People v. Mirsky CA2/7
B297321
| Cal. Ct. App. | Sep 21, 2021Background:
- Interinsurance Exchange sued Mirsky in 1999 alleging an insurance‑fraud ring; initial complaint and statement of damages were served (substituted service) at Mirsky’s Fuller Avenue address. Mirsky later was incarcerated and pled guilty in related criminal cases.
- A second amended complaint (with exhibits listing specific claims tied to defendants) was filed and mailed to Mirsky; he did not answer and default was entered; in 2003 the court entered a default judgment totaling ~$7.87 million.
- The judgment was renewed by application in 2013. Interinsurance Exchange mailed a notice of renewal to 3336 Dona Rosa Drive (Studio City); a later mailing of the renewal materials occurred on June 6, 2018 and was not returned.
- Mirsky moved on January 22, 2019 under Code Civ. Proc. § 683.170 to vacate the renewal (and alternatively under § 473(d) to vacate the default), arguing (1) the renewal notice was mailed to the wrong address so the 30‑day clock never started, and (2) the second amended complaint materially changed the claim so personal service was required and the default judgment is void.
- The trial court denied the motion as untimely and found the default judgment not void; on appeal the court held service of the renewal notice was not proper (so the motion was timely) but affirmed because the second amended complaint was not a substantive change and the default judgment was not void.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness and sufficiency of service of the notice of renewal under §683.160/§684.120 | Renewal notice was mailed to Mirsky’s last known address (Dona Rosa); Mirsky’s motion was filed after the 30‑day window and is untimely | Notice mailed to Dona Rosa was not Mirsky’s last known address (Fuller Ave appeared on a filed application); therefore §683.170 30‑day clock did not run and the motion was timely | Court: Service of renewal to Dona Rosa was not proper under §684.120 because Mirsky had a later filed address on record; motion was timely, but denial affirmed on other grounds |
| Whether the second amended complaint was a substantive amendment requiring personal service (voiding the default judgment) | Second amended complaint was substantially same as earlier complaints (only clarified and itemized claims); mail service was sufficient and default valid | Second amended complaint (with exhibits) materially changed allegations and increased exposure, so personal service was required; default judgment is void | Court: Second amended complaint did not materially alter theory or increase damages beyond prior pleadings; mail service was adequate; default judgment not void; motion to vacate denied |
Key Cases Cited
- Goldman v. Simpson, 160 Cal.App.4th 255 (Cal. Ct. App.) (explains renewal procedure and that lack of service may be raised to vacate renewal)
- Fidelity Creditor Service, Inc. v. Browne, 89 Cal.App.4th 195 (Cal. Ct. App.) (failure to serve summons/complaint can render judgment void and support vacatur of renewal)
- Engebretson & Co. v. Harrison, 125 Cal.App.3d 436 (Cal. Ct. App.) (amendments of substance open defaults; service of amended complaint is required before entering default)
- Paterra v. Hansen, 64 Cal.App.5th 507 (Cal. Ct. App.) (materiality test for amendments: whether change increases liability or alters defenses)
- Sass v. Cohen, 10 Cal.5th 861 (Cal.) (amendments estimating damages may require new service because they can be substantive)