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Filed 4/21/15 Schuler v. Albright 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

RHONDA M. SCHULER,

Plaintiff and Respondent,

v.

RUSSELL B. ALBRIGHT,

Defendant and Appellant.

 A140870

 (San Mateo County

 Super. Ct. No. FAM0109857)

Russell B. Albright (defendant) appeals from an order denying his motion to quash 

and to set aside a default and default judgment entered against him in a child support 

proceeding, arguing he was never served with the summons and complaint and never 

received actual notice in time to defend the action against him. (Code Civ. Proc., 

§§ 473.5, 418.10, subd. (a)(1).)1 We affirm.

I. FACTS AND PROCEDURAL HISTORY

On April 30, 2010, the San Mateo County Department of Child Support Services 

(Department) received an interstate referral requesting that parentage and child support 

orders be established against defendant on behalf of Rhonda M. Schuler and her minor 

son. On that same date, Department mailed a case opening letter to defendant at 25 

Horseshoe Court in Hillsborough, California, the address provided by the initiating 

jurisdiction. 

 

1

 Further statutory references are to the Code of Civil Procedure unless otherwise 

indicated. 
2

Department caseworkers have password-controlled access to the records of the 

Department of Motor Vehicles (DMV) for the purpose of locating individuals who owe 

child support. In May 2010, the DMV confirmed that defendant’s residential address on 

file with the DMV was 25 Horseshoe Court, that there had been no changes to 

defendant’s residential address since his driver’s license was first issued in 2005, and that 

no other residential addresses were reported in defendant’s DMV records. Also in May 

2010, Department sent postal verification letters to the United States Postal Service to 

determine whether mail was delivered to defendant at 25 Horseshoe Court. The Postal 

Service verified that mail was delivered to defendant at a post office box in San Mateo, 

and that defendant reported his physical address to be 25 Horseshoe Court in 

Hillsborough. In June 2010, Department received a letter from Stanford Federal Credit 

Union indicating defendant had terminated his employment there in February 2009, and 

his last known address was 25 Horseshoe Court. 

On June 13, 2010, Department received a letter from defendant stating: “The 

information you have gathered is in error. I am disputing any child support claims from 

Rhonda Schuler. This dispute is based on the parentage of the child. No contact with 

Rhonda Schuler has been made in over seven years in accordance with the wishes of the 

parent.” No return address or telephone number was listed on the letter. 

On July 22, 2010, Department filed a complaint for child support and order to 

show cause under the Uniform Interstate Family Support Act (UIFSA) seeking child 

support, child care costs, and unreimbursed medical and dental expenses from defendant. 

Several unsuccessful attempts were made to personally serve defendant with the 

summons and complaint at 25 Horseshoe Court. On August 4, 2010, defendant’s mother 

and father answered the door and said defendant did not live there. Defendant’s father 

threatened to take legal action if the “system” did not stop sending people to their door, 

and defendant’s mother threatened to call the police if the process server did not leave. 

Following these unsuccessful efforts to personally serve defendant, Department reviewed 

other possible addresses for him and identified 2249 Armada Way in San Mateo, 

California, using a LexisNexis database. A postal verification letter was sent and on 
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September 20, 2010, the Postal Service confirmed mail was delivered to defendant at that 

address. 

The UIFSA complaint and order to show cause was reissued and personal service 

was attempted at 2249 Armada Way on October 6 and 7, 2010. An affidavit of 

reasonable diligence filed by the process server indicates the tenant at 2249 Armada Way, 

a “Kristina Peterson,” said she had lived at the address for two and one-half years and did 

not know defendant.

2

Efforts to serve defendant at the Armada Way address 

recommenced in February 2012, and on February 7, 2012, the process server saw a man 

who matched defendant’s description move quickly away from an upstairs window after 

observing the process server. The process server rang the doorbell several times but no 

one answered. Personal service was again attempted at the Armada Way address in July 

2012, and on July 31, 2012, the process server was told by “Chris Peterson,” the current 

tenant, that defendant did not live there. 

Meanwhile, Department was provided with additional information linking 

defendant to 25 Horseshoe Court. A January 31, 2012, postal verification letter was 

received in which the Postal Service confirmed mail was being delivered to defendant at 

the Horseshoe Court address. Another postal verification letter sent March 17, 2012, 

confirmed that mail was delivered to defendant at a post office box (which was also listed 

as his mailing address with the DMV), and that defendant reported 25 Horseshoe Court 

as his physical address. DMV records also showed 25 Horseshoe Court as defendant’s 

physical address. On November 13, 2012, the process server effected substitute service 

on defendant by leaving a copy of the summons and complaint with defendant’s father 

and mailing a copy of the same to defendant the following day. (§ 415.20.) When the 

process server handed defendant’s father the documents, defendant’s father said “fuck 

you” twice and threw them at the process server. 

 

2 An affidavit for establishing paternity that was signed by Schuler in September 

2011 lists “Cristina Petersen Albright” as defendant’s current spouse or nonmarital 

partner. 
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After defendant failed to file an answer to the complaint, the trial court granted 

Department’s request for an entry of default. A default judgment was entered on March 

22, 2013, ordering defendant to pay $479.00 a month in child support. 

On September 19, 2013, defendant filed a motion asking the trial court to (1) set 

aside the default and default judgment based on his lack of actual notice of the

proceedings (§ 473.5), and (2) quash service based on the trial court’s lack of jurisdiction 

over him due to the Department’s failure to serve him with the summons and complaint

(§ 418.10, subd. (a)(1)). In support of his motion, defendant provided a declaration from 

his father, Gary Albright, stating that he (the father) had lived at 25 Horseshoe Court for 

many years, but defendant had not lived there since 2005 and did not regularly receive 

mail at that address. Defendant’s father further declared that when he spoke to the 

process server on November 13, 2012, he advised the process server defendant did not 

live at that address and refused to accept the documents from the process server. 

Department filed a responsive declaration by James D. Potter, one of its child 

support attorneys, reciting the history of the case as described above. Attached as an 

exhibit to Potter’s declaration was a declaration by David Carlos, a supervisor with the 

Department who was readily familiar with the Department’s record-keeping system and 

had reviewed the Department’s file in this case. Carlos described the efforts to locate and 

verify defendant’s address, and identified and authenticated the statements of due 

diligence that were filed by the process servers in the case and attached as exhibits. 

Included in the exhibits were a postal verification letter and response from the United 

States Postal Service dated October 1, 2013 (after the motion for relief from default had 

been filed), indicating defendant was still receiving mail at 25 Horseshoe Court. 

Defendant filed a reply declaration stating: “I have not lived at my parent[s’] 

residence at 25 Horseshoe Court, Hillsborough CA 94101 for many years. Since approx. 

February-March 2010 I have lived at 2249 Armada Way, San Mateo and I have a mailing 

address at P.O. Box 5619, San Mateo, Ca. 94402.” 

After listening to the arguments of counsel and taking the matter under 

submission, the trial court denied defendant’s motion in its entirety.
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II. DISCUSSION

Defendant argues he was entitled to relief under section 473.5 because he did not 

have actual notice of the child support proceedings. He contends the default judgment 

against him was void because he was never served with a copy of the summons and 

complaint. We disagree. 

“ ‘[C]ompliance with the statutory procedures for service of process is essential to 

establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a 

defendant who was not served with a summons in the manner prescribed by statute is 

void. [Citation].” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 (Ellard); see 

County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226-1227 (Gorham).) A 

defendant seeking to set aside a default judgment based on a lack of proper service may 

file a motion under section 473.5 on the ground that “service of a summons has not 

resulted in actual notice to a party in time to defend the action.” (See Ellard, at p. 547;

Trackman v. Kenney (2010) 187 Cal.App.4th 175, 179-180 (Trackman).) To obtain 

relief under section 473.5, the defendant must provide an affidavit showing his lack of 

actual notice was not caused by inexcusable neglect or avoidance of service. (§ 473.5, 

subds. (b) & (c); Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319 (Anastos).)3

Though a motion to set aside a default judgment under section 473.5 “ ‘is 

addressed to the sound discretion of the trial court’ ” (Anastos, supra, 118 Cal.App.4th at 

p. 1318), the underlying question of whether the judgment is void for improper service is 

one of law we review de novo. (Trackman, supra, 187 Cal.App.4th at p. 182; Cruz v. 

Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.) To the extent the facts are in 

conflict, we uphold the trial court’s express or implied factual determinations so long as 

they are supported by substantial evidence. (Giorgio v. Synergy Management Group, 

LLC (2014) 231 Cal.App.4th 241, 247; Strathvale Holdings v. E.B.H. (2005) 126 

 

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 A defendant may also challenge a judgment as void due to improper service 

under section 473, subdivision (d), though defendant has not invoked this statute as a 

basis for relief. (See Trackman, supra, 187 Cal.App.4th at p. 180; Ellard, supra, 94 

Cal.App.4th at p. 544.) 
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Cal.App.4th 1241, 1250.) “This standard applies equally to oral or documentary 

evidence. [Citation.] ‘When an issue is tried on affidavits, the rule on appeal is that 

those affidavits favoring the contention of the prevailing party establish not only the facts 

stated therein but also all facts which reasonably may be inferred therefrom, 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.” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 

1412 (Zirbes).) 

In this case, the Department served defendant under section 415.20, subdivision 

(b), which authorizes substitute service in lieu of personal delivery: “If a copy of the 

summons and complaint cannot with reasonable diligence be personally delivered to the 

person to be served, . . . a summons may be served by leaving a copy of the summons and 

complaint at the person’s dwelling house, usual place of abode, usual place of business, 

or usual mailing address other than a United States Postal Service post office box, in the 

presence of a competent member of the household or a person apparently in charge . . . 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 by first-class mail, postage prepaid to the 

person to be served at the place where a copy of the summons and complaint were left.” 

Department submitted proofs of service by a registered process server showing 

this procedure was followed at 25 Horseshoe Court when the process server, after several 

attempts to serve defendant personally, left the summons and complaint with defendant’s 

father on November 13, 2012, and then mailed defendant a copy of the same. This gave 

rise to a rebuttable presumption of proper service. (Floveyor Internat., Ltd. v. Superior 

Court (1997) 59 Cal.App.4th 789, 795.)

Defendant argues service was ineffective because the evidence does not support a 

finding that his parents’ home at 25 Horseshoe Court was an appropriate address for 

substitute service. Even if defendant no longer resided with his parents at that address, 

Department presented verifications from the United States Postal Service that mail was 

being delivered to him there. From these verifications, it can reasonably be inferred 25 

Horseshoe Court was defendant’s “usual mailing address” for purposes of section 415.20, 
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subdivision (b). This conclusion is corroborated by the letter from defendant’s former 

employer stating defendant’s last known mailing address as of 2009 was 25 Horseshoe 

Court. While the letter from the employer did not itself demonstrate defendant was still 

receiving mail there in 2012, when substitute service was made, it tended to impeach the 

declaration by defendant’s father stating defendant has not lived at 25 Horseshoe Court 

since 2005 and did not regularly receive mail there. 

Because the record contains substantial evidence that 25 Horseshoe Court was 

defendant’s usual mailing address, we need not determine whether substantial evidence 

supports a finding defendant also resided at that address, or whether the evidence of 

DMV records was admissible or sufficient to support such a finding. (Compare Zirbes, 

supra, 187 Cal.App.3d at pp. 1415-1417.) A “usual mailing address” may include the 

address where a defendant resides or does business, but is not limited to such locations. 

(See Ellard, supra, 94 Cal.App.4th at pp. 545-546; Hearn v. Howard (2009) 177 

Cal.App.4th 1193, 1202 [substitute service proper on private post office box].) Substitute 

service was proper at 25 Horseshoe Court, the resulting default judgment entered against 

defendant was not void, and the court did not err in denying the motion to quash service. 

Having concluded defendant was properly served under section 415.20, we next 

consider whether the trial court abused its discretion in denying the motion to set aside 

the default and default judgment under section 473.5 on the ground he lacked actual 

notice. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter 

Group 2014) ¶5:420, p. 5-104.3 (rev. #1, 2014) [trial court has discretion to set aside a 

default judgment against a properly served defendant who lacks actual notice].) It did 

not.

As a prerequisite to obtaining relief under section 473.5, a moving party must 

submit “an affidavit showing . . . that the party’s lack of actual notice in time to defend 

the action was not caused by his or her avoidance of service or inexcusable neglect.” 

(§ 473.5, subd. (b).) Defendant filed a reply declaration stating he did not reside at 

25 Horseshoe Court and “[t]he purported substituted service on me through my father did 

not in fact result in my having any knowledge of the summons and petition,” but that 
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declaration did not include any facts showing defendant had not avoided service and had 

not acted with inexcusable neglect. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 

852, 862 [§ 473.5 motion properly denied where defendant’s affidavit stated only that he 

had not personally received the complaint and did not show lack of inexcusable neglect].)

The evidence submitted by Department strongly suggested defendant was avoiding 

service in February 2012 by hiding from the process server at 2249 Armada Way (where 

he claimed in his declaration to have lived since 2010) and having the woman who lived 

there (whom he apparently married) tell the process server he did not have any 

connection to that address. The equities of this case do not support relief under section 

473.5 and the trial court did not abuse its discretion in denying the motion.

Because we conclude the trial court properly denied defendant relief from the 

default and default judgment, we need not address the Department’s various arguments 

concerning the applicability of Family Code section 3691 and its effect on the court’s 

power to grant equitable relief from default in this case. 

III. DISPOSITION

The order denying defendant’s motion to set aside the default and default 

judgment and motion to quash is affirmed. Costs on appeal are awarded to Department. 

NEEDHAM, J.

We concur.

SIMONS, Acting P.J.

BRUINIERS, J.