complaint, and certain other papers must be served on the defendant in accordance with the Code of Civil Procedure. (Fam. Code, § 17430, subd. (a); Yolo County Department of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 49; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1227.)
"'[A] judgment is void for lack of jurisdiction of the person where there is no proper service of process on or appearance by a party to the proceedings.' [Citation.] Knowledge by a defendant of an action will not satisfy the requirement of adequate service of a summons and complaint. [Citations.] Because the 'total absence of notice in any form cannot comport with the requirement of due process' [citation], it has been said that a judgment of a court lacking such personal jurisdiction is a violation of due process [citation], and that 'a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute [to establish personal jurisdiction] is void.' [Citation.]" (County of San Diego v. Gorham, supra, 186 Cal.App.4th at pp. 1226-1227.)
"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. [Citation.]" (County of San Diego v. Gorham, supra, 186 Cal.App.4th at p. 1230.) "In deciding whether the trial court abused its discretion, '[w]e are . . . bound . . . by the substantial evidence rule. [Citations.] . . . The judgment of the trial court is presumed correct; all intendments and presumptions are indulged to support the judgment; conflicts in the declarations must be resolved in favor of the prevailing party, and the trial court's resolution of any factual disputes arising from the evidence is conclusive. [Citations.]' [Citation.]" (Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1403.)
Here, there was substantial evidence that Davis was properly served — namely, the process server's declaration. "The filing of a proof of service that shows on its face compliance with the statutory requirements creates a rebuttable presumption of proper service. [Citations.]" (Yolo County Department of Child Support Services v. Myers, supra, 248 Cal.App.4th at p. 48, fn. 2.) Davis attempted to rebut it with his mother's declaration. Significantly, however, he admitted that he knew in 2005 that checks to him were being garnished. Moreover, according to counsel for the Department, he made child support payments for nearly 10 years; he did not dispute this. "' . . . [A]ttorneys are officers of the court, and "'when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.'"' [Citation.]" (People v. Mroczko (1983) 35 Cal.3d 86, 112, disapproved on unrelated grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The trial court could reason that a person who was not served would have objected sooner. Thus, it could properly find that the process server's declaration was true.
Davis has not argued that the proof of service was defective on its face.
IV
THE DEPARTMENT'S STANDING
Davis also argues that the Department has no standing. As best we can tell, he asserts four reasons for this; we discuss these one by one.
1. Davis was never properly served.
We have already discussed and rejected this contention in part III, ante.
2. Davis is an "unincorporated human being and not a legal person."
This is a non-existent legal principle hallucinated by the sovereign citizen movement. (See generally Evans, The "Flesh and Blood" Defense (2012) 53 Wm. & Mary L.Rev. 1361.) Davis does not cite any legal authority supporting it; there is none.
3. The Department "does not have a sworn affidavit of complaint from a real party in interest."
Once again, Davis does not cite any legal authority supporting this argument. Such an affidavit is not required. The Department could properly file this action without one. Moreover, unlike in an ordinary civil action, it could properly obtain a default judgment without presenting any evidence. (Fam. Code, § 17430, subd. (a).)
4. The Department is a legal entity rather than a natural person.
Davis seems to think the Department is a corporation. It is not. The Department is an agency of the county, and its actions are actions of the county. (People v. Parmar (2001) 86 Cal.App.4th 781, 799.) A county has standing to sue and be sued. (Gov. Code, § 23004, subd. (a).) In addition, a local child support agency is statutorily authorized to bring an action for child support. (Fam. Code, §§ 17304, 17400, subds. (a), (b)(1), (h), 17404, subds. (a), (e)(4).)
Of course, even if it were, a corporation has standing to sue and be sued. (Friedman, Cal. Practice Guide: Corporations (The Rutter Group 2018) ¶ 2:37.1, p. 2-20.) --------
V
THE VOLUNTARY DECLARATION OF PATERNITY
In the trial court, Davis claimed that he did not sign (or did not voluntarily sign) the declaration of paternity. In this appeal, however, he has not raised this contention under a separate heading, as required. He merely asserts a couple of times, in passing, that he did not sign the declaration. Hence, we deem it forfeited. (See part II, ante.)
Also, once again, he has not provided us with an adequate record, because he has not given us his motion or a reporter's transcript of the de novo hearing. (See part III, ante.)
Even if we were to reach this contention, we would reject it.
The trial court ruled that Davis's motion regarding the declaration was untimely. (See Fam. Code, §§ 7575, subd. (c)(1) [action to set aside voluntary declaration of paternity may be filed "on any of the grounds described in, and within the time limits specified in, Section 473 of the Code of Civil Procedure," running from date of initial order for child support], 7612, subd. (e) [petition to set aside voluntary declaration of paternity may be filed within two years after execution].) He never argues that it was actually timely.
And finally, the trial court could properly find that he did sign the voluntary declaration of paternity. Apparently, he stated in his motion that he signed the declaration under duress; in open court, however, he denied signing it at all. The trial court could reasonably conclude that he totally lacked credibility.
VI
DISPOSITION
The order appealed from is affirmed. The Department is awarded costs on appeal against Davis. (Cal. Rules of Court, rule 8.278(a)(1); Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 51.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.