DENISE v. Appeal of Osborne C., Petitioner and Appellant. (1983)

Appellant is, admittedly, the natural father of Denise C., now aged about three years.   Denise was born in a county hospital, and her mother died at birth, again admittedly due to fault attributable to the county.   A wrongful death action was filed against the county and, after some maneuverings not necessary here to outline, Denise's aunt, Cherry P., was appointed as guardian-ad-litem for Denise and, in that capacity, entered into a settlement with the county.   After a hearing, the settlement was approved by a judge of the superior court and judgment was duly entered pursuant to the terms of the settlement.

Appellant, the father, was kept in ignorance of those proceedings, except that he did consent to the appointment of Cherry as guardian of the person of Denise.¹  At all times, appellant has paid to Cherry money for the support of Denise and has had weekend visitation rights.

Upon discovery of the litigation and its settlement, appellant moved in the superior court to have himself substituted for Cherry as guardian-ad-litem and to vacate the judgment and its preceding order approving the settlement.   The motions were denied and this appeal followed.

The county has moved to dismiss the appeal on the ground that there are no appealable judgments and that appellant, being the natural and not the legal father, has no standing to appeal.   We deny the motion.

 We agree with the county that the refusal to substitute guardians-ad-litem is not, by itself, an appealable order, because it is not listed in the statutory provisions setting out what orders and judgments are appealable.   However, where as here, such an order is inherently involved in another order which is appealable,² an appellate court can, and will, decide the otherwise nonappealable issue.  (In re Estate of Emery (1962) 199 Cal.App.2d 22, 18 Cal.Rptr. 86.)

 In order to attack a judgment by motion to vacate, the person making the attack must be:  (1) a party to the record, and (2) have standing to make the attack.   Clearly, appellant was not originally a party to the wrongful death action, not being an heir of Denise's mother.   But a person not originally a party to the record can become such by making a motion to vacate a judgment adversely affecting him.  (6 Witkin, Cal.Procedure (2d ed. 1971), Appeal, § 115, p. 4115.)   Appellant has, thus, satisfied the first prong of the test for appealability.

 As we understand it, the county contends that appellant is not “aggrieved” by the judgment he now seeks to attack because the judgment affects only the rights of Denise.   We cannot accept that argument.   As a natural father, appellant is statutorily obligated to provide support for Denise.   If the amount of the settlement is, or hereafter should prove to be, inadequate for Denise's support, the burden of supplementing the settlement-ordered support will fall on him.   It follows that he is “aggrieved” by a judgment which may not give him as much aid from the tortfeasor as he was entitled to receive.

We do not, by this opinion, hold that in every case involving a tort action on behalf of an illegitimate child, the natural father must be made a party to the settlement negotiations and approval.   We deal here with a natural father, admitted both by himself and by the deceased mother's representatives to be the father, whose whereabouts were known and who (as the proceedings to appoint a guardian of the person show) was available for the service of notice.   In a case not involving those elements, other considerations would be involved which we need not, and do not, consider in this case.

In ruling on the present motion to dismiss, we do not pass on the merits of appellant's appeal.   When we reach that stage it may, of course, appear that the motion to vacate, made under section 473 of the Code of Civil Procedure, is not supported by the showing.   And we recognize that, if a new hearing is eventually ordered on the motion to approve the settlement now involved, it may develop that that settlement is as advantageous to Denise and to her father as could reasonably be secured.   But whether appellant ultimately succeeds in securing a better settlement has no bearing on his right to seek such a result.

The Motion to Dismiss is denied.

FOOTNOTES

1.   Appellant has since been appointed as co-guardian of the person.

2.   It is not denied that an order denying a motion to vacate is an appealable order.

KINGSLEY, Associate Justice.

WOODS, P.J., and McCLOSKY, J., concur.