Filed 10/23/14 R.M. v. A.C. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

R.M., Respondent,

v. A.C., Appellant. D064834

(Super. Ct. No. ED86667)

APPEAL from a judgment of the Superior Court of San Diego County, Darlene A. White, Commissioner. Affirmed. Dunne & Dunne and Anthony J. Dunne for Appellant. Victor Mordey for Respondent. In 2009, A.C. gave birth to S. R.M. is S.'s biological father. A.C. allowed R.M. to regularly see S. for several years, but when A. C. stopped allowing him to visit, R.M. filed this action seeking to establish paternity a nd for orders granting him joint custody and reasonable visitation. In conj unction with his action, R.M. requested and obtained an order for DNA testing that revealed he was S. 's biological father. However, shortly after R.M. filed this action, A.C. married Javier C., and she opposed R.M. 's application on the2 grounds that Javier should be declared the presumed father of S. The court's judgment found R.M. was S.'s legal fa ther, entered a judgment declar ing A.C. and R.M. are S.'s parents, and set the matter for further consid eration of the custody and visitation issues. A.C. appeals the judgment. She contends that, under Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850 ( Gabriel P. ), the court was sua sponte required to join Javier as an indispensable party and it was reversible error to enter the judgment in Javier's absence. A.C. also argues the court erred wh en it did not consider whether she and Javier were putative spouses and/or common law sp ouses at the time of S.'s conception and birth within the meaning of Family Code 1 section 7540.
I FACTUAL BACKGROUND R.M. met A.C. at a dance club in the spring of 2008 and began a romantic relationship that lasted until ea rly 2009, during which time sh e became pregnant with S. During this period, A.C. never mentioned she was in a relationship with Javier, much less claimed she was married to him. However, ab out three months before S.'s birth, A.C. told R.M. that, while she had been seeing R.M ., she had also been seeing the father of her other child, and she and this ma n had decided to get back to gether. Shortly thereafter, A.C. disappeared.

1 All further statutory references are to the Family Code unless otherwise specified.3 A few months after S.'s birth, R.M. wa s able to find A.C., and they resumed a friendly relationship. 2 During 2010 and 2011 R.M. wa s able to regularly visit and develop a relationship with S., albeit without Javier's knowledge, although there were periods of time during which A.C. did not ma intain contact with R.M. However, after A.C. again unilaterally terminat ed his ability to visit S. in late 2011, R.M. filed the present action in early 2012. 3 During this time, R.M. believed Javier was A.C.'s "boyfriend."
II PROCEDURAL BACKGROUND A. The Petition and DNA Testing Order R.M. filed the present ac tion in February 2012 against A.C. seeking an order establishing R.M. was S.'s parent, and fo r orders granting R.M. joint custody and reasonable visitation. A.C. op posed R.M.'s petition, alleging Javier should be considered S.'s father because Javier rais ed S. since his birth, and this social relationship is more important than the biological relationship. R.M. subsequently requested an order fo r DNA testing. A.C. opposed the motion, asserting she and Javier were married in Mexico in 2000 and S. was born during that marriage, which raised the co nclusive presumption under se ction 7540 that Javier was S.'s father. A.C. also asse rted Javier had raised S. from birth within the presumption

2 Around the same time, Ja vier learned S. was not his child. However, he and A.C. went to counseling and he held out S. as his child.
3 A few months after R.M. filed this acti on, A.C. and Javier married in California.4 provided by section 7611, subdivision (d). At a contested hearing, R.M. asserted the conclusive presumption under section 7540 ha d no application because (1) the document submitted by A.C. to prove the existence of the Mexican marriag e should be excluded from evidence because of improp er authentication, and (2) expert testimony would show the document submitted by A.C. to prove the existence of the Mexican marriage was a forgery. After hearing the evidence concerning the alleged Mexican marriage, the court concluded A.C. had not satisfi ed her burden of showing sh e and Javier qualified for the conclusive section 7540 pres umption, and granted R.M.'s request for DNA testing. The results of those tests confirmed R.M. was S.'s biological father. B. The Paternity Hearing The court subsequently held a contested trial on whether to grant R.M.'s request for a declaration that he was S.'s father. A.C. opposed R.M.'s request to be declared S.'s father by resurrecting her claim that Javier wa s conclusively presumed to be S.'s father under section 7540, and by reasserting Javier should be deemed S. 's father under the presumption provided by section 7611, subdivision (d). Af ter noting the absence of proof of a valid marriage precluded a paternity judgment under sec tion 7540 declaring Javier to be S.'s father, the court observed that Javier (despite knowledge of the pending proceedings and having ample opportunity) had not elected to intervene in the action to seek a declaration of paternity, and expressed doubts it could declare Javier to be S.'s father without Javier's voluntary participation in the proceedings. The court then heard the evidence and solicited the pa rties' legal arguments on R.M.'s petition. A.C. argue d the court should deny R.M. 's petition and instead declare5 Javier to be S.'s father. She also assert ed, without citation to authority, the court sua sponte could order Javier joined as a party to declare him S.'s father. R.M. asserted he was entitled to a declaration that he was S.'s fa ther and, because Javier had elected not to intervene despite R.M.'s attempts on many occasions to aler t Javier that he would need to intervene if he wished to assert a competing right to be adjudged S.'s fa ther, there was no person whose competing interest in being declared S.'s fath er was superior to R.M.'s interest. The court's statement of d ecision found R.M. was the biological father of S., had held S. out as his own child si nce before birth, exercised visitation when allowed by A.C., and had continued to seek a re lationship with him. Becaus e Javier had ample notice and opportunity to assert his legal rights but did not do so, the court found there was neither a competing father nor any pres umption that would prevent R.M. from being adjudicated S.'s father. The court entered a judgment of paternity declaring R.M. to be S.'s father. A.C. appeals.
III ANALYSIS A. The Indispensable Party Claim A.C. argues the court did not have the au thority to enter judgment declaring R.M. to be S.'s father because the court was re quired to, but did not, order Javier joined pursuant to Code of Civil Procedure section 3 89 as an indispensable party. A.C. argues Javier was an indispensable party under Gabriel P. , supra , 141 Cal.App.4th 850. She alternatively argues Javier was an indispen sable party because he would have standing6 (as a presumed parent under § 7611) to purs ue a petition to estab lish his own parental relationship with S., thereby riski ng multiple inconsistent judgments. We are not persuaded by A. C.'s arguments, for several reasons. First, we are convinced Gabriel P. provides no basis for reversing th e judgment in this case. In Gabriel P. , the biological father filed an action ag ainst the mother seeking a declaration of paternity for Seanna, but did not join moth er's boyfriend, who had previously executed a valid "voluntary declaration of paternity" as to Seanna under section 7571 et seq. ( Gabriel P., supra, 141 Cal.App.4th at p. 855.) A valid voluntary declaration of paternity, unless set aside, has the same for ce and effect as a judgment of paternity by a court (§ 7573) and may not be set aside exce pt as provided under section 7575, which specifically requires the court to consider (a mong other things) "[t]he request of the man who signed the voluntary declaration that th e parent-child relationship continue." ( Id . at subd. (b)(1)(D).) The trial court in Gabriel P. set aside the voluntary declaration of paternity, based on test results indicating the b oyfriend was not the biological father. The appellate court reversed, concluding the boy friend was a necessary party to an action seeking to set aside a document that has th e same force as a judgment of paternity, because (1) County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337, 1345 held a voluntary declarant "must be made a pa rty to any proceeding to set a voluntary declaration aside," and (2) th e statute compels a court to consider the relationship between the voluntary declarant and the child when considering whether to set aside a voluntary declaration. ( Gabriel P., at p. 865.) Here, there is no voluntary declaration by Javier having the same effect as a competing judgment as to Javier's paternity of S., and7 no statutory or decisional mandate that Javier be joined in an action seeking to declare R.M.'s paternity of S., which renders Gabriel P.'s discussion of necessary parties inapposite to the present action. A.C. also asserts Javier was an indi spensable party because he would have standing to seek a judgment establishing his own parental relationship with S., thereby risking multiple inconsistent judgments. Although Javier may have been a "proper" party, "[t]hose who may be 'proper' parties to a controversy are not always necessary or indispensable parties" ( Jones v. Feichtmeir (1949) 95 Cal.App.2d 341, 345), and the mere fact a judgment might indirectly affect the in terests of a third person does not make that third person an indispensable party. ( Las Virgenes Educators Assn. v. Las Virgenes Unified School Dist. (2001) 86 Cal.App.4th 1, 8-9.) Although Javier may be indirectly affected by the judgment that R.M. was a pa rent of S., that did not make Javier an indispensable party to R.M.'s action. 4 B. The Marriage Claim A.C. argues the trial court erred when it did not consider whether the section 7540 conclusive presumption, whic h could have barred R.M. fro m his requested relief (cf. Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233), could have been tri ggered by virtue of A.C. and Javier being either common law spouses under the laws of Mexico (within

4 Indeed, A.C.'s claim appears to be that Ja vier's interest as a presumed father under section 7611 was necessarily term inated by the declaration that R.M. was a parent of S. However, under section 7612, subdivision (c ), "a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detr imental to the child." Thus, under the statutory scheme, a declaration that R.M. is a parent of S. does not preclude Javier from seeking to establish that he is also a parent of S.8 the meaning of § 308) or pu tative spouses (within the meaning of § 2251). However, it does not appear that A.C. raised either of these arguments below, and each of these newly-minted arguments appears to involve fa ctual questions requiring resolution by the trier of fact. (Cf. In re Marriage of Smyklo (1986) 180 Cal.App.3d 1095, 1097-1099 [determination of validity of a common la w marriage reviewed under substantial evidence standard]; In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 756-757 [determination of putative spouse status revi ewed under substantial evidence standard], disapproved on other grounds in Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1126, 1128, fn. 12.) Because a party may not a ssert for the first time on appeal theories that turn on factual questions no t raised and resolved below ( Strasberg v. Odyssey Group,
Inc. (1996) 51 Cal.App.4th 906, 920; McDonald's Corp. v. Board of Supervisors (1998) 63 Cal.App.4th 612, 617-618), we decline to consider either of these new theories.
DISPOSITION The judgment is affirmed. R. M. is entitled to costs on appeal.

McDONALD, J. WE CONCUR:

McCONNELL, P. J.

AARON, J.