233 Cal. App. 4th 379
Cal. Ct. App.2015Background
- Murray & Murray sued Raissi for unpaid legal fees from a Chapter 11 bankruptcy representation and, after failing to effect personal service, obtained a court order allowing service by publication.
- The summons was published; Raissi did not appear and Murray & Murray sought and obtained default and a default judgment for $372,403.81.
- On the default-entry form Murray & Murray checked that it did not mail the request for entry of default because Raissi’s address was “unknown,” per Code Civ. Proc. § 587.
- Raissi later learned of the default only when the County of Santa Clara mailed a lien notice with the abstract of judgment to one of the addresses Murray & Murray had used for personal-service attempts.
- Raissi moved to set aside the default and judgment under Code Civ. Proc. § 473 (attorney mistake, lack of jurisdiction, extrinsic fraud); at the hearing it also argued Murray & Murray violated § 587 by not mailing the default application to Raissi’s last known address.
- The trial court denied relief; the Court of Appeal reversed, holding Murray & Murray’s affidavit misrepresented the address as “unknown” where it had identified and attempted personal service at mailing-capable addresses but had not attempted mailing as § 587 requires.
Issues
| Issue | Plaintiff's Argument (Murray & Murray) | Defendant's Argument (Raissi) | Held |
|---|---|---|---|
| Whether plaintiff complied with Code Civ. Proc. § 587 (affidavit of mailing) | Compliance satisfied because plaintiff could not effect personal service after reasonable diligence and thus address was "unknown" | § 587 requires mailing to defendant’s last known address; inability to personally serve does not make a mailing address "unknown" | Reversed: plaintiff’s checkbox that address was "unknown" was incorrect; plaintiff should have mailed to discovered addresses |
| Whether failure to mail under § 587 prejudiced defendant and warrants vacatur under § 473 | No prejudice because plaintiff made reasonable diligence efforts to locate defendant; publication was authorized | Prejudice shown because mailing to the discovered address may have given notice (County later mailed there) | Held prejudice could exist: failure to mail was prejudicial and warranted setting aside default |
| Whether trial court abused discretion in denying § 473 relief | Denial proper given procedural posture and asserted diligence | Motion and affidavits showed grounds and prompt action; law favors trial on merits | Court of Appeal: abuse of discretion — default should be set aside to allow trial on merits |
| Whether other procedural defects (raised late) require relief (e.g., notice of ex parte, timing) | — | Raised on appeal/reply but not below; these issues were forfeited | Court declined to consider new appellate-only arguments; they were waived |
Key Cases Cited
- Zamora v. Clayborn Contracting Group, Inc., 28 Cal.4th 249 (discussion of abuse-of-discretion review for § 473 relief)
- Elston v. City of Turlock, 38 Cal.3d 227 (policy favoring resolution on the merits and liberal application of § 473)
- Candelaria v. Avitia, 219 Cal.App.3d 1436 (no prejudice where mailing attempts were made but returned undelivered)
- Slusher v. Durrer, 69 Cal.App.3d 747 (discussion of "reasonable diligence" and comparison of § 587 to service-by-publication predicates)
- Rodriguez v. Henard, 174 Cal.App.4th 529 (§ 587 affidavit requirement is not jurisdictional; prejudice controls relief)