This was recently discussed by the court of appeal in Yolo County Department of Child Support Services vs. Myers.
In May 1989, the Yolo County Department of Child Support Services filed a complaint to establish Charles Myers’ paternity of a minor child for current and retroactive child support and medical insurance coverage. The US Postal Service verified Myers address as 3335 Vienna Ave. Carmichael, CA. DCSS then sent a process server to that address to personally serve him with the summons and complaint.
After two attempts at service, the process servicer effectuated substitute service on Myers’s father. Three days later, Myers met with an attorney to discuss its validity. When Myers failed to answer the complaint, DCSS obtained a default judgment against him that was filed and signed on September 7, 1989. In 1993, DCSS sought a child support modification and Mr. Myers appeared in pro per at the hearing.
Later on November 9, 1998, he filed a motion to modify custody and child support and again appeared in pro per at the hearing. On August 21, 2013, Myers requested to vacate the default judgment and related orders for the return of all money collected since September 1989 and compensatory damages, and for a letter declaring the debt off the credit report. The trial court denied his motion and a later motion for reconsideration. Mr. Myers appealed, but the 3rd district affirmed the denial.
Mr. Myers was relying solely on County of San Diego vs. Goram (2010) 186 Cal @ 4th 1215, in which the court held a false proof of service denying a child support obligator due process and made a default child support judgment void even though the time period for a set aside had run. In Goram, the obligor had been in jail on the date of the process service, but the servicer attested he had personally served him with a summons and complaint at a residential address. In Goram, the justices reasoned that refusing to set aside a judgment based on a false return of service would be a violation of fundamental due process and would compound the miscarriage of justice created by that violation.
Thus that panel held, under the unique facts of this case, the trial court should have found the judgment void and dismiss the action. However, the 3rd District panel on the Myers’ case found no such unique facts present. The justices noted that the process server had effectuated substitute service on Myers’s father at an address confirmed by the United States Postal Service. Under Code of Civil Procedure 415.20, a summons and complaint may be left at a person’s usual mailing address with a competent member of the household who is over age 18 where personal service could not be had with due diligence.
The most important part of this opinion is the panel’s discussion of Goram and their limitation to holding to its unique facts. They make it clear that successfully proving extrinsic fraud in connection with the service or process is not an easy thing, and it takes more than what Myers presented here. It is worth remembering that when making substitute service under CCP 415.20, a server must not only be present to serve the person whom the summons and complaint are left, but later follow up with mail service as well.
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