Serena G. v. Robert H. CA1/5

Filed 4/19/23 Serena G. v. Robert H. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

SERENA G., Respondent, A164396 v. ROBERT H., (Alameda County Appellant. Super. Ct. No. HF18900120)

MEMORANDUM OPINION1 After Serena G. filed a petition to establish parental relationship alleging Robert H. as her child’s father,2 the parties appeared in the Alameda Superior Court for a status conference. Representing themselves, they admitted they are the child’s parents and signed an uncontested judgment of parentage which they prepared in court. About a year and a half later (after Serena requested child support), Robert moved through counsel to set aside the judgment on two grounds: first, under Code of Civil Procedure section 473, arguing the judgment is void for lack of personal jurisdiction over him

Cal. Stds. Jud. Admin., § 8.1; Ct. App., First Dist., Local Rules of Ct., 1

rule 19. We use the parties’ first names to protect the child’s privacy. 2

(Cal. Rules of Court, rule 8.90(a)(1), (b)(1), (b)(11).)

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based on a fraudulent proof of service of summons; and second, under Family Code section 7646, arguing he is not the child’s genetic father. The court denied both motions: under the Code of Civil Procedure, “finding that [Robert] acquiesced to the court’s jurisdiction at the [status conference]”; and under the Family Code, “stating no grounds and making no findings for said denial.” Robert appeals on the same grounds he argued in the superior court.3 We find no error. 1. The judgment is not void because Robert consented to the superior court’s jurisdiction by making a general appearance. When the superior court does not have jurisdiction over a party, its judgment affecting that party is void, subject to direct or collateral attack at any time (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660), and the court “may, on motion of either party after notice to the other party, set aside any void judgment or order” (Code Civ. Proc., § 473, subd. (d)). “[T]he word ‘may’ in . . . section 473, subdivision (d) [means the] trial court [has] discretion to grant or deny a motion to set aside a void judgment. [Citation.] However, the trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void. [Citation.] Thus, the reviewing court faces two separate determinations