Filed 2/25/13 Dept. of Child Support Serv. v. Powell CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                     SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


DEPARTMENT OF CHILD SUPPORT
SERVICES,                                                                      2d Civil No. B238444
                                                                             (Super. Ct. No.BD086977)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.                                                                      ORDER MODIFYING OPINION
                                                                        [NO CHANGE IN JUDGMENT]
BRIAN K. POWELL,

     Defendant and Appellant.

In re Marriage of CHANTAL and                                               (Super. Ct. No. SD019049)
BRIAN K. POWELL.                                                                 (Ventura County)

CHANTAL POWELL,

     Respondent,

v.

BRIAN K. POWELL,

     Appellant;

DEPARTMENT OF CHILD SUPPORT
SERVICES,

     Respondent.
THE COURT:
              It is ordered that the opinion filed herein on February 7, 2013, be modified
as follows:
              On the listing of counsel page, the first name "Richardo" is changed to
"Ricardo," so that the paragraph reads:
              Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Senior
      Assistant Attorney General, Linda M. Gonzalez, Supervising Deputy
      Attorney General, Ricardo Enriquez, Deputy Attorney General, for
      Plaintiff and Respondent Department of Child Support Services.


              There is no change in the judgment.




                                            2
Filed 2/7/13 Depart. Child Support Serv. v. Powell CA2/6 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


DEPARTMENT OF CHILD SUPPORT
SERVICES,                                                                      2d Civil No. B238444
                                                                             (Super. Ct. No.BD086977)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.

BRIAN K. POWELL,

     Defendant and Appellant.

In re Marriage of CHANTAL and                                               (Super. Ct. No. SD019049)
BRIAN K. POWELL.                                                                 (Ventura County)

CHANTAL POWELL,

     Respondent,

v.

BRIAN K. POWELL,

     Appellant;

DEPARTMENT OF CHILD SUPPORT
SERVICES,

     Respondent.
              Brian K. Powell (Brian) appeals an order denying his motion to vacate a
1993 default judgment for child support in favor of respondent Department of Child
Support Services (DCSS).1 Brian also filed a motion to quash service of process
claiming there was no valid service of the summons and complaint by substituted
service. We conclude, among other things, that: 1) the trial court correctly ruled that
his motion to vacate the default judgment was untimely, 2) the court did not abuse its
discretion in denying equitable relief to vacate the default judgment, 3) the court did not
err by denying his motion to quash service, and 4) Brian has not shown the court erred
by finding that the substituted service at his mailing address was valid. We affirm.
                                          FACTS
              Brian and Chantal Powell (Chantal) were married in 1987. They had two
children. In 1992, they separated.
              Chantal contacted the Child Support Division of the Los Angeles County
District Attorney's Office (CSDLA) for assistance in obtaining child support. On
August 27, 1992, the CSDLA filed a civil action for support for the minor children
against Brian in the Los Angeles County Superior Court.
              On November 30, 1992, Fred Sloan, a registered process server for the
CSDLA, served Brian by substituted service. (Code Civ. Proc., § 415.20.) He left a
copy of the summons and complaint with Tracy Martine at a residence in Sherman
Oaks, California. Martine told him that Brian did not live there, but he received his
mail there.
              Brian did not answer the complaint. A default was entered against him on
March 11, 1993. A judgment establishing Brian's monthly child support obligation was
entered on April 20, 1993.
              Chantal filed for dissolution of her marriage in the Ventura County
Superior Court on October 14, 1997. A process server certified that Brian was served


1
 We shall refer to the parties by their first names, not from disrespect but to ease the
reader's task.
                                             2
with the dissolution petition at California Lutheran University 11 days later. Brian did
not answer and a default judgment was entered against him.
               The Los Angeles County child support case was "registered in Ventura
County on March 2, 1999," and it was consolidated with the dissolution action.
               On April 16, 1999, the Ventura County District Attorney (Ventura DA)
"instituted a wage assignment against [Brian's] wages with California Lutheran
University."
               On December 7, 2000, the Ventura DA filed a motion to determine the
amount of past due child support Brian owed. On June 11, 2001, Brian requested a
continuance of that motion. The continuance was granted.
               In 2001, the child support enforcement duties of the CSDLA and county
district attorneys were transferred to the DCSS, a state agency, and its local county
affiliates. (Fam. Code, §§ 17303, 17304, 17305.)
               On October 29, 2010, Brian filed a motion to quash service and to set
aside the March 11, 1993, default and the April 20, 1993, judgment. He declared he
first learned about the child support judgment on July 9, 2010, and he claimed the
substituted service was invalid.
               Donald Kemp, an attorney with the Los Angeles County Child Support
Services Department, filed an opposition declaration. He said Brian had numerous
contacts with the child support enforcement agencies regarding the judgment in 1999,
2000 and 2001. Brian made payments on the judgment in 1994. In October 1999, he
called to dispute the child support amount. Brian said he lost his job in 1993, and he
went to CSDLA to "explain his situation in an unsuccessful effort to modify the
amount."
               Chantal declared that Brian contacted her in 1995. Brian was "very upset
he had been pulled over for speeding and they confiscated his Drivers License for 'back
support.'"



                                            3
              The trial court denied the motions. It found that Brian was not credible,
his motions were untimely, and he did not act with reasonable diligence. It said he was
aware of the proceedings in 1999 or earlier. It ruled the substituted service was valid.
                                      DISCUSSION
                              An Untimely Motion to Vacate
              Brian claims the trial court erred by ruling that his motion to set aside the
default judgment was untimely. We disagree.
              The default judgment was entered on April 20, 1993. Brian filed his
motion to vacate on October 29, 2010.
              Family Code section 3691, subdivision (c)(1) provides that: 1) where
"service of a summons has not resulted in notice to a party in time to defend the action
for support" and a default judgment is entered, 2) the party subject to the judgment may
file a "motion to set aside the default," but 3) that motion "shall be served and filed
within a reasonable time, but in no event later than six months after the party obtains or
reasonably should have obtained notice . . . of the support order." (Italics added.)
              Here there was a 17-year delay between the judgment and the motion to
vacate.
              Brian claims he did not discover a judgment was entered against him until
July 2010. The trial court said he was not "credible." It found he "did not act with
reasonable diligence" and that he "was aware of the proceedings" in 1999 or "earlier."
              Brian selected some, but not all, documents filed by the parties to be
included in the clerk's transcript. The trial court however reviewed all the court files. It
found that documents in the court records refuted Brian's claims. The court also found
that "exhibits" were "missing" from Brian's motion. Brian has the burden to produce a
complete record. Because he did not do so, we must presume the court's findings are
supported, in part, by documents not before us. (Null v. City of Los Angeles (1988) 206
Cal.App.3d 1528, 1532.) But even on the incomplete record Brian has filed with this
court, he has not shown error.


                                             4
              Brian claims the trial court should have relied on the portion of his
declaration where he stated he did not discover the default judgment until 2010.
              But Kemp's declaration shows that: 1) Brian made payments on the
judgment in 1994; 2) in June 1999, Brian called the Ventura County DCSS stating
"there was a Los Angeles County order" and he asked about "a release of his driver's
license"; 3) in 1999, Brian visited the "Ventura office in person and asked how to get
credit for direct payments he had made," 4) in October 1999, Brian "called Ventura
disputing his balance"; 5) in March 2000, Brian stated he wanted a support
"modification"; he wanted a "continuance to hire a lawyer, but he was 'flat broke'
because Ventura had levied his bank account."
              Chantal's declaration shows that Brian knew about the support judgment
as early as 1995. A declaration by Jacqueline Tilkens, an attorney with the Ventura
County DCSS, reflects that Brian had numerous contacts with the Ventura County child
support division between 1997 and 1999. In 1999, it received "paperwork" he signed
with an "attached paystub."
              This case was tried on conflicting declarations. "Just as with live
testimony, it was for the trial court to consider the declarations" and resolve the disputed
issues. (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1647.) "[W]e must resolve all
evidentiary conflicts in favor of the prevailing party . . . ." (Burch v. Premier Homes,
LLC (2011) 199 Cal.App.4th 730, 744.) "We may not insert ourselves as the trier of
fact and reweigh the evidence." (Id. at p. 745.) Credibility was a matter exclusively for
the trial court to decide. (Church of Merciful Saviour v. Volunteers of America, Inc.
(1960) 184 Cal.App.2d 851, 856; Lohman v. Lohman (1946) 29 Cal.2d 144, 149.)
"'"When the issue is tried on affidavits . . . and where there is a substantial conflict in
the facts stated, a determination of the controverted facts by the trial court will not be
disturbed."'" (Fredrics, at p. 1647.) Brian has not shown the trial court erred in finding
he did not act with reasonable diligence in moving to set aside the default judgment.



                                              5
The court could reasonably find that he was at least 10 years beyond the statutory
deadline.
                                       Relief in Equity
              Brian contends the trial court erred by not exercising its equitable power
to grant relief from the judgment. He claims his case is analogous to extrinsic fraud
cases where defaulted parties are granted relief after exceeding the statutory deadlines
for relief from default.
              Where "'a motion to vacate a default judgment is made' beyond the
statutory deadline for relief, it is "'directed to the court's inherent equity power.'"
(Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314.)
              But a party seeking equitable relief "must satisfy three elements: 'First,
the defaulted party must demonstrate that [he or she] has a meritorious case. Secondly,
the party . . . must articulate a satisfactory excuse for not presenting a defense to the
original action. Lastly, the moving party must demonstrate diligence in seeking to set
aside the default once . . . discovered.'" (Gibble v. Car-Lene Research, Inc., supra, 67
Cal.App.4th at p. 315.) Brian cannot meet this standard because the court found he did
not act with due diligence. Moreover, he did not testify or present admissible evidence
at the hearing to show he had a meritorious defense or to demonstrate why laches did
not bar equitable relief. (In re Marriage of Park (1980) 27 Cal.3d 337, 345.)
              There are specific time limits for equitable relief involving motions to set
aside support orders. The Court of Appeal in In re Marriage of Zimmerman (2010) 183
Cal.App.4th 900, 910, said the "'traditional "equitable" set-aside relief is statutorily
preempted with regard to support orders.' [Citation.] [S]ection 3691 is the exclusive
set-aside remedy." Consequently, based on the trial court's findings, Brian's motion was
filed well beyond that statute's six-month limitations period from the date of discovery.
(Fam. Code, § 3691, subd. (c)(1).)
              But even apart from section 3961, our Supreme Court has repeatedly held
that "a motion to vacate a judgment should not be granted where it is shown that the


                                               6
party requesting equitable relief has been guilty of inexcusable neglect or that laches
should attach." (In re Marriage of Park, supra, 27 Cal.3d at p. 345, italics added.)
              Brian cites County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215.
There the Court of Appeal said, "When a judgment or order is obtained based on a false
return of service, the court has the inherent power to set it aside [citation], and a motion
brought to do so may be made on such ground even though the statutory period has
run." (Id. at p. 1229, italics added.) But it also said, "Because of the strong public
policy in favor of the finality of judgments, equitable relief from a default judgment or
order is available only in exceptional circumstances." (Id. at pp. 1229-1230, italics
added.) In Gorham, the exceptional circumstances involved a process server who
committed "perjury" in his declaration of service. He falsely claimed he served Gorham
at one address at a time when "Gorham was in custody in jail." (Id. at p. 1231.) The
court said this "constitutes evidence of an intentional false act that was used to obtain
fundamental jurisdiction over Gorham." (Id. at p. 1232, italics added.)
              Here the trial court found that "the facts of the instant case" did not fall
within the Gorham rule. Brian suggests this case is analogous to Gorham, but he did
not produce evidence to show that the process server committed perjury or made a
falsified return of service. At the hearing on his motion, Brian did not testify. His
attorney did not call any witnesses or present evidence. Instead, he relied on Brian's
declaration to claim the summons was served at the wrong address and that the process
server acted unreasonably.
              But reliance on Brian's declaration does not assist him on appeal because
the trial court found he was not credible. It said, "His lack of credibility and failure to
act diligently precludes this court from granting him relief of any equitable nature."
Many of the arguments Brian advances are based on facts he alleged in his declaration.
But the court could disregard them. "[A] trial judge has an inherent right to disregard
the testimony of any witness . . . when he [or she] is satisfied that the witness is not
telling the truth . . . ." (La Jolla Casa De Manana v. Hopkins (1950) 98 Cal.App.2d


                                              7
339, 345-346.) That is the case even where appellant's declaration is uncontradicted.
(In re Marriage of Hofer (2012) 208 Cal.App.4th 454, 460; Lohman v. Lohman, supra,
29 Cal.2d at p. 149.)
              Brian claims "the trial court failed to allow [him] to present evidentiary
testimony . . . ." The record does not support him. At the morning session of the
hearing on Brian's motion, the court said it intended to have an evidentiary hearing.
Counsel for the DCSS proposed a procedure for the afternoon session. She said the
court: 1) could consider additional "exhibits" and 2) "[we] can argue it. And the Court
can take it under submission for ruling." (Italics added.) At this point Brian's counsel
had the opportunity to advise the court that he disagreed and wanted Brian to testify.
Instead, he told the court, "That's fine, your Honor." Consequently, Brian is estopped to
claim error. (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000;
People v. Level (2002) 97 Cal.App.4th 1208, 1213.)
                        The Motion to Quash the Substituted Service
              Brian claims his motion to quash service should have been granted
because the trial court never acquired jurisdiction over him. He claims the substituted
service was invalid because the process server went to the wrong address and did not act
with reasonable diligence. He contends the court consequently erred by denying his
motion. We disagree.
                             Substituted Service Requirements
              The trial court found, "The affidavit of process server Fred Sloan
establishes that he went to the address on file with the District Attorney's Child Support
Division. He was informed by a person at that address, Tracy Martine, that [Brian] did
not reside at that address, but that he received mail there. Mr. Sloan left a copy of the
documents at that address. In light of the fact that Mr. Sloan was advised [Brian] did
not reside at that address, he determined that further attempts at personal service at that
location would be futile. He then mailed a copy of the Summons and Complaint to that



                                             8
address and completed the proof of service and affidavit." (Italics added.) The court
ruled this substituted service complied with Code of Civil Procedure section 415.20.
              Code of Civil Procedure section 415.20, subdivision (b) provides, in
relevant part, that "a summons may be served by leaving a copy of the summons and
complaint at the . . . usual mailing address . . . in the presence of . . . a person apparently
in charge of his or her . . . usual mailing address . . . at least 18 years of age, who shall
be informed of the contents thereof, and by thereafter mailing a copy of the summons
and complaint . . . at the place where a copy of the summons and complaint were left."
                              Reasonable Attempts at Service
              Brian claims Sloan did not act reasonably because: 1) Sloan did not have
valid address information, and 2) Sloan did not make additional attempts to personally
serve him at his office or elsewhere after serving Martine. But the trial court could find
that Sloan acted reasonably. It noted that he obtained the address information from a
governmental source the court found to be reliable - the District Attorney's Child
Support Division records. Given the incomplete record, we must defer to the trial
court's findings on this issue. (Null v. City of Los Angeles, supra, 206 Cal.App.3d at p.
1532; see also Evid. Code,§ 664.) Moreover, the record reflects that when Sloan arrived
at the residence he learned that Martine knew who Brian was because she said Brian
received mail there. Consequently, the court could find that Martine essentially
confirmed that the mailing address information in CSDLA's records was correct. The
court also found Sloan did not have to make additional attempts to serve Brian at that
address because Martine confirmed that he did not live there. The court was correct. "It
would be futile for the process server to return to that address two more times and
attempt service at a residence where [Brian] no longer lived." (Ellard v. Conway (2001)
94 Cal.App.4th 540, 545.)
              Brian claims there were insufficient attempts to locate him at other
addresses. A process server must act reasonably. But he or she is "not required to
'exhaust all avenues of obtaining a current address.'" (Ellard v. Conway, supra, 94


                                               9
Cal.App.4th at p. 545.) Sloan declared that he did not know of any other address for
service. Citing to his own declaration, Brian claims Sloan and CSDLA could have
served him at other places. But the court acted within its authority by not relying on
Brian's declaration after finding he was not credible. In his declaration, Brian said that
because he worked at the Los Angeles Police Department (LAPD), the CSDLA should
have known his office address because it was also "his employer at the time." He said,
"I was employed by the same entity that filed suit against me." (Italics added.) But the
trial court found these assertions were false. It noted that LAPD is a city agency, but
CSDLA is part of county government.
              There is evidence showing efforts were made to locate Brian's address.
The CSDLA sent a letter to LAPD in 1992 asking, among other things, for Brian's home
address. But LAPD responded without providing any home or office address
information or any phone number where he could be reached. Brian suggests Sloan
could have obtained his home address by simply contacting the LAPD. But that is not
the case. (Hackett v. Superior Court (1993) 13 Cal.App.4th 96, 99 [court order
requiring disclosure of sheriff deputy's home address was vacated because that
information is confidential].)
              Sloan filed a declaration of due diligence with the proof of service. He
declared he was unable to make personal service on Brian because his home and office
address were not known to him. He said he made a "'due search, careful inquiry and
diligent attempt at the usual place of receiving mail,'" to attempt "personal service" on
Brian. (Italics added.) Brian claims Sloan was not credible. But credibility was a
matter for the trial court and it implicitly found Brian failed to show that Sloan did not
act "in good faith." (Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229, 1232.)
              Moreover, Karen Hostetler, an agent of the district attorney, signed the
declaration of mailing on the district attorney's request to enter default. She declared
that on March 3, 1993, "14056 Valleheart Dr., #316 Sherman Oaks, Ca 91423" was
Brian's "last known address." That supports Sloan's claims. The address she mentioned


                                            10
is the same service address listed in Sloan's declaration. In the 1993 support judgment,
the trial court listed "14056 Valleyheart Drive # 316 Sherman Oaks, California 91423"
as Brian's address. (Doran v. Burke (1953) 118 Cal.App.2d 806, 807 ["Recitals in a
judgment are presumed to be true and correct"].) The superior court clerk's "certificate
of mailing" of the April 22, 1993, notice of entry of judgment also lists that same
Sherman Oaks address. Sloan's and Hostetler's declarations and these court records
support the trial court's findings. (Evid. Code. § 664; Doran, at p. 807; Christie v.
Superior Court (1933) 218 Cal. 423, 425.)
                            Inadequate Declaration of Service
              Brian claims the service was invalid because Sloan's declaration did not
contain a reference to Martine's age. He contends it consequently did not comply with
Code of Civil Procedure section 417.10, subdivision (a). That section provides, in
relevant part, "Proof that a summons was served on a person within this state shall be
made: [¶] (a) If served under Section . . . 415.20 . . . by the affidavit of the person
making the service showing the time, place, and manner of service and facts showing
that the service was made in accordance with this chapter. The affidavit shall recite or
in other manner show the name of the person to whom a copy of the summons and of the
complaint were delivered, and, if appropriate, his or her title or the capacity in which he
or she is served, and that the notice required by Section 412.30 appeared on the copy of
the summons served, if in fact it did appear." (Ibid., italics added.)
              The person served by substitute service must be at least 18 years of age.
But the portion of Code of Civil Procedure section 417.10 describing what the "affidavit
shall recite" does not make reference to the person's age. It requires the person's name
"and, if appropriate, his or her title." (Id., subd. (a).) Sloan complied because he
named Martine as the person who received the summons and complaint.
              The prior sentence in this section requires "facts showing that the service
was made in accordance with this chapter." (Code Civ. Proc., § 417.10, subd. (a).)
Brian claims this provision must be strictly construed to mean that if the affidavit does


                                             11
not mention Martine's age the service is invalid. But in Sloan's declaration he said the
form of service was "substituted service." The printed proof of service court form
attached to the declaration describes the requirements of substituted service, including
that the recipient must be "18 years of age." Brian has not shown why the trial court
could not reasonably infer that Sloan's reference to "substituted service" implicitly
referred to the substituted service requirements in that attached court form.
              But even if Sloan made an omission, courts have not applied the strict
construction analysis Brian proposes. In Trackman v. Kenney (2010) 187 Cal.App.4th
175, the Court of Appeal rejected a claim that service was void because the affidavit did
not contain the name of the person served as required by section 417.10. The "proof of
substituted service" showed service on "'John Doe, co-resident.'" (Id. at p. 179.) The
court noted that prior case law had required "strict compliance for completion of
constructive service." (Id. at p. 184.) But current law uses a "liberal construction rule"
so that service will not be defeated for "minor deficiencies." (Ibid.) The court said the
purpose of this provision "is to enable the recipient to be located in the future, should
the claim of service be challenged." (Ibid.) Here that goal was achieved by naming
Martine and listing the date, place and manner of service.
              Brian relies on what he considers to be Sloan's incomplete service
affidavit. But such an omission or irregularity does not automatically render the service
void. (Trackman v. Kenney, supra, 187 Cal.App.4th at p. 184; Hearn v. Howard (2009)
177 Cal.App.4th 1193, 1204 [omission in service declaration did not render service
void]; Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778;
Hershenson v. Hershenson (1962) 205 Cal.App.2d 382, 385; see also Bell v. Bell,
Kalnick, Klee & Green (N.Y. 1998) 246 A.D.2d 442, 443 ["The defects in the affidavit
of service do not defeat an otherwise properly commenced action, but are mere
nonjurisdictional irregularities"].) "Where a reasonable attempt has been made to
comply with a statute in good faith, and there was no attempt to mislead or conceal, the



                                             12
doctrine of substantial compliance holds that the statute may be deemed satisfied."
(Davis v. Allstate Ins. Co., supra, 217 Cal.App.3d 1229, 1232.)
              Sloan said "the substituted service was properly made" and he described
Martine as the "person in charge of usual place of receiving mail." (Italics added.)
From Sloan's declaration, the trial court could find that Martine both resided at the place
where Brian received his mail and knew who Brian was. (Evid. Code, § 647; Palm
Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.) Brian did
not allege that he did not know who Martine was and he admitted he had previously
lived at that address. The trial court could reasonably infer that if Brian believed
Martine was not 18, he would have provided evidence on that issue. Because of his
connection to that residence and because the court found he received mail there, the
court could find that he was in the best position to know Martine's age. (Evid. Code,
§ 413; Moss v. Superior Court (1998) 17 Cal.4th 396, 427.)
              Moreover, as the party challenging a registered process server's
declaration post judgment, Brian had the burden to produce evidence. (Evid. Code,
§ 647; Palm Property Investments, LLC v. Yadegar, supra, 194 Cal.App.4th at p. 1427
[registered process server's proof of service creates "'a presumption affecting
defendant's burden of producing evidence'"]; Christie v. Superior Court, supra, 218 Cal.
at p. 425.) A party who claims the person served is not the proper age has the burden to
present proof on that issue. (Christie, at p. 425; Woods v. Congress Financial Corp.
(Ga.Ct.App. 1979) 253 S.E.2d 834, 835; Holmen v. Miller (Minn. 1973) 206 N.W.2d
916, 919-920.)
              The parties cite no California cases directly on point. But courts in other
jurisdictions have discussed the issue of defective service when the affidavit of service
did not mention the age of the person served. In Woods v. Congress Financial Corp.,
supra, 253 S.E.2d at page 835, a deputy sheriff's substituted service declaration listed
the date, place and manner of service. But it did not include the age of the person
served, nor did it contain the statutory language that the person was "of suitable age and


                                            13
discretion" to be served with process. The defaulted defendant claimed the declaration
was defective, but it did not present evidence regarding the age of the person served at
the hearing to challenge service. The appellate court found the burden was on the party
challenging service to prove the person served was not of suitable age. Because the
defendant did not meet that burden, service was presumed to be valid. (Ibid.)
              Here Brian presented no evidence about Martine's age at the hearing, and
he did not claim Martine was under 18 in his declaration. He made no offer of proof at
the hearing that he had evidence to show that Martine was under 18. The trial court
could find these omissions undermined Brian's suggestion that Sloan may have served
an underage person. (Evid. Code, §§ 413, 647; Christie v. Superior Court, supra, 218
Cal. at p. 425; Woods v. Congress Financial Corp., supra, 253 S.E.2d at p. 835.)
              The trial court could reasonably rely on the rebuttable presumption that
official duty is regularly performed and that Sloan, as an agent of the district attorney
and a registered process server, would not be expected to serve a minor. (Evid. Code,
§§ 647, 664; Woods v. Congress Financial Corp., supra, 253 S.E.2d at p. 835.) The
court entered the 1993 support judgment relying on the "documents" presented by the
district attorney. "The presumption arising from the former judgment is, of course, in
favor of the regularity of the service, and the burden is on the party attacking it."
(Christie v. Superior Court, supra, 218 Cal. at p. 425.) The court could and did find
Brian did not rebut that presumption.
                              Other Grounds for Affirmance
              Moreover, even had Brian shown that Sloan made errors in performing
service and on his proof of service, the result does not change. His motion to quash was
included as part of his motion to vacate. But he has not shown why the trial court could
not reasonably find that the motion to quash was also barred as untimely. (Fam. Code,
§ 3691, subd. (c)(1); In re Marriage of Zimmerman, supra, 183 Cal.App.4th at p. 910;
Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1186; In re Marriage of Park, supra, 27



                                             14
Cal.3d at p. 345; Fidelity Bank v. Kettler (1968) 264 Cal.App.2d 481, 487 [motion to
quash barred by "a distinct badge of laches"].)
              Moreover, the trial court found that in 2001, Brian sought and obtained a
continuance of the Ventura DA's motion to determine the amount of his back child
support. Brian told the district attorney's office that he needed a continuance as he was
seeking a modification of the amount owed. The trial court said the court's minute order
reflects the hearing "was continued 'On Motion of Mr. Powell (per phone call to D.A.).'"
(Italics added.) Brian has not shown why the court could not find that his successful
motion for a continuance of a hearing on the merits constituted a general appearance
that waived any challenges to service. (366-386 Geary St., L.P. v. Superior Court
(1990) 219 Cal.App.3d 1186, 1194, fn. 2; Zobel v. Zobel (1907) 151 Cal. 98, 101 ["[A]n
appearance for any other purpose than to question the jurisdiction of the court is
general. . . . It is difficult to perceive how the application of the defendant for a
continuance of the hearing could operate other than as a personal appearance in the
case"].)
              We have reviewed Brian's remaining contentions and we conclude he has
not shown error.
              The judgment is affirmed. Costs on appeal are awarded in favor of
respondent DCSS.
              NOT TO BE PUBLISHED.



                                            GILBERT, P.J.
We concur:



              YEGAN, J.



              PERREN, J.

                                             15
                              JoAnn Johnson, Commissioner

                             Superior Court County of Ventura

                         ______________________________


             Stolar Associates, Steven R. Stolar, Evan L. Bardo for Defendant and
Appellant Brian K. Powell.


             Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Senior
Assistant Attorney General, Linda M. Gonzalez, Supervising Deputy Attorney General,
Richardo Enriquez, Deputy Attorney General, for Plaintiff and Respondent Department
of Child Support Services.


             No appearance for Respondent Chantal Powell.




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