COUNTY OF LOS ANGELES v. WARMOTH (1998)

 In describing the role of the U.S. Attorney in a criminal case, the U.S. Supreme Court stated:  “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all;  and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.   As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”  (Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.)   This statement of the duties of a prosecutor in a criminal case has been adopted and restated many times as the law of California.  (See, e.g., 5 Witkin and Epstein, Cal.Criminal Law (2d ed.   1989) § 2896;  see also Imbler v. Pachtman (1976) 424 U.S. 409, 427 fn. 25, 96 S.Ct. 984, 993 fn. 25, 47 L.Ed.2d 128 [discussing duties of a Los Angeles County Deputy District Attorney, noting that even after a conviction a prosecutor is bound by the ethics of his office to inform appropriate authority about information that casts doubt upon the correctness of the conviction];  People v. Gonzalez (1990) 51 Cal.3d 1179, 1261, 275 Cal.Rptr. 729, 800 P.2d 1159 [quoting Imbler ].)  In People v. Franklin (1961) 194 Cal.App.2d 23, 29-30, 14 Cal.Rptr. 375, the court stated the concept this way:  “The role of the prosecution far transcends the objective of high scores of conviction;  its function is rather to serve as a public instrument of inquiry and, pursuant to the tenets of the decisions, to expose the facts.   To the extent that the prosecution departs from these purposes, we believe that it creates unnecessary difficulties in the administration of justice.”

The instant case concerns not a criminal prosecution, but instead an enforcement action brought by the District Attorney's office to recover welfare payments paid to a young woman with a child.   The defendant and appellant is the alleged father of the child.   The District Attorney's office seeks not to imprison or otherwise punish appellant, but instead to impose a multi-year monetary liability upon him until the child reaches the age of majority.   No authority has been cited, however, for the foundational proposition implicitly urged by the District Attorney's office:  that in a case of this type the proper goal of the District Attorney's office is simply to win and to recover money, and that the District Attorney's office here is not bound by the duty to seek justice which applies in a criminal case.   Recovering child support payments is a laudable goal (convicting criminals is also a laudable goal), but the record in this case suggests that someone in the District Attorney's office has lost sight of the paramount duty to seek justice.

Although the precise chronology of each event is not completely clear, appellant claims the following, most of which appears to be uncontested:  appellant and a woman named Teresa had an “ongoing friendship” which “included occasional sexual relations.”   The two then lost contact for a period.   At a later time, the two made contact again.   Appellant then learned that Teresa had given birth to a child.   Appellant claims that Teresa led him to believe that he was the father.   He accordingly began to give money directly to Teresa, and to visit the child.   Unknown to appellant, Teresa was receiving AFDC (Aid to Families with Dependent Children) during this period.   Teresa apparently did not notify the welfare authorities that appellant was making payments to her, but apparently did identify appellant as the father.   At some point, the District Attorney's office filed suit to impose an obligation upon appellant to reimburse the County for the AFDC paid to Teresa.   First a summons and complaint, and later a request for entry of default, were mailed to appellant's address.   Appellant does not deny receiving them.   At another point in this scenario, appellant, while having custody of the child during a visitation, had himself and the child tested by a DNA laboratory.   According to appellant, the DNA tests rule out appellant as the father.   At some point during this period, appellant discussed with Teresa the action filed by the District Attorney's office, and Teresa advised appellant that she would ask the District Attorney's office not to pursue appellant for child support.   Apparently relying upon the assurances from Teresa and the results of the DNA test, appellant (a young man unrepresented by counsel) did nothing to respond to the District Attorney's action.   A judgment was consequently entered by default.   The judgment declared appellant to be the father and imposed a monthly child support payment on him.   After judgment, the District Attorney's office did nothing to enforce its award for about two years.   The District Attorney's office then commenced an enforcement action against appellant, seeking payment of arrearages and threatening appellant with loss of his driver's license.   At this point, appellant retained counsel and filed a motion to vacate the judgment and allow a defense.   Appellant's motion was framed somewhat generally, but in substance pleads equitable grounds.   The District Attorney's office opposed.   At the hearing, the court refused to consider the DNA evidence, and instead denied the motion to vacate because appellant “had the full knowledge of the proceedings and failed to take any action to protect his interests in this matter.”   Appellant appeals.   The District Attorney's office responds, seeking affirmance of the default judgment and of the trial court's refusal to consider the DNA evidence.

As a consequence of the events noted, appellant is subject to a judgment that he is the father of the child, even though that is not true if the DNA test is accurate.   Although this judgment of parentage is binding on appellant, it might not be binding on Teresa, for she was not a party to the District Attorney's action which resulted in the judgment of parentage.   If the DNA findings are correct (or, perhaps, simply because appellant has claimed or admitted that the DNA findings are correct), Teresa might now be able to obtain a judgment that appellant is not the father.   Thus appellant could be denied all parental rights concerning visitation, religious instruction, medical care, education, etc., while still being bound-by virtue of the default judgment obtained by the District Attorney's office-to pay support arrearages plus continuing support for the child until the child reaches the age of majority.   Moreover, the amount of monthly support payable will presumably be subject to adjustment as the financial needs of the child and the financial abilities of appellant develop.

Appellant thus has the worst of all worlds-the duties of a parent but maybe not the benefits-while the District Attorney's office may have recovered money from an innocent man.   Under these circumstances, a District Attorney's office mindful of the proper objectives of the office could reasonably be expected first to ascertain whether the DNA test results presented by appellant are correct and, if they are, then to stipulate to vacation of the judgment.   That the District Attorney's office has chosen not to do this, but instead seeks to defend and enforce its judgment, indicates that someone has lost sight of the proper objectives of the office.   For this reason, we began this opinion with a review of the authorities defining the proper nature of the duties of a District Attorney's office.   Having thus placed the issue into its proper context, we now turn to a discussion of the law of extrinsic fraud and mistake.

 “Apart from any statutory authority, a court has inherent, equitable power to set aside a judgment on the ground of ‘extrinsic fraud or mistake.’ ”  (Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 1997) § 5:435.)   The term “extrinsic fraud or mistake” is given a broad interpretation and covers almost any circumstance by which a party is deprived of a fair hearing.  (Id. at § 5:438.)   There need not be “fraud” in the tort sense of fraud.  (Ibid.) “Extrinsic mistake” refers generally to circumstances extrinsic to the litigation that have cost a party a hearing on the merits.  (Id. at § 5:449.)

 In order to obtain relief, a party in default must show three elements:  1) a meritorious defense, 2) a satisfactory excuse for not presenting the defense earlier, and 3) diligence in seeking to set aside the default.  (Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial, supra, § 5:435.)   The limited facts that appellant “had full knowledge of the proceedings and failed to take any action to protect his interests in the matter,” the sole grounds relied upon by the trial court to deny appellant's motion, are not alone sufficient to support denial of equitable relief.   More must be considered than merely that appellant at some earlier time received notice of the proceedings and, for some reason, chose not to act at that time.

 Element one here, a meritorious defense, could be satisfied by the DNA evidence, if that DNA evidence is accurate.

Element two, an excuse for not presenting the evidence earlier, might be satisfied several ways.   First, appellant contends that he relied on Teresa's assurances that she would resolve the claims advanced by the District Attorney's office.   Presumably it was Teresa who caused the District Attorney's office to file the claim in the first instance by alleging that appellant was the father.   If the District Attorney's office initially believed Teresa and relied upon her to institute the suit, it could be found reasonable that appellant (an unrepresented young man) would believe that the District Attorney's office would similarly believe Teresa's new information that appellant was not the father.   The record shows that Teresa sent to the District Attorney's office the letter attached to appellant's motion as Exhibit A. In that letter, Teresa states “I MAY HAVE LED MR. WARMOTH TO BELIEVE THAT RESPONDING TO THE SUMMONS WAS NOT NECESSARY.”   Second, for part of this scenario, appellant believed that he was in fact the father.   Teresa so informed him, and appellant had reasonable cause to believe her.   He knew that he had sexual intercourse with her, and he presumably did not know that any other man had sexual intercourse with her at or about the time of the child's conception.   A man acting on a mistaken belief in parentage might reasonably choose not to defend (in fact many would consider this the more honorable course) simply because he believes he is in fact the father and hence is morally responsible for the child's welfare.   Later, appellant allegedly discovered by the DNA testing that he was not the father.   This alone could be sufficient to support equitable relief, absent some equitable defense such as laches, estoppel, etc., of which there is no evidence here.   Third, when the District Attorney's office became aware that appellant was excluded by DNA testing (whether the DNA test results are accurate is not conclusively established in the record), appellant could reasonably have expected a District Attorney's office operating according to the duty to seek justice explained in cases such as Berger, supra, not to seek to impose an unjust judgment upon him.   Exactly when appellant told Teresa about the DNA evidence, and when appellant might reasonably have believed that Teresa told the District Attorney's office is not clearly developed in the record.¹

Element three, diligence in seeking to set aside the default, might be satisfied by the factors noted above plus the factor of the delay by the District Attorney's office in seeking to enforce the judgment.   That delay could reasonably have caused appellant to believe that the District Attorney's office had abandoned the matter in light of the DNA evidence.   The record reflects that appellant acted to seek relief promptly after the long-delayed attempt by the District Attorney's office to enforce the judgment.   Appellant might have reasonably believed that the District Attorney would not attempt to enforce the judgment for the reasons noted above.

The record thus reveals potential grounds on which all three of the necessary elements for equitable relief might be satisfied in this case.   These grounds were not enumerated for the trial court as explicitly as they are set forth here but, realistically speaking, that is understandable.   Appellant is a young man with a $298 per month child support judgment against him (presumably subject to modification as circumstances change) plus a parentage judgment.   By the standards of many lawsuits, not a lot of money is involved.   Moreover, appellant may be a man of modest means judging from the amount of child support awarded against him, and this may further account for the meager briefing filed.   A trial court in such a case, perhaps confronted with this issue on a busy calendar and presented with only cursory briefing, bears a considerable burden when trying to decide in accordance with applicable principles of equity.   This case thus confirms the message of People v. Franklin, supra, 194 Cal.App.2d 23, 29-30, 14 Cal.Rptr. 375:  if a District Attorney's office fails to act as a public instrument of inquiry with the goal of exposing the true facts, “it creates unnecessary difficulties in the administration of justice.”

The order denying appellant's motion to set aside the default judgment is vacated.   The matter is remanded for such further hearings consistent with this opinion as may be necessary.   Appellant to recover costs on appeal.

FOOTNOTES

1.   The record does reflect that the District Attorney's office was informed of the DNA test results at least as of the time of appellant's motion to vacate.   The opposition then filed in the trial court by the District Attorney's office, however, does not mention the DNA information and instead is confined to the procedural argument that appellant should have responded to the complaint.   The appellate brief filed on appeal by the District Attorney's office is similar;  it mentions the DNA evidence only in the course of dismissing appellant's action in obtaining DNA tests as “inconsistent” with his statement that he trusted Teresa because of their long-standing relationship.   These briefs suggest that the District Attorney's office was focused exclusively on defending its default judgment, rather than on determining whether appellant's protestations of innocence were correct.   Thus although appellant might have reasonably expected the District Attorney's office to respond to the DNA evidence by investigating or by dismissing its complaint, the record suggests that such a response was unlikely no matter when the DNA information was supplied to the District Attorney's office.   There consequently seems to be little basis for complaint about any delay in conveyance of the DNA evidence to the District Attorney's office.

ZEBROWSKI, Associate Justice.

FUKUTO, Acting P.J., and NOTT, J., concur.