Opinion
E071818
02-24-2020
COUNTY OF SAN BERNARDINO DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. ELENA GROSS, Defendant and Appellant; TIMOTHY GROSS, Real Party in Interest and Respondent.
Elena Gross, in pro. per., for Defendant and Appellant. Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Linda M. Gonzalez and Ricardo Enriquez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CSSS1001023) OPINION APPEAL from the Superior Court of San Bernardino County. John A. Crawley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Vacated and remanded with directions. Elena Gross, in pro. per., for Defendant and Appellant. Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General, for Plaintiff and Respondent. No appearance for Real Party in Interest and Respondent.
Defendant and appellant Elena Gross (Elena) appeals from orders of the family court granting a motion by the County of San Bernardino Department of Child Support Services (the department) setting a minimum monthly payment for Elena's child support arrearage and lifting a stay on suspension of Elena's driver's license for failure to pay child support. Elena did not appear at the initial or continued hearings on the motion. Among other things, on appeal she contends she was not properly served with the motion. The department argues Elena was properly served with respect to the initial hearing but concedes she did not appear to receive proper notice of the continued hearing date and, therefore, the family court lacked the authority to enter its orders against her. The department does not oppose this court vacating the orders. We agree with the department's concession and vacate the family court's December 11 and 14, 2018 orders.
"As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect." (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
I.
PROCEDURAL BACKGROUND
This is the fifth appeal from Elena related to child support orders entered against her. (See County of San Bernardino v. Gross (E070189, April 10, 2019) [nonpub. opn.] (Gross IV).) "On December 2, 2010, Elena was ordered to pay $420 a month in child support. Effective December 1, 2016, her child support order was reduced to zero. Since then, she has resisted the department's efforts to enforce the child support arrears, which accrued before her order was reduced to zero." (Gross IV, E070189.) In the most recent appeal, we vacated an order denying Elena's motion for sanctions against the department and denying her request to disqualify the attorney for the department because Elena had timely objected to a commissioner hearing the matter as a temporary judge. We remanded for the commissioner to make findings of fact and recommend an order to a judge. (See Gross IV, E070189.)
In its brief, the department requests that we take judicial notice of our most recent opinion in this saga, Gross IV. The department did not file and serve a separate motion for judicial notice, as mandated by rule 8.252(a) of the California Rules of Court. We will nonetheless judicially notice that unpublished decision on our own motion. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
On August 29, 2018, while the appeal in Gross IV was pending, the department filed a motion in the family court seeking an order setting Elena's minimum monthly payment on her child support arrearage at $400 and an order lifting a previously imposed stay on suspension of Elena's California driver's license. The department alleged: (1) Elena's then-current arrearage was $47,856.73 with interest accruing at a rate of $275 a month; (2) she had failed to provide the department with current income information, and the department could not determine her income from independent sources; and (3) after reviewing available databases, the department found no indication that Elena was incarcerated, disabled without the ability to work, or receiving public assistance. The notice of motion stated a hearing on the department's request would take place on October 9, 2018, at 8:00 a.m. The proof of service showed the department served Elena by mail the same day the motion was filed.
The department is required to provide the Department of Motor Vehicles (DMV) with a certified list of all persons who are not in compliance with a child support order, and the DMV has the authority to withhold issuance or renewal of a driver's license to such persons. (Fam. Code, § 17520.)
The motion came on for hearing on October 9, 2018, but Elena did not appear. The minutes state the family court continued the hearing until December 11, 2018, at 8:00 a.m. "for proper service of Ms. Gross."
We have not been provided with a transcript from the October 9, 2018 hearing. In its brief, the department states it "mistakenly believed that Elena had not been properly served with notice of the October 9, 2018 hearing," so it requested a continuance to effectuate proper service.
Elena filed her response to the motion on December 5, 2018. Inter alia, she claimed the department did not serve her "within the time frame" mandate by Code of Civil Procedure section 1005, and that no proof of service had been filed with the family court. Elena's response seemed to indicate she was under the impression the department's motion had been continued to December 10, 2018, instead of December 11.
Elena did not appear at the continued hearing on December 11, 2018, either. Counsel for the department stated: "I did look at Ms. Gross's response, and it has today's date on there on her response. The Department was unsure whether she got the previous paperwork or not on the motion. We were initially going to dismiss it, but it appears she does know about it based upon the response." Counsel indicated Elena's minimum payment on her arrearage had been set at zero, and a stay had been imposed on suspension of her driver's license "because she was receiving aid at that time." Counsel further argued that the family court should set the minimum payment at $400 a month and lift the stay because, as far as the department could discover, Elena was no longer receiving aid.
On December 11, 2018, the court orally granted the motion, lifted the stay on suspension of Elena's driver's license, and ordered her to pay at least $400 a month commencing January 1, 2019. The court entered a written order three days later, on December 14, 2018.
Elena timely appealed.
II.
DISCUSSION
Elena contends, inter alia, the family court's December 11 and 14, 2018 orders must be reversed because she was not properly served with the department's motion. In its brief, the department argues it did properly serve Elena with respect to the initial October 9, 2018 hearing, but concedes "the record does not reflect that Elena received proper notice of the continued hearing." Therefore, the department concedes the family court lacked the authority to enter orders against Elena on December 11 and 14, 2018, and the department does not object to this court vacating the family court's orders.
"'The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner."' (Mathews v. Eldridge (1976) 424 U.S. 319, 333 . . . ; accord, Lambert v. California (1958) 355 U.S. 225, 228 . . . .)" (County of Yuba v. Savedra (2000) 78 Cal.App.4th 1311, 1324.) Proper notice must be in writing and state when a hearing shall take place. (Code Civ. Proc., § 1010; see Cal. Rules of Court, rule 5.92(f)(3).) A properly noticed motion from a local child support agency, which states it intends to collect child support and explains that the obligor/parent must appear at the hearing if he/she wishes to challenge the request, satisfies constitutional due process. (See County of San Luis Obispo v. Nathaniel J. (1996) 50 Cal.App.4th 842, 846.) "[T]he court lacks jurisdiction to rule on a motion that has not been properly noticed for hearing on the date in question. (Svistunoff v. Svistunoff (1952) 108 Cal.App.2d 638, 641 . . . ['A sufficient notice of the hearing not having been given, the order was void']; Harris v. Board of Education (1957) 152 Cal.App.2d 677, 680 . . . ['where the trial court lacks jurisdiction to make the order, as in a situation where requisite notice has not been given to the plaintiff, it may be vacated by that court at any time thereafter'].)" (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1204-1205.)
The record supports the department's assertion that Elena was properly served with respect to the initial hearing date of October 9, 2018. However, the department is correct that the record on appeal is completely silent as to any notice—written or otherwise—that was provided to Elena to inform her that the hearing had been continued to December 11, 2018. Elena's written response to the motion seems to indicate she received some notice, and that perhaps she was merely confused as to the correct date of the continued hearing. But, in the absence of a proper proof of service, and considering the department's concession, we must conclude Elena did not receive constitutionally adequate notice of the continued hearing. Consequently, we must conclude the family court lacked the power to enter its orders against her.
Because we conclude the family court lacked the power to enter orders against Elena at the continued hearing, we need not and do not address her additional claims of error. --------
III.
DISPOSITION
The family court's orders entered December 11 and 14, 2018, are vacated. The family court is directed to set a new date to hear the August 29, 2018 motion filed by the County of San Bernardino Department of Child Support Services to set a minimum monthly payment for Elena's child support arrearage and lift a stay on suspension of Elena's driver's license for failure to pay child support. The court shall provide proper notice to all parties of the new hearing date.
Defendant and appellant shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.