County of Shasta v. Caruthers

• Decision Date: 29 December 1994
• Docket Number: No. C016683,C016683
• Citation: 31 Cal.App.4th 185,37 Cal.Rptr.2d 23
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 31 Cal.App.4th 185 31 Cal.App.4th 185 The COUNTY OF SHASTA, Plaintiff and Appellant, v. Timothy Leo CARUTHERS, Defendant and Respondent.

Page 23

37 Cal.Rptr.2d 23

Previously published at 31 Cal.App.4th 185

31 Cal.App.4th 185

The COUNTY OF SHASTA, Plaintiff and Appellant, v. Timothy Leo CARUTHERS, Defendant and Respondent.

No. C016683.

Court of Appeal, Third District, California.

Dec. 29, 1994.

Rehearing Granted Jan. 30, 1995.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Carol Ann White, Statewide Child Support Coordinator, Mary Jane Hamilton, Deputy Atty. Gen., for plaintiff and appellant.

Suzy C. Moore, San Diego, for defendant and respondent.

PUGLIA, Presiding Justice.

This appeal presents the question whether an alleged father can "buy out" his duty to support his minor child by a "settlement" with the child's mother. Defendant, the alleged father, paid Regina Todrzak, the mother, $15,000 in consideration for which Regina signed a covenant not to sue and dismissed with prejudice her pending paternity action against defendant.

This appeal is from the judgment in a later action against defendant brought by the Shasta County District Attorney (plaintiff) on behalf of the minor child, Savannah, to establish defendant's paternity and obtain an order for child support payable through the district attorney's office. (Fam.Code, § 4002; Welf. & Inst.Code § 11350.1, 11475.1 [see also former Civ.Code, §§ 196a, 248; stats. 1992, ch. 162, § 2].) Defendant answered and, alleging the previous settlement and dismissal with prejudice, pleaded collateral estoppel, i.e., "issue preclusion" as an affirmative defense. Thereafter, defendant's motion for summary judgment, based on issue preclusion, was granted by the trial court. Plaintiff appeals from the ensuing judgment. We shall reverse.

California law provides that every child has a right to support from both parents. (Fam.Code, §§ 3900, 3901 [former Civ.Code §§ 196, 196a, 242].) A child has rights independent of its mother, including the right to establish a parent-child relationship with its father and to enforce the father's duty of support. (Fam.Code, §§ 4000, 7600 et seq. [former Civ.Code, §§ 196a, 7000 et seq.].) The trial court's ruling that the underlying action is barred by the settlement and judgment of dismissal in the earlier action between Regina and defendant is contrary to California law prohibiting a parent or guardian from unilaterally compromising a child's right to parental support. (Everett v. Everett (1976) 57 Cal.App.3d 65, 69, 129 Cal.Rptr. 8 (hereafter Everett ); Fernandez v. Aburrea (1919) 42 Cal.App. 131, 132, 183 P. 366; see also Straub v. B.M.T. by Todd (Ind.App.1993) 626 N.E.2d 848, 852.) Moreover, the trial court's order conflicts with Savannah's due process right to a full and fair opportunity to establish that defendant is in fact her father, an issue left unresolved by the settlement and dismissal with prejudice in Regina's action. (See Fam.Code § 7570, subd. (a) [former Evid.Code, § 621.1] ["There is a compelling state interest in establishing paternity for all children."]; see also Mills v. Habluetzel (1982) 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770; Ruddock v. Ohls (1979) 91 Cal.App.3d 271, 277-278, 154 Cal.Rptr. 87 [the establishment of the parent-child relationship is the most fundamental right a child possesses].)

Savannah was born on November 28, 1986. At the time of Savannah's birth, Regina was married to, but separated from, Frank Upton.

In March 1987, Regina filed an action against defendant in Los Angeles County Superior Court (the Los Angeles action) pursuant to the Uniform Parentage Act. (Fam.Code, § 7600 et seq. [former Civ.Code, § 7000 et seq.].) Defendant answered and denied paternity and the duty to support. Defendant alleged Upton was the father of Savannah and, in any event, Regina had engaged in intercourse with unknown others "between June 1, 1985 and June 1, 1986...." The Los Angeles Superior Court directed defendant to pay support pendente lite in the amount of $100 per month.

Both Regina and defendant were represented by counsel. In April 1990, defendant informed his attorney that he and Regina had opened negotiations to settle the action. In August 1990, Regina released her attorney and substituted herself in propria persona. Regina and defendant signed a seven-page document drawn up by defendant's attorney entitled "Mutual General Release and Settlement Agreement" (the agreement). In the agreement defendant promised to pay Regina $15,000, $10,000 to be paid immediately and $1,000 each year thereafter for five years beginning in August 1991. In return, Regina promised to dismiss her paternity suit with prejudice and not to refile the action. ¹ The issue of paternity was left unresolved by the settlement agreement.

Regina received a check for $10,000 together with a letter from defendant's counsel reciting the parties' agreement that "upon timely payment of the balance, the case would be closed and all rights terminated." In September 1990, Regina filed a request for dismissal with prejudice and judgment was entered accordingly. In July 1991, Regina received a $1,000 payment from defendant.

The action underlying this appeal was filed in June 1992 following Regina's request to plaintiff district attorney for child support services. Regina named defendant as Savannah's father on a confidential form she was required to complete by plaintiff's family support division. Regina claimed she had not had sexual relations with anyone other than defendant during the period when Savanna was conceived.

Defendant demurred to the complaint on the ground plaintiff lacked standing to bring the action because of the dismissal with prejudice of the Los Angeles action. The trial court overruled the demurrer without prejudice to defendant's right to raise the issue in his answer.

Defendant answered, denied paternity and the duty to support and pleaded collateral estoppel as an affirmative defense. Defendant then moved for summary judgment, contending "the doctrine of collateral estoppel precludes relitigation of the paternity issue" and plaintiff "lacks standing to establish paternity ..." Defendant argued Savannah is the real party in interest in both of the actions to establish paternity and support and, as representative plaintiffs, Regina and plaintiff are in privity.

In granting defendant summary judgment, the trial court concluded the Los Angeles action and the underlying action present the identical issue of paternity, and because the Los Angeles action was dismissed with prejudice, plaintiff is precluded from prosecuting this paternity/support action on behalf of Savannah.

We first address defendant's contention the underlying action is precluded by the dismissal with prejudice. Generally collateral estoppel precludes relitigation of an issue that has been litigated in a prior action between the same parties on a different cause of action. (7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, § 193, pp. 627-628.) The doctrine has no application here, because the issue of paternity was not litigated or determined in the Los Angeles action.

Collateral estoppel is simply one aspect of the doctrine of res judicata, which operates to bar a second action on the same cause of action between the same parties. (Ruddock v. Ohls, supra, 91 Cal.App.3d at p. 279, 154 Cal.Rptr. 87 (hereafter Ruddock ).) Res judicata does not apply here because Regina and the district attorney are different parties and there is no privity between them. Moreover, as to the Los Angeles action, there was no privity between Regina and Savannah because the interests of the child and her unwed mother were not identical. (See Johnson v. Hunter (Minn.1989) 447 N.W.2d 871, 874 and authorities cited therein; In re Parentage of Mayberry (1991) 222 Ill.App.3d 1008, 165 Ill.Dec. 354, 356, 584 N.E.2d 533, 535.) In any event, "[t]he parent-child relationship ... is traditionally excluded from privity notions for res judicata purposes." (Johnson v. Hunter, supra, 447 N.W.2d at p. 874.)

More importantly, Savannah was not a party to the Los Angeles action and thus her interests were not fully protected and considered there. As a result, she did not have a full and fair opportunity to litigate the issue of paternity in that action. Accordingly, Savannah is not bound by the settlement agreement and the dismissal with prejudice. (Cf. Johnson v. Hunter, supra, 447 N.W.2d at p. 876 ["The opportunity to be heard in a prior action [ ] is an underlying policy reason allowing the application of res judicata."]; In re Parentage of Mayberry, supra, 165 Ill.Dec. at p. 356, 584 N.E.2d at p. 535; J.E. v. N.W.S., by S.L.S. (Ind.App.1991) 582 N.E.2d 829, 830-832 [Where the child was not made a party to a prior paternity action, dismissed with prejudice for lack of prosecution, res judicata is not applicable because the earlier action was not fully litigated].)

Regina brought the prior paternity action against defendant in her own name, pursuant to the Uniform Parentage Act (UPA) (Fam.Code, § 7600 et seq. [former Civ., Code, § 7000 et seq.].) Family Code section 7635, subdivision (a) [former Civil Code section 7008] provides: "The child may, if under the age of 12 years ... be made a party to the action. If the child is a minor and a party to the action, the child shall be represented by a guardian ad litem appointed by the court."

Savannah was not a party to the Los Angeles action. Had she been, a guardian ad litem would have been required to be appointed for Savannah. (Fam.Code, § 7635, subd. (a).) More importantly, the guardian ad litem would not have been authorized to settle or compromise a claim on behalf of Savannah without court approval. (Code of Civ.Proc., § 372; Fam.Code, § 6601; Prob.Code, § 3500, subds. (a), (b).) Because Savannah was not named as a party and was unrepresented in the Los Angeles action, and because the issue of parentage has never been litigated, it is obvious Savannah has not had any opportunity, let alone an adequate opportunity, to be heard...