Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSD-09-04536
Banke, J.
Appellant Tania Nikolova (Tania) appeals from (a) an order quashing service of process and dismissing this marital dissolution proceeding and (b) from an emergency order issued pursuant to Family Code section 3424, subdivision (a). We conclude the court’s finding that Plamen Ivanov (Plamen) was not personally served is supported by substantial evidence and affirm the order quashing service of process and dismissing this case. We also conclude the court did not abuse its discretion in issuing the order under Family Code section 3424.
We refer to Ms. Nikolova and other family members by their first names to avoid confusion. (See In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 341, fn. 2.)
Background
On September 23, 2009, Tania, proceeding in propria persona, filed a petition for dissolution of her marriage to Plamen. In her petition, she declared under penalty of perjury that she had resided in California for the preceding six months, and in Contra Costa County for the preceding three months. She further averred, in a declaration under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), that the couple’s child, Peter, had been living with her since August 2001 in Contra Costa County. The court issued an order to show cause (OSC), setting a hearing date of December 15, 2009, on child custody, child support, visitation, spousal support, and apportioning the proceeds from the sale of the couple’s home.
On December 15, 2009, Tania filed a proof of service with the court, showing personal service of summons on Plamen in Bulgaria on November 13, 2009 (“13.11.2009”). At the conclusion of the hearing on the OSC that same day, the court (Honorable Cheryl Mills) issued an order granting sole legal and physical custody of Peter to Tania, child support (to be handled through the Department of Child Support Services and to be heard on January 13, 2010) and spousal support of $900 per month. Issues concerning the sale of the couple’s house were reserved for trial.
On January 4, 2010, the court received a letter dated December 21, 2009, from Kapka Nikolova (Kapka), Plamen’s mother and Peter’s grandmother, stating the child had been abducted from Bulgaria in August 2009, and she had been looking for him. She asked for the court’s help in locating him. She also stated that following the abduction, Plamen had filed for divorce and sole custody in Bulgaria, and that case was pending.
On January 11, 2010, Kapka filed a declaration attaching “Documents Justice Government in Bulgaria.” These included: a copy of her December 21, 2009, letter to the court and a Bulgarian document entitled “REQUEST for RETURN pursuant to HAGUE CONVENTION of 25 October 1980 on CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION” (RFR). It was alleged in the RFR that Peter’s “habitual residence” was Sofia, Bulgaria, he had resided there for the last two years, he had been taken from Bulgaria without permission and against Bulgarian law, and Plamen had not heard anything about the child’s whereabouts for months.
Plamen’s Bulgarian attorney also sent a letter to the court that stated as follows: Plamen and Tania had married in Sofia, Bulgaria, on September 5, 1997. They then went to the United States, where they acquired citizenship. Peter was born in Berkeley in August 2001. From the summer of 2007 until August 2009, Tania and Peter lived in Sofia. On September 30, 2009, after Tania took the child, Plamen filed for divorce and child custody in Bulgaria; Tania was served on November 11, 2009. Kapka then went to California to look for Peter and “[b]y accident” found out about the Contra Costa divorce and custody proceeding instituted by Tania. Plamen had not been served with summons in the Contra Costa proceeding, and the Bulgarian Ministry of Justice in California had commenced proceedings for tracing the child under the Hague Convention. The letter also requested time to provide the court with translated documents.
On January 13, 2010, the court (the Honorable Josanna Berkow, commissioner acting as temporary judge upon Tania’s written consent) issued an order finding, based on the proof of service, that Plamen had been served and ordering $1,267 a month in child support. Because Tania and Kapka have the same last name, the court erroneously thought Tania had filed the January 11, 2010, declaration attaching the Bulgarian documents. The court “note[d]” there appeared to be an “application for return of the child, filed in Bulgaria, pursuant to the Hague convention, ” and advised it should be handled by way of an “appropriate motion.”
On February 23, 2010, counsel for Plamen made a special appearance and moved to quash service of process and dismiss the proceeding. Plamen declared under penalty of perjury that: After his 10-year employment with UPS was terminated, he returned to Bulgaria permanently in September 2009, where Tania had been residing with their child, Peter, for two years. When he returned, he learned Tania had left Bulgaria in August with Peter. He only learned of the Contra Costa proceeding in January 2010, after his mother went looking for the child in December and they hired a private investigator, who discovered the court proceeding. The Bulgarian address given for the process server on the purported proof of service filed by Tania, in fact, leads to an empty lot. Plamen asserted his Bulgarian divorce action, filed on September 30, 2009, and served on Tania by way of her father as permitted under Bulgarian law, had priority. On December 2, 2009, he had filed a request with the Bulgarian Ministry of Justice to start tracing proceedings for Peter. He attached copies of his stamped United States and Bulgarian passports, the child’s school records, the Bulgarian divorce proceeding, the RFR and the letter to court from counsel. The motion to quash and dismiss the proceeding was set for March 22, 2010.
Tania’s assertion that Plamen’s statement was an “unsworn, inadmissible hearsay statement” is incorrect. Plamen’s statement was attached to a Family Code form Application for Order and Supporting Declaration (as provided for by paragraph 10 of the form) executed under penalty of perjury. At oral argument, Tania’s counsel maintained this statement did not meet the requirements of Code of Civil Procedure section 2015.5 because the “date” portion of the form Application was left blank. However, that omission does not invalidate the submission, particularly since the narrow time frame in which the declaration was made is readily apparent from the record. (See People v. Flores (1995) 37 Cal.App.4th 1566, 1575-1576 [finding substantial compliance with the requirements of Code of Civil Procedure section 2015.5 where there was “substantial evidence from which to infer or deduce the date the application was executed”].)
On March 18, 2010, counsel appeared for Tania by way of a “Notice of Limited Scope Representation, ” seeking a continuance of the hearing on the motion to quash and dismiss. Plamen opposed the request. On March 22, 2010, the court (Honorable Patricia Scanlon) granted it and continued the hearing to April 9, 2010. It ordered opposition filed by March 30 and also ordered Tania to surrender Peter’s passport to Plamen’s attorney. On April 1, 2010, Tania’s attorney withdrew, without having filed opposition to the motion.
On April 5, 2010, Plamen filed “Supplemental Evidence of Improper Service.” This included a translated statement by the supposed process server dated March 11, 2010, (“11.03.2010”) stating he had not served Plamen.
On April 8, 2010, a new lawyer for Tania sought another continuance to “present admissible evidence” in opposition to the motion to quash and dismiss. Counsel asserted Plamen had “absolutely fail[ed] to meet his initial burden” of no “minimum contacts” with Contra Costa and claimed Tania needed extensive discovery, taking 60 to 90 days, to document the couple’s financial history. Tania filed a declaration in support of the request and in opposition to the motion, disputing much of what Plamen had declared. Apparently, the couple’s difficulties came to a head when Tania, who had been diagnosed with multiple sclerosis in 2000, returned from Bulgaria in August 2009 and by chance saw Plamen at the Kaiser Hospital in Oakland with “another” woman and child. Tania claimed she had been “sent” to Bulgaria and admitted spending significant time there, but asserted she always considered her “home” to be in El Cerrito. She also claimed Plamen took her naturalization papers, social security card, California identification card and credit cards, and sold the couple’s home without her knowledge, making and secreting from her more than $400,000. Tania’s father also filed a declaration in opposition to the motion, asserting Plamen had had a mistress and illegitimate child while in Bulgaria. He also stated he had attempted to deliver a copy of the summons and petition for dissolution at the address listed on the proof of service, an apartment where Plamen had been living with his mistress. However, no one answered the door.
Plamen opposed any further continuance of the motion, and the court denied Tania’s request for an additional continuance.
At the hearing the following day, on April 9, 2010, the court first addressed the issue of Tania’s representation, stating no substitution of attorney was in the file and passing the matter to allow her new lawyer an opportunity to find a file endorsed copy. He failed to do so, and Tania proceeded in pro. per. The court then observed it had not received any points and authorities in opposition to the motion, yet the burden was on Tania to show Plamen had been personally served Tania at first refused to communicate with the court, but then was sworn and testified. She did not address service on Plamen or her absence from Contra Costa County for most of the three months preceding filing the dissolution proceeding. Nor did she address the jurisdictional impact of the first-filed Bulgarian divorce proceedings, although she was adamant she did not want to travel to Bulgaria and did not want her son sent there. She gave contradictory testimony as to whether she had “permission” to take Peter without Plamen’s knowledge, on the one hand admitting she took the child without his permission, but on the other hand claiming she had permission to take the child anywhere. When the court explained that, absent proper service on Plamen, it had no jurisdiction to act and the child would be ordered returned to his father, Tania stated she would “kill myself [in] front of your eyes.” The court immediately ordered Tania to disclose the child’s whereabouts, which she did. Then, after conflicting statements by Tania as to whether her father was or was not in court and could retrieve the child (it was determined he was in court), the court held a discussion off the record and then ordered Kapka, who was also at the hearing, to take custody of Peter pursuant to a civil standby with local law enforcement and to return him to his father in Bulgaria.
On the same date, the court issued a written order granting the motion to quash and dismiss, finding (1) Plamen had not been personally served with summons and a copy of the petition for dissolution and (2) even if he had been served on the date represented by Tania, she had already been served with summons in Plamen’s first-filed divorce proceeding. The court therefore ruled it had no jurisdiction over Plamen and dismissed the proceeding in its entirety. It also confirmed issuance of an emergency custody order under Family Code section 3424.
On June 10, 2010, Tania filed a notice of appeal. On July 12, 2010, she filed several declarations, including her own, stating Peter had been seen in the area on May 10, 2010. Her attorney also filed a declaration complaining of “case irregularities” and, specifically, that he had, in fact, filed a substitution of attorney and later located a file-endorsed copy. Tania did not, however, file any motion bringing these matters to the attention of the trial court.
Discussion
Motion to Quash
“The procedural rules that apply when a defendant moves to quash service of summons for lack of jurisdiction are... well settled. Although the defendant is the moving party, the plaintiff must carry the initial burden of demonstrating facts by a preponderance of evidence justifying the exercise of jurisdiction in California. [Citations.] The merits of the complaint are not at issue at this stage of proceedings.” (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 110 (In re Automobile).) “The plaintiff must do more than merely allege jurisdictional facts. It must present evidence sufficient to justify a finding that California may properly exercise jurisdiction over the defendant. [Citation.] The plaintiff must provide affidavits and other authenticated documents in order to demonstrate competent evidence of jurisdictional facts. Allegations in an unverified complaint are insufficient to satisfy this burden of proof. Declarations cannot be mere vague assertions of ultimate facts, but must offer specific evidentiary facts permitting a court to form an independent conclusion on the issue of jurisdiction.” (Ibid.)
“When the trial court rules after hearing conflicting evidence on a factual issue, we must uphold its factual determinations on appeal if substantial evidence supports them. When the facts are undisputed, the issue of jurisdiction becomes a pure question of law.” (In re Automobile, supra, 135 Cal.App.4th at p. 111).
The trial court’s finding here—that personal service was never made on Plamen—is supported by substantial evidence. While Tania initially filed a proof of service purportedly showing personal service on Plamen in Bulgaria, she made no showing controverting Plamen’s declaration that, in fact, no personal service was ever made. It was the province of the trial court, as the finder of fact on a motion to quash, to credit his declaration and conclude the original proof of service was invalid. Absent proper service of summons and a copy of the dissolution petition, the court had no jurisdiction over Plamen, and the proceeding was properly dismissed. (See Code Civ. Proc., § 418.10; Renoir v. Restar Corp. (2004) 123 Cal.App.4th 1145, 1150-1152 [compliance with service requirements is necessary to obtain jurisdiction over party].)
While Tania asserts Plamen’s “pleadings” were “defective” and contends hers were “more complete and more accurate, ” she is rearguing the evidence. Our inquiry, however, is limited to whether there is any substantial evidence—meaning admissible evidence of ponderable legal value—that supports the court’s order. (See Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 612.) Competent evidence from even one witness suffices for this purpose. (Ibid.) Here, that evidence is supplied by Plamen’s declaration that he was never served and the first he heard of this dissolution proceeding was after his mother went looking for his son and with the help of a private investigator discovered this action. Accordingly, Tania’s lengthy recitation of other filings by Plamen and complaints they were replete with inadmissible hearsay, is immaterial.
Denial of Continuance
Our standard of review of an order granting or denying a continuance is also well established. “The decision to grant or deny a continuance is committed to the sound discretion of the trial court. (Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1586....) The trial court’s exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. (Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 815....) A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566....) The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred. (Ibid.)” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.)
The trial court did not abuse its discretion in denying a second continuance of the hearing on the motion to quash and dismiss. The motion was filed February 23, 2010, and was set for hearing on March 22, 2010. On March 18, counsel appeared for Tania and requested a continuance, which Plamen opposed. The court granted Tania’s request, ordered opposition filed by March 30 and continued the hearing to April 9. On April 1, Tania’s counsel withdrew, without filing opposition to the motion. The day before the continued hearing date, new counsel appeared for Tania, seeking another continuance. The memorandum counsel filed was in the alternative, i.e., in support of the motion to continue and/or in opposition to the motion to quash. Similarly, Tania’s declaration with attached exhibits was submitted alternatively in support of the motion to continue and in opposition to the motion to quash. Given this record, we cannot say there was any clear abuse of discretion by the trial court in denying a second continuance.
Moreover, it is apparent Tania anticipated her request for a second continuance might be denied since her memorandum of points and papers were submitted both in support of her motion to continue and in opposition to the motion to quash and dismiss. While these documents were filed more than a week after the court-ordered deadline to submit opposition to the motion to quash, the trial court stated “for the record” that it did have the documents before it. The court also allowed Tania to be sworn and testify on her own behalf at the hearing. Tania did not provide any additional evidence as to whether Plamen had been properly served, leaving Plamen’s declaration that he had not been personally served uncontradicted. Nor did she deny that she had not been living continuously in California for six months or in Contra Costa County for three months before she filed for dissolution. Accordingly, even without a further continuance, Tania was able to present her position to the court. And what she told the court confirmed it had no jurisdiction to hear her dissolution petition, including because she failed to meet the residency requirements.
Because we conclude there was no abuse of discretion in denying Tania’s request for an additional continuance and also conclude the trial court’s finding that Plamen was not personally served is supported by substantial evidence, we need not, and do not, reach any of Tania’s arguments on the merits, including that the Bulgarian divorce proceedings were not deserving of any priority.
Family Code Section 3424 Order
In addition to granting Plamen’s motion to quash, the trial court also entered an emergency custody order pursuant to Family Code section 3424. This provision states in pertinent part: “A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” (Fam. Code, § 3424, subd. (a).) “An ‘emergency’ exists when there is an immediate risk of danger to the child if he or she is returned to a parent.” (In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1349; accord, In re Nada R. (2001) 89 Cal.App.4th 1166, 1174.) Generally, emergency jurisdiction is “short term and limited.” (In re Jaheim B., at pp. 1349-1350.) “Aside from the necessity of protecting a child from immediate harm, presence of the child in the state is the only prerequisite.” (In re Nada R., supra, 89 Cal.App.4th at p. 1174.)
In the usual case, Family Code section 3424 is invoked to permit a California court to assume immediate jurisdiction over a child (a) who has no “home state” and is the subject of a pending California dependency or juvenile proceeding (e.g., In re Jaheim B., supra, 169 Cal.App.4th at pp. 1349-1350) or (b) in derogation of a custody order issued by, or custody proceedings pending, in another jurisdiction (e.g., In re Nada R., supra, 89 Cal.App.4th at pp. 1175-1176). Here, however, there was no pending matter before the trial court; it had dismissed the divorce proceeding for lack of jurisdiction. Nor did the court assume emergency jurisdiction in derogation of a custody order or custody proceedings pending elsewhere; rather, the order returning Peter to his father facilitated the Bulgarian divorce proceeding. Nevertheless, given that the only requirements for an emergency order under Family Code section 3424 are (a) the child is present in the state and (b) there is an emergency situation requiring that the child be protected, the trial court could act under that statutory provision. (Cf. In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 974 [trial court issued order under section 3424 pursuant to mother’s claim that father, who had filed a petition for divorce in California, violated the Hague Convention by taking children out of Germany, where they had been residing with mother; although mother made prima facie case of right to children under the Convention, emergency order reversed because court failed to make any findings in the face of evidence that mother presented risk of harm to children].)
There was also enough evidence before the court for it to issue an emergency order, including: Peter had been living in Sofia, Bulgaria for more than two years. Tania took him out of that country, without Plamen’s knowledge or consent, the month before Plamen returned. Plamen and his mother were actively looking for Peter, and only discovered his whereabouts with the help of a private investigator. Tania misrepresented her residential status and that of Peter in her petition for dissolution. While Tania appeared in court, she initially refused to speak with the court, despite being invited to do so. Plamen’s attorney directed the court’s attention to Tania’s “visibly apparent” impaired physical condition. After Tania was sworn and testified and the court told her it had no jurisdiction and was going to order Peter returned to Plamen, Tania claimed she was going to kill herself. After the court asked for Tania’s address, which she provided, she told the court contradictory information as to whether her father was in attendance at the hearing and able to bring the child to court. This was a sufficient record for the court to be concerned (a) about Peter’s safety and (b) that Tania would again move the child without his father’s knowledge. We therefore conclude the trial court did not abuse its discretion in issuing the emergency order under section 3424. (See In re Marriage of Witherspoon, supra, 155 Cal.App.4th at p. 976 [applying abuse of discretion standard].)
As the trial court told Tania, she can, and should, attend the divorce proceedings in Bulgaria, and there present her case as to custody arrangements.
Disposition
The order quashing service of process and dismissing this dissolution proceeding is affirmed. The emergency order issued under Family Code section 3424, subdivision (a), is also affirmed.
We concur: Marchiano, P. J., Dondero, J.