Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County Super. Ct. No. 97P006380, Lon F. Hurwitz, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Appeal treated as a petition for a writ of mandate, and petition granted.
Edmund G. Brown, Jr., Attorney General, Karin S. Schwartz, Acting Senior Assistant Attorney General, Paul Reynaga and Linda M. Gonzalez, Deputy Attorneys General for Plaintiff and Appellant.
Terence W. Roberts for Defendant and Respondent.
OPINION
BEDSWORTH, J.
The County of Orange, Department of Child Support Services (DCSS) appeals from an order for genetic testing, made after Scott A. Stevens moved to set aside a declaration of paternity. DCSS argues the motion was untimely, and Stevens moves to dismiss the appeal for lack of an appealable order. We treat the appeal as a petition for a writ of mandate to compel the superior court to vacate its order, and grant the petition.
In 1998, Stevens and Patricia N. executed a declaration of paternity that acknowledged they were the parents of S. In January 2000, DCSS served Stevens with a “complaint regarding parental obligations.” It requested an order for the support of S. and C., a prior child of Stevens and Patricia N. Stevens never responded. A “judgment regarding parental obligations” was entered by default in May 2000.
This action began in 1998, when DCSS successfully sued Stevens to establish he was the father of C. In September 1999, DCSS served a “1st supplemental complaint” that alleged Stevens was the father of S. and requested child support. The January 2000 complaint in issue on this appeal, labeled “1st supplemental, 1st amended complaint,” dropped the allegation that Stevens was the father of S. and sought only a child support order.
In August 2006, Stevens moved to set aside the declaration of paternity. He declared he had separated from Patricia N. before S. was conceived, she did not tell him another man was the child’s father, and “[d]ue to her withholding this information . . . I was under the delusion that S. was my child and I signed the paternity declaration at the hospital the day after her birth.” Stevens said he had “a relationship” with S. when she was two to three years old, when he visited both children, but now Patricia N. “does not want me to have contact with either child at all anymore” and “does not want me involved in her life.”
The trial judge ordered genetic testing on October 30, 2006. He reasoned that he had such authority under Family Code section 7575, subdivision (b) and Family Code section 7676, subdivision (a). After DCSS filed a notice of appeal, the trial judge refused to stay the testing order pending appeal. DCSS applied to this court for a writ of supersedeas, and we issued an order staying proceedings in the trial court pending further order of this court.
All subsequent statutory references are to the Family Code unless otherwise indicated.
I
Stevens’ motion to dismiss argues that genetic testing is preliminary to a decision on the set aside motion, so it is not an appealable order. But that is an issue we need not decide. In the interest of justice and judicial economy, we would exercise our discretion to treat the appeal as a petition for a writ of mandate, even if he were right. (See, e.g., County of Orange v. Superior Court (2007) 155 Cal.App.4th 1253, 1257.)
II
DCSS argues sections 7575 and 7676 each limit the time within which a motion may be brought to set aside a declaration or judgment of paternity, and Steven’s motion was untimely under both statutes. It is correct.
Section 7575 deals with setting aside a voluntary declaration of paternity. Subdivision (b)(1) provides that if the court finds “the results of the genetic tests . . . are that the man who signed the voluntary declaration is not the father of the child, the court may set aside the voluntary declaration of paternity” unless it determines that not doing so would be in the best interests of the child. Subdivision (b)(3) provides that a motion for genetic tests under this section “may be filed not later than two years from the date of the child’s birth,” or in certain family law actions not applicable here.
Section 7646 addresses setting aside a judgment of paternity. Subdivision (a) is as follows: “Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated upon a motion by . . . the previously established father of the child . . . if genetic testing indicates that the previously established father of a child is not the biological father of the child. The motion shall be brought within one of the following time periods: [¶] . . . [¶] (2) Within a two-year period commencing with the date of the child’s birth if paternity was established by a voluntary declaration of paternity. . . . [¶] (3) In the case of any previously established father who is the legal father as a result of a default judgment as of the effective date of this section, within a two-year period commencing with the enactment of this section.” Section 7646 was enacted in September 2004 (Stats. 2004, ch. 849 (A.B. 252), § 4), and it became effective on January 1, 2005. Section 7646 also applies to a declaration of paternity, since “judgment” is defined to include a voluntary declaration of paternity. (§ 7645, subd. (b).)
Stevens was not entitled to genetic testing. The 2006 motion to set aside a 1998 declaration of paternity came way too late. A motion to set aside a voluntary declaration of paternity must be brought within two years of the child’s birth under Section 7575, subdivision (b)(3). If viewed as a motion to set aside a judgment of paternity under section 7646, subdivision (a), the time limit is again two years from the date of the child’s birth where a voluntary declaration established paternity. (§ 7646, subd. (a)(2).)
There can be no doubt these time limits apply. Subsequent to the testing order in this case, we decided another appeal from a genetic test order by this same trial judge, involving the limitations period in ordering testing. (County of Orange v. Superior Court, supra, 155 Cal.App.4th 1253.) We explained the limitations periods in both sections 7575 and 7676 mean one has two years from the child’s birth to either move to set aside a voluntary declaration of paternity, or to move to set aside a judgment of paternity where it is based on a voluntary declaration of paternity. (Id. at pp. 1259-1260, 1262.) Nothing in this case calls for a different result.
DCSS moved this court to take judicial notice of certain legislative history of sections 7575 and 7646, in support of its argument that the order for genetic testing is contrary to the intent of those statutes. No opposition was filed. Since both statutes are clear in barring the set aside motion in this case, we have no occasion to consider the legislative history of either. The motion for judicial notice filed April 30, 2007, is denied.
Stevens argues the motion was timely under section 7646, subdivision (a)(3) because he was found to be the father of S. in the 2000 default judgment. He is mistaken on the facts.
Section 7646, subdivision (a)(3) provides that one who was established as a legal father by a default judgment prior to the effective date of the statute may bring a set aside motion within two years after the statute was enacted. The statute was enacted in September 2004, effective January 1, 2005. The motion was filed in August 2006.
What Stevens overlooks is the fact that he is S.’s legal father by virtue of his paternity declaration, not the 2000 default judgment that ordered child support. So section 7646, subdivision (a)(3) has no bearing in this case.
Since Stevens’ motion to set aside the declaration of paternity was untimely, the petition is granted. Let a peremptory writ of mandate issue directing the superior court to vacate its October 30, 2006 order for genetic testing. The writ of supersedeas shall be dissolved upon issuance of the remittitur.
WE CONCUR: SILLS, P. J., FYBEL, J.