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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

 Plaintiff and Respondent,

v.

BRIAN K. POWELL,

 Defendant and Appellant.

2d Civil No. B238444

(Super. Ct. No.BD086977)

 (Los Angeles County)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

In re Marriage of CHANTAL and 

BRIAN K. POWELL.

 (Super. Ct. No. SD019049)

 (Ventura County)

CHANTAL POWELL,

 Respondent,

v.

BRIAN K. POWELL,

 Appellant;

DEPARTMENT OF CHILD SUPPORT 

SERVICES,

 Respondent.
2

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.
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

 Plaintiff and Respondent,

v.

BRIAN K. POWELL,

 Defendant and Appellant.

2d Civil No. B238444

(Super. Ct. No.BD086977)

 (Los Angeles County)

In re Marriage of CHANTAL and 

BRIAN K. POWELL.

 (Super. Ct. No. SD019049)

 (Ventura County)

CHANTAL POWELL,

 Respondent,

v.

BRIAN K. POWELL,

 Appellant;

DEPARTMENT OF CHILD SUPPORT 

SERVICES,

 Respondent.
2

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.
3

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.'" 
4

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. 
5

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. 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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 
12

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 
13

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 
14

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 
15

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.
16

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.