Filed 1/6/15 R.N. v. J.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
R.N.,
Appellant, E056992
v. (Super.Ct.No. FAMVS1001256)
J.C., OPINION
Respondent.
APPEAL from the Superior Court of San Bernardino County. Khymberli
Apaloo, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
R.N., in pro. per., for Appellant.
Law Offices of Gabriel Castellanos and Gabriel Castellanos for Respondent.
R.N. (Father) and J.C. (Mother) are married and share a daughter, T.N. Mother
and Father separated. Father resides in California. Mother and T.N. reside in Iowa. In
California, Father filed a petition to establish a parental relationship with T.N. Mother
moved to (1) quash the service of summons, (2) dismiss the entire action due to (a) lack
1 of personal jurisdiction, and (b) California being an inconvenient forum; Mother
requested the venue of the case be changed to Iowa.
The California family court quashed the service of summons in the parentage
action because Father served the documents on Mother’s attorney, who was not
authorized to accept service. (Code Civ. Proc, § 416.90.) Mother filed a family law
case in Iowa concerning child custody, visitation, and support. The family court, in
California, concluded Father had submitted to personal jurisdiction in Iowa by being
personally served. The California family court found California was an inconvenient
forum for the custody matters and relinquished jurisdiction to Iowa.
Father raises six issues on appeal. First, Father contends Mother filed a response
in the portion of the case concerning nullifying their marriage, so the family court
retained jurisdiction over the parentage matter. Second, Father asserts Mother failed to
fully substantiate her Iowa residency. Third, Father contends the family court was
biased in favor of Mother and therefore abused its discretion. Fourth, Father asserts he
is entitled to relief because Mother moved T.N. to Iowa without Father’s consent. Fifth,
Father contends Mother forfeited jurisdiction in Iowa by perjuring herself in the Iowa
courts. Sixth, Father contends the family court erred by finding Mother’s attorney could
not accept service of process. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Mother and Father began living together in December 2006, in Riverside,
California. Mother and Father married in May 2007, in Las Vegas, Nevada. T.N. was
born in August 2007, in Riverside. In October 2007, Mother, Father, and T.N. moved
2 from Riverside to Las Vegas. In May 2009, Mother and Father separated. Father
returned to California, while Mother and T.N. remained in Las Vegas.
On May 4, 2010, Father filed a petition, in California, to annul the marriage.
Mother asserted she never received notice of the action. On May 24, Father filed an
order to show cause regarding adding T.N. to the petition along with issues of child
custody and visitation. The court’s file did not contain a proof of service for the order
to show cause. In June 2010, Mother informed Father she and T.N. were moving to
Iowa, from Las Vegas, and gave Father their new address in Iowa.
The family court held a hearing in the matter, in August 2010. Mother did not
appear. The court ordered Father to have sole legal and physical custody of T.N. with
reasonable supervised visits between Mother and T.N. The court ordered Father to file
a petition establishing paternity. In May 2011, T.N. underwent surgery to have tubes
placed in her ears. T.N. suffers from hearing problems, vision problems, and speech
delays. T.N.’s doctors are located in Iowa.
On September 26, 2011, Mother responded to the nullity of marriage action. In
the response, Mother requested the August 2010 custody orders be dismissed or stayed.
Also on September 26, in California, Mother filed a declaration under the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA), which reflected her
address in Iowa. On September 29, Mother moved the California family court to vacate
the August 2010 child custody order due to lack of jurisdiction.
The following day, on September 30, Father filed a Petition to Establish a
Parental Relationship (parentage petition), in California. Father did not personally serve
3 Mother with the petition. In October, Father filed a Proof of Service by Mail reflecting
the summons and petition were mailed to Mother’s attorney. Mother did not authorize
her attorney to accept service. On November 23, in an Iowa court, Mother filed a
Petition to Establish Paternity, Custody and Support.
On December 7, the California family court vacated the August 2010 custody
orders. At that December 7 hearing, Father was personally served with the Iowa
petition. In January 2012, Mother moved to quash the California service of summons,
related to Father’s parentage petition—the petition that had been served on Mother’s
attorney. In May, the California family court granted the motion to quash.
When granting the motion, the family court explained to Father, “Had it been just
another O.S.C. or a motion or a set of discovery that you were requesting from [Mother]
in the nullity action, there would have been no problem with you serving her attorney by
mail, but when it comes to proof of service of a summons and a petition for another
action . . . [u]nder 415.30 of the Code of Civil Procedure, you can’t just serve a petition
by mail in order to start a new action, which is what you did. You served a petition and
a summons by mail.” The court explained that Mother’s attorney was not authorized to
accept service on Mother’s behalf. The court told Father that Mother’s attorney never
signed a Notice of Acknowledgement and Receipt, which meant service of the petition
was not effective. The court said it was “quash[ing] the UPA action,” referring to
Father’s petition.
The court explained that Mother had filed a petition in an Iowa court, and the
Iowa court had personal jurisdiction over Father, since Father was personally served
4 with the Iowa documents. The court found Mother had informed Father of her Iowa
address in June 2010. The Iowa address appeared in an e-mail, a verified complaint,
and Mother’s response to the nullity action. Thus, the court found Iowa had been T.N.’s
home state since November 2011, if not longer. The court found California was not a
convenient forum for the custody and visitation matter, and relinquished jurisdiction to
Iowa.
Father asked if the court was also relinquishing jurisdiction for the nullity action.
The court clarified that it could grant the nullity, but “the custody issues presented by
the nullity” would be heard in Iowa. The court explained that Father did not include
T.N. as part of the nullity action; Father “said there were no minor children” on the
nullity paperwork.
In June, Father filed a motion for reconsideration. As part of the motion, Father
faulted the family court for not making a record about the conversation the court had
with the judge in Iowa. At the hearing on the motion for reconsideration, the family
court summarized its conversation with the Iowa judge. The court said it spoke to the
Iowa judge (Judge Blink) for approximately 20 minutes. Judge Blink confirmed Mother
had filed a case in Iowa, and Iowa had stayed the proceedings, pending the outcome of
the California hearing. Judge Blink believed Iowa was the proper venue for the custody
proceedings, because T.N. “had been living in Iowa for quite some time.” The family
court informed Father than a court reporter transcribed the conversation, so Father could
order a transcript. The family court also said it had provided a summary of the
conversation at the hearing on the motion, so the court felt it had not erred.
5 Father asked the court to clarify the basis for granting Mother’s motion to quash.
The court explained Father had filed a nullity petition, which may not have been
properly served, but Mother responded to it. Therefore, the court had jurisdiction over
Mother for the nullity proceedings. However, in the nullity proceedings, Father claimed
there were no children. Mother claimed there was a child, so Mother “put the child at
issue in the nullity.” Father then filed another petition, using the same case number as
the nullity proceeding. The petition was for establishing a parental relationship. Father
served that petition by mail, but it needed to be personally served. Since Father did not
properly serve the petition, the court quashed it.
The court continued, explaining that it “left [the] nullity [action] in place” but
found California was not the correct venue for the custody and visitation issue. The
court could grant an annulment, but it could not handle the custody and visitation issues.
Father informed the court that the marriage “was nothing but lies,” and “there are
accusations of multiple individuals being the possible parent of [T.N.]” Father told the
court Mother needed to prove she met the requirements for being a resident of Iowa.
Father said, “If she proves everything, if she proves her residency and she does
everything, everything is documented, then obviously I have no choice but to say fine,
she substantiated her claims, and I have no choice but to move on . . . . All I am trying
to do is get answers.”
The family court explained that it reviewed Father’s court file and found Father
“got a court order about the custody visitation only to have it set aside. [Mother’s
attorney] came in and said, hey, we haven’t been properly served with this, and I have a
6 motion that is going to be set on calendar to have the whole UPA [(Uniform Parentage
Act)] action quashed, and he did. [The other commissioner] set it aside.” The court
explained that Mother’s UCCJEA declaration reflected she had been living in Iowa
from 2010 to the present. The court noted Mother had also sent Father an e-mail with
her Iowa address. Mother’s declaration, which included her Iowa address, was filed in
September 2011, so the court found Mother had been living in Iowa “for at least a year.”
The court explained that Father failed to provide new facts or law to support a motion
for reconsideration. The court denied Father’s motion for reconsideration.
DISCUSSION
A. JURISDICTION
1. CONTENTION
Father contends the family court erred by declining to exercise jurisdiction over
the child custody issues.
2. LAW
We review the family court’s jurisdictional finding for substantial evidence.
(Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 954.) “‘On review for
substantial evidence, we examine the evidence in the light most favorable to the
prevailing party and give that party the benefit of every reasonable inference.
[Citation.] We accept all evidence favorable to the prevailing party as true and discard
contrary evidence. [Citation.]’ [Citation.] ‘We do not reweigh the evidence or
reconsider credibility determinations. [Citation.]’ [Citation.]” (In re Marriage of
Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 34.)
7 “The UCCJEA applies to interstate child custody disputes, and it ‘provides the
exclusive method of determining subject matter jurisdiction in custody cases in
California.’ [Citations.]” (In re Baby Boy M. (2006) 141 Cal.App.4th 588, 598, fn.
omitted; In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376.) The UCCJEA’s
jurisdictional requirements are codified in Family Code section 3421,1 which provides:
“[A] court of this state has jurisdiction to make an initial child custody determination
only if any of the following are true: [¶] (1) This state is the home state of the child on
the date of the commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent continues to live in this state.
“(2) A court of another state does not have jurisdiction under paragraph (1), or a
court of the home state of the child has declined to exercise jurisdiction on the grounds
that this state is the more appropriate forum under section 3427 or 3428, and both of the
following are true: [¶] (A) The child and the child’s parents, or the child and at least
one parent or a person acting as a parent, have a significant connection with this state
other than mere physical presence. [¶] (B) Substantial evidence is available in this state
concerning the child’s care, protection, training, and personal relationships.
“(3) All courts having jurisdiction under paragraph (1) or (2) have declined to
exercise jurisdiction on the ground that a court of this state is the more appropriate
forum to determine the custody of the child under Section 3427 or 3428. [¶] (4) No
1 All subsequent statutory references will be to the Family Code unless otherwise indicated.
8 court of any other state would have jurisdiction under the criteria specified in paragraph
(1), (2), or (3).
“(b) Subdivision (a) is the exclusive jurisdictional basis for making a child
custody determination by a court of this state. [¶] (c) Physical presence of, or personal
jurisdiction over, a party or a child is not necessary or sufficient to make a child custody
determination.”
3. HOME STATE JURISDICTION
We begin with the “home state” basis for jurisdiction. The UCCJEA gives
preference to “home state” jurisdiction. (Zenide v. Superior Court (1994) 22
Cal.App.4th 1287, 1294 (Zenide).) “‘Home state’ means the state in which a child lived
with a parent or a person acting as a parent for at least six consecutive months
immediately before the commencement of a child custody proceeding. In the case of a
child less than six months of age, the term means the state in which the child lived from
birth with any of the persons mentioned. A period of temporary absence of any of the
mentioned persons is part of the period.” (§ 3402, subd. (g).)
T.N. was born in California, and lived here for approximately six weeks before
moving to Nevada with Mother and Father. T.N. has not resided in California since she
was six weeks old. T.N. left California in 2007. The nullity proceedings were filed in
May 2010. Father’s parentage petition was filed in September 2011. Mother’s Iowa
Paternity, Custody and Support Petition was filed in November 2011. Thus, T.N. had
not resided in California for the two-year period prior to the nullity action and for the
three-year period prior to the parentage actions. As a result, California was not T.N.’s
9 home state for purposes of these proceedings because T.N. did not reside in California
for at least six consecutive months immediately before the commencement of a child
custody proceeding. Therefore, the trial court was correct in not finding home state
jurisdiction in California.
As set forth ante, the UCCJEA prefers custody disputes be litigated in the child’s
home state. In a declaration, Mother declared that, in June 2010, she informed Father
she and T.N. were moving to Iowa. The record includes an e-mail from Mother to
Father dated June 19, 2010, in which Mother gives Father her and T.N.’s address in
Iowa. In September 2011, Mother filed a declaration under the UCCJEA, which
reflected her address in Iowa. The custody orders from the nullity proceeding were
vacated, and service of Father’s parentage petition was improper as discussed post.
Thus, Mother’s action in Iowa was the only action wherein the case was active and the
opposing party had been properly served.2
The evidence reflects T.N. moved to Iowa in June 2010. Mother’s Iowa
custody/parentage petition was filed in November 2011. Therefore, Iowa was T.N.’s
home state for purposes of the active petition because T.N. had been residing in Iowa
for at least six consecutive months immediately before the commencement of the active
Iowa child custody proceeding. Accordingly, substantial evidence supports the family
2Personal jurisdiction over a party is not necessary to make a child custody determination. (Iowa Code Ann. § 598B.201(3).) However, notice must be given. (Iowa Code Ann. § 598.205(1).)
10 court’s finding that Iowa was T.N.’s home state for purposes of jurisdiction in the
custody dispute.
4. OTHER STATE
While preference is given to home state jurisdiction, which would be Iowa’s
jurisdiction, we will address the other methods of obtaining jurisdiction for the sake of
thoroughness. As set forth ante, jurisdiction may also be obtained if another state does
not have jurisdiction. (§ 3421, subd. (a)(2).) As set forth ante, Iowa has home state
jurisdiction. Therefore, jurisdiction may not be obtained in California due to another
state lacking jurisdiction.
Jurisdiction may also be obtained if the child’s home state declines to exercise
jurisdiction on the grounds that another state is the more appropriate forum. (§ 3421,
subd. (a)(2).) The record reflects that the Iowa judge “thought that Iowa was the proper
place” for the custody dispute to be heard, and the Iowa judge confirmed Mother had a
pending custody case in the Iowa court system. Thus, California could not obtain
jurisdiction due to another state declining jurisdiction, since Iowa was willing to
exercise jurisdiction.
5. ALL COURTS
Another method of obtaining jurisdiction is for all courts having jurisdiction to
decline to exercise jurisdiction. (§ 3421, subd. (a)(3).) As set forth ante, Iowa is
willing to exercise jurisdiction. Therefore, California cannot obtain jurisdiction in this
manner.
11 A final means of obtaining jurisdiction occurs where no court in another state
would have jurisdiction. (§ 3421, subd. (a)(4).) As set forth ante, Iowa has home state
jurisdiction, which is the preferred means of obtaining jurisdiction. Accordingly,
California cannot obtain jurisdiction in this manner because Iowa has jurisdiction.
6. CONCLUSION
In sum, the family court did not err. Substantial evidence supports the finding
that Iowa has home state jurisdiction. Therefore, California lacks jurisdiction in this
matter.
B SUBSTANTIAL EVIDENCE
Father asserts Mother failed to fully substantiate her Iowa residency. This
contention repeats the jurisdiction issue set forth ante. As explained ante, the family
court could find Mother’s Iowa residency substantiated by: (1) Mother’s September
2011 UCCJEA declaration reflecting her Iowa address; (2) Mother’s January 2012
declaration in support of her motion to quash reflecting she and T.N. moved to Iowa in
or around June 2010; and (3) Mother’s June 2010 e-mail to Father, providing her
address in Iowa. Accordingly, the family court did not err because there is credible
evidence supporting its finding.
Father’s argument is somewhat unclear, but it appears he is asserting Mother
must provide an Iowa driver’s license, voter registration, or some other type of official
Iowa document to establish her Iowa residency. In support of this argument, Father
cites the Iowa statute adopting the UCCJEA rule that home state jurisdiction is
preferred. (Iowa Code Ann. § 598B.201(1)(a).) Jurisdiction under the UCCJEA is
12 about where the child has resided. (See St. Clair v. Faulkner (1981) 305 N.W.2d 441,
448 (Iowa).) In regard to proof, Iowa law requires a party to provide, under oath, the
child’s address(es) for the prior five years. (Iowa Code Ann. § 598B.209(1).) Father
does not explain why Mother’s UCCJEA declaration is insufficient proof for the child’s
residence. As a result, we find Father’s argument to be unpersuasive.
Father contends the family court should have considered T.N.’s significant
connections to California, since her residency in Iowa was not substantiated. (§ 3421,
subd. (a)(2)(A).) As explained ante, substantial evidence supports the finding that Iowa
has home state jurisdiction. (§ 3421, subd. (a)(1).) Accordingly, we do not need to
address T.N.’s contacts with California, since home state jurisdiction is the preferred
means of establishing jurisdiction. (Zenide, supra, 22 Cal.App.4th at p. 1294.)
C. BIAS
Father contends the family court was biased in favor of Mother, and therefore
abused its discretion. Father asserts the family court argued on behalf of Mother by
raising arguments that Mother failed to raise.
It is unclear if Father’s argument is based on state law or federal due process law.
Under federal law, actual judicial bias need not be proven. Rather, it is sufficient to
establish “the probability of bias on the part of [the] judge is so great as to become
‘“constitutionally intolerable.”’ [Citation.] The standard is an objective one.” (People
v. Freeman (2010) 47 Cal.4th 993, 1001.) Under state law, the test is also objective; we
consider whether a “reasonable person could doubt whether the trial was fair and
impartial.” (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 997.)
13 At the hearing on Father’s motion for reconsideration, Father argued that the
family court’s reasoning was based upon arguments Mother did not make. The family
court explained, “I have to decide based on the law. I am not going to make a decision I
think is contrary to the law.” Essentially, Father asserted the court had to select from
Father’s arguments or Mother’s arguments, but the court explained there was a third
option of following the law, if neither parties’ argument were correct.
The family court did not show bias in favor of Mother by following the law. The
family court was not bound by the parties’ arguments. To the extent the family court
rejected both parties’ arguments and followed the law, the court was within its power to
do so. (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 33 [a court’s decision
“cannot offend fixed legal principles”]; In re Marriage of Varner (1997) 55 Cal.App.4th
128, 138 [Fourth Dist, Div. Two] [a court’s decision must be guided “by fixed legal
principles”].) As set forth ante, the court’s jurisdiction decision was supported by the
evidence, and thus within the law.
Our review of the record reflects no bias in favor of Mother. The family court
listened to Father and responded to his arguments. For example, the court explained to
Father that Mother’s attorney (1) did not accept service of the paternity paperwork, and
(2) informed Father she could not accept service. When Father argued that Mother’s
attorney never informed him of being unable to accept service, the family court
explained that the court had a letter addressed to Father reflecting the attorney could not
accept service. The court then explained why the evidence showed Iowa was the best
forum for the custody proceedings based upon the home state jurisdiction rule. There is
14 nothing reflecting the court’s decision was constitutionally intolerable, or that the court
was unfair and partial to Mother. The court’s decision was in line with the law and
evidence. In sum, the court was not biased in favor of Mother.
In his Appellant’s Opening Brief, Father gives an example of the court’s alleged
bias by explaining that Father argued jurisdiction should be obtained via a long arm
statute, due to Mother and T.N. having contacts with California. Father asserts Mother
never refuted his reliance on International Shoe Company v. State of Washington (1945)
326 U.S. 310. Therefore, Father argues, when the court did not follow International
Shoe, the court showed bias. Father’s argument is not persuasive because the applicable
exclusive law for jurisdiction in custody cases is section 3421, which the court
followed—the applicable law is not International Shoe. The court was not showing
bias, it was following the law.
D. CONSENT
Father contends the family court erred because Father and the courts did not
consent to Mother moving T.N. to Iowa. The record reflects Mother moved T.N. to
Iowa in June 2010. The nullity proceedings, which did not include T.N., were filed in
May 2010, and the amendment to add T.N. to the nullity proceedings was not properly
served on Mother.3 Thus, at the time Mother moved T.N. to Iowa there was not a
pending case related to T.N., and Mother and Father were still married. Additionally,
Mother informed Father, via e-mail, of T.N.’s new Iowa address, thus the child was not
3 We infer Mother was improperly served based upon (1) the trial court vacating the custody orders, and (2) the motion to vacate being based upon improper service.
15 concealed from Father. Accordingly, it does not appear there was anything preventing
Mother from moving T.N. to Iowa. At the time Mother moved, it appears she and
Father were still husband and wife and no custody orders were in place, as a result,
Mother could freely move with T.N. to Iowa. (See People v. Howard (1984) 36 Cal.3d
852, 856-857 [each spouse has full parental rights to custody of the child; a custody
order must be in place for there to be custodial interference]; Sarah B. v. Floyd B.
(2008) 159 Cal.App.4th 938, 944, fn. 5 [in the absence of a court order, parents share
custody of a child, and one “‘parent does not commit child stealing by taking exclusive
possession of the child’”].)
E. PERJURY
Father contends Mother submitted to California’s jurisdiction by availing herself
of the California courts and perjuring herself in the Iowa courts, thus forfeiting
jurisdiction in Iowa.
As set forth ante, section 3421, subdivision (a), provides the “exclusive
jurisdictional basis for making a child custody determination.” (§ 3421, subd. (b).)
Within the statutory options for obtaining jurisdiction, the “home state” option is the
preferred means of establishing jurisdiction. (Zenide, supra, 22 Cal.App.4th at p. 1294.)
Therefore, it is not particularly relevant whether or not Mother availed herself of the
California courts. The primary concern is T.N. and her home state for the six months
prior to the custody case being filed. (§§ 3421, subd (a)(1), 3402, subd. (g).)
Accordingly, we are not persuaded by Father’s argument concerning Mother availing
16 herself of the California courts, since it fails to take into account the exclusive statutory
means of establishing jurisdiction in child custody cases. (§ 3421.)
Next, in regard to Mother allegedly perjuring herself in the Iowa courts, the
appellate record in this case contains no information about perjury in the Iowa case, e.g.
documents from Iowa. Thus, even if we, being a California court, had the authority to
consider Iowa’s jurisdictional authority, we do not have a record to examine. (In re
Marriage of Goosmann (1994) 26 Cal.App.4th 838, 841, fn. 1 [it is appellant’s burden
to provide an adequate record on appeal]; Cal. Rules of Court, rule 8.120.) In sum, we
find Father’s argument to be unpersuasive.
F. SERVICE OF PROCESS
Father contends the family court erred by granting the motion to quash because
Mother’s attorney had accepted service of documents in the nullity proceeding, so she
could accept service of the summons for Father’s parentage petition.
A ruling quashing service is reviewed for substantial evidence if there is
conflicting evidence, or reviewed independently if the evidence is not conflicting.
(Paneno v. Centres for Academic Programmes Abroad, Ltd. (2004) 118 Cal.App.4th
1447, 1454.) In the instant case, Father is essentially raising a legal question: whether
accepting service of the nullity documents sufficed to authorize Mother’s attorney to
accept service of the parentage petition summons—the evidence is not in conflict.
Accordingly, we apply the independent standard of review, since the evidence is not
conflicting.
17 A summons must be issued for an annulment case, and a summons must be
issued for a parentage petition. (Cal. Rules of Court, rule 5.50(a)(1)(A)&(B).) Code of
Civil Procedure section 415.40 provides, “A summons may be served on a person
outside this state in any manner provided by this article or by sending a copy of the
summons and of the complaint to the person to be served by first-class mail, postage
prepaid, requiring a return receipt. Service of a summons by this form of mail is
deemed complete on the 10th day after such mailing.”
Code of Civil Procedure section 416.90 provides, “A summons may be served on
a person not otherwise specified in this article by delivering a copy of the summons and
of the complaint to such person or to a person authorized by him to receive service of
process.”
Service of process statutes are liberally construed. (Summers v. McClanahan
(2006) 140 Cal.App.4th 403, 413 (Summers).) The liberal construction allows service
to be effectuated and jurisdiction to be upheld “if actual notice has been received by the
defendant,” even if the statutes requirements were not strictly satisfied. (Id. at pp. 410-
411.)
Thus, under the liberal construction, service can be effective where an attorney,
on behalf of a client, is served if it is “‘highly probable’ that [the] defendant[] would
receive actual notice of the service of process on [the attorney] upon their behalf.”
(Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012,
1018.) In making this determination, the “essential factor” is the attorney’s relationship
with the client, and whether it is “sufficiently close and enduring to make it reasonably
18 certain that [the defendant] would be apprised of the service on [the attorney] upon [the
defendant’s] behalf.” (Ibid.)
However, “no California appellate court has gone so far as to uphold a service of
process solely on the ground the defendant received actual notice when there has been a
complete failure to comply with the statutory requirements for service.” (Summers,
supra, 140 Cal.App.4th at p. 414.) In other words, there must be some statutory
compliance when serving the summons. “‘[T]he burden is on the plaintiff to prove the
existence of jurisdiction by proving, inter alia, the facts requisite to an effective
service.’” (Summers, supra, 140 Cal.App.4th at p. 413.)
Father contends serving Mother’s attorney was sufficient to apprise Mother of
the parentage action because Mother’s attorney accepted service of documents in the
nullity proceeding. Father offered no evidence to show Mother authorized her attorney
to accept service of process as her agent in all matters. His evidence only reflects
Mother’s attorney was authorized to accept service of process in the nullity action.
Mother provided a letter from her attorney to Father reflecting the attorney was not
authorized to accept service of process for matters beyond the annulment. Accordingly,
the record reflects Father did not comply with the statutory requirements because he
failed to serve a person authorized to receive service of process. (Code Civ. Proc.,
§ 416.90.)
The question remains whether service could be upheld on the theory of a close
connection between Mother and her attorney, making it “highly probable” that Mother
would receive actual notice of the service of process. There is no evidence in the record
19 to support the existence of a close relationship between Mother and her attorney. There
is no evidence Mother was in frequent communication with her attorney. The record is
devoid of any evidence of how large the attorney’s office is, how often Mother
contacted her attorney, or how often Mother spoke to other people in the attorney’s
office (assuming there are other people).
The only support Father offers for his argument is that the nullity documents
were also served on Mother’s attorney. Father’s argument appears to be if service of
process, even if totally outside the statutory prescriptions, has somehow resulted in
actual notice to Mother, then any defects in the service should be overlooked. As set
forth ante, no California appellate court has adopted this rationale because doing so
“would constitute a judicial repeal of California’s statutory law governing service of
process and the adoption of only one rule: A summons may be served on anyone,
anywhere, by any means which results in actual notice of the action in time to defend.”
(Summers, supra, 140 Cal.App.4th at p. 415.) Such a rule “would create a standardless
free-for-all in which defendants would bring motions to quash service claiming they
never received actual notice and, in many cases, plaintiffs would be unable to prove
otherwise.” (Ibid.)
Due to the lack of evidence supporting Father’s argument, we conclude Father
failed to meet his burden to show proper service of process. Accordingly, the family
court did not err by granting the motion to quash. Since Mother’s attorney was not
authorized to accept the summons in the parentage proceeding, and the relationship
between Mother and her attorney is unclear, the service was not proper. Therefore, the
20 service was correctly quashed because Mother resided in Iowa and had not been
properly served. (See Code of Civ. Proc., § 418.10, subd. (a)(1) [service may be
quashed due to lack of jurisdiction].)
DISPOSITION
The judgment is affirmed. Respondent, J.C., is awarded her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
KING J.