Judge John J. Kralik, Case 22BBCP00144 2023-04-14 Tentative Ruling

On April 15, 2022, Petitioner Julie Ann Skujins filed a Petition for Change of Name for her child. She proposed a change of name from “Winter Jade Skujins Mikhak” to “Winter Skujins.”

On June 3, 2022, the Court granted the petition and entered the Decree Changing Name.

On December 5, 2022, Bahador Mikhak filed a motion to set aside the judgment due to inadvertence and surprise.

Under the discretionary prong of CCP § 473(b), “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

Bahador Mikhak (“Mr. Mikhak”) moves to set aside the order for Decree Changing Name entered on June 3, 2022 pursuant to CCP § 473(b).

A motion filed pursuant to CCP § 473(b) must be brought within a reasonable time, in no case exceeding 6 months, after the judgment, dismissal, order, or proceeding was taken.

Ms. Skujins argues that the motion was not timely filed within 6 months. (Skujins Decl., ¶13.) She does not provide what the last date to file the motion was in her opposing declaration.

The Court finds that the motion was timely filed. The order for Decree Changing Name was entered on June 3, 2022. Mr. Mikhak filed this motion on December 5, 2022, which is within 6 months of the date of the order. “[A]lthough six calendar months always equals one half year, the number of days contained in six calendar months varies, ranging from 181 to 184 days.” (See Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 604 [“To harmonize sections 6803 and 6804 and eliminate any ambiguity, we construe section 945.6's six-month bar to mean an action must be filed within six calendar months or 182 days, which ever is longer.”].)[1]

In support of the motion, Mr. Mikhak provides his declaration. Mr. Mikhak states that he is the father of Winter Jade Skujins Mikhak (“Winter”) and that at the time Julie Ann Skujins (“Ms. Skujins”) filed the petition, she knew that Mr. Mikhak was the father of Winter and that he had an interest in his daughter. (Mikhak Decl., ¶1.) He states that he was not given notice of the petition or the hearing, though Ms. Skujins knew his address. (Id., ¶2.) Mr. Mikhak states that he did not attend the hearing because he was not aware that it was taking place. (Id., ¶3.) He states that he was a party to another proceeding filed by Ms. Skujins (LASC Case No. 22PDPT00056, Petition to Determine Parental Relationship filed on May 10, 2022), in which Ms. Skujins alleged that Mr. Mikhak was the parent of Winter. (Id., ¶4, Ex. 3.) He states that Case No. 22PDPT00056 was related with a DVRO proceeding between Mr. Mikhak and Ms. Skujins (LASC Case No. 22PRDO00480), and that the parties stipulated on September 6, 2022 that they were the parents of Winter. (Id., ¶5, Ex. 5.) Mr. Mikhak states that as her father, Winter has been a part of his life since birth and shared his surname until Ms. Skujins changed the name by way of this petition. (Id., ¶6.) He states that he wishes Winter to have her name restored with his surname so that they can be a close family. (Id.)

Mr. Mikhak argues that Ms. Skujins omitted his information from the Petition for Change of Name at section 7(e), which asks for the names of known parents. In the Petition, Ms. Skujins only wrote down her own name, but did not include Mr. Mikhak’s name. (See Mot., Ex. 1 [Petition for Change of Name at §7(e)].) He argues that he was not given notice of the Petition pursuant to CCP § 1277(a)(4).[2] Mr. Mikhak argues that he was not given notice of the Petition even though Ms. Skujins knew his address.

In opposition, Ms. Skujins provides her declaration. She states that Mr. Mikhak refused to sign Winter’s birth certificate on January 13, 2020, but he pressured Ms. Skujins to add his last name to her birth certificate though Winter’s birth certificate indicated that her father was unknown. (Skujins Decl., ¶3.) Ms. Skujins states that at the time of she filed the Petition on April 15, 2022, Mr. Mikhak had not expressed interest in Winter’s life and so she filled out the Petition to her best knowledge. (Id., ¶4.) She states that she lives at one of Mr. Mikhak’s real properties and that he filed eviction proceedings against her in 2022. (Id., ¶5.) She states that she needed child support from Mr. Mikhak, such that Mr. Mikhak requested a paternity test in July 2022 and it was determined that he was Winter’s natural father in September 2022—after the name change was already granted. (Id.) Ms. Skujins argues that Mr. Mikhak knew about the name change and even mentioned it at the family court hearing in July 2022, just one month after it was granted, such that he could have filed this motion in a timely manner. (Id., ¶8, Ex. A [7/21/22 Transcript at p.3].)

Mr. Mikhak provides his responsive declaration with the reply brief. He states that he has been with Ms. Skujins at hospital visits (for ultrasounds and OB/GYN visits) since they found out she was pregnant, attended childbirth classes, was present at the hospital when Winter was born, and even took Ms. Skujins and Winter home from the hospital after discharge. (Mikhak Decl. re Reply, ¶1, Ex. 1 [Photographs].) He states that he told Ms. Skujins that he wanted to be a part of Winter’s life and wanted her to have his surname, that he did not pressure Ms. Skujins to give Winter his surname, and that she put his surname for Winter on the birth certificate. (Id., ¶2.) He states that she would not let him sign the birth certificate unless he agreed to marry her. (Id.) He states that in the paternity proceeding, he asked for and was awarded visitation with Winter and that he attempted to exercise as much visitation as possible. (Id., ¶3.) He states that he wishes to have as much contact with her as possible and wants her to have his surname. (Id., ¶4.)

The parties have presented conflicting declarations regarding the facts of Mr. Mikhak’s involvement with Winter. Nevertheless, the Court finds there is substantive merit to granting the motion to set aside the order for Decree Changing Name from “Winter Jade Skujins Mikhak” to “Winter Skujins” as proper notice was not provided by Ms. Skujins to Mr. Mikhak, who is a nonconsenting parent. The Petition did not accurately reflect all known parents of Winter in section 7, such that the Court would be inclined to find that relief would be proper under CCP § 473(d) as well (regarding void orders). Although Ms. Skujins argues that paternity was not yet determined at the time she filed the Petition, she was well aware that Mr. Mikhak was attempting to affirm his status as Winter’s father and that he was an interested party based on his actions in the other proceedings regarding Winter. At this time, the Court finds that the interests of justice would be served by granting the motion so that all interested parties may present their positions on the name change of Winter. Thus, Mr. Mikhak has shown that relief from the order is proper based on his mistake, inadvertence, surprise, or excusable neglect. (CCP § 473(b).)

Bahador Mikhak’s motion to set aside the Decree Changing Name, dated June 3, 2022, is granted. The Court sets an Order to Show Case re: Name Change for May 19, 2023 at 8:30 a.m.

[1] While the Court recognizes that Gonzalez dealt with the timeliness of a Government Code, § 945.6 claim, the case is still instructional on how to compute the dates for claims (or motions) that must be brought within a 6-month time frame.

[2] CCP § 1277(a)(4) states: “If a petition has been filed for a minor by a parent and the other parent, if living, does not join in consenting thereto, the petitioner shall cause, not less than 30 days before the hearing, to be served notice of the time and place of the hearing or a copy of the order to show cause on the other parent pursuant to Section 413.10, 414.10, 415.10, or 415.40. If notice of the hearing cannot reasonably be accomplished pursuant to Section 415.10 or 415.40, the court may order that notice be given in a manner that the court determines is reasonably calculated to give actual notice to the nonconsenting parent. In that case, if the court determines that notice by publication is reasonably calculated to give actual notice to the nonconsenting parent, the court may determine that publication of the order to show cause pursuant to this subdivision is sufficient notice to the nonconsenting parent.”

Superior Court of California

County of Los Angeles

Department B