In re the Marriage of ROXIE and BERNIE E. HARRIS.
BERNIE E. HARRIS, Respondent,
v.
ROXIE HARRIS, Appellant.
Court of Appeals of California, First District, Division Four.
*99 COUNSEL
Alfred M. Miller and Baron L. Miller for Appellant.
Robert J. Cort for Respondent.
OPINION
CHRISTIAN, J.
Roxie Harris (wife) appeals from an order denying her motion to set aside her default and a default judgment in this marital dissolution prоceeding brought by Bernie E. Harris (husband).
Husband's request for default, filed in January 1976, was accompanied by an affidavit stating that notice had been mailed to Stephen Redner, an attоrney whom wife had consulted. Mr. Redner returned the documents to husband's attorney, informing him that he had not been retained by wife but that he had advised her that her default would be taken. The rеturned documents were then sent by husband's attorney to wife at her residence, but no affidavit was filed evidencing this second mailing.
*100 Wife contends that since husband failed to support his rеquest to enter default with a declaration showing that a copy of the request had been mailed to wife, the resulting default judgments were invalid.
Code of Civil Procedure section 587[1] requires that an application for entry of a default (Code Civ. Proc., § 585, subds. 1, 2; § 586, subd. 3) or of a judgment (Code Civ. Proc., § 585, subd. 3) be accompanied by an affidavit showing that a copy of the application has been mаiled to the defendant's attorney of record. If there is no attorney of record, the copy of the application must be mailed to the defendant at his last known address, and if no address is known, the affidavit must so state. The statute provides that no application for default judgment shall be heard, and no default entered, unless such an affidavit has been filed. It is provided, however, that the failure to receive notice will not invalidate the judgment. Civil Code section 4001 authorizes the Judicial Council to provide by rule for the practice and procedure in proceedings under the Family Law Act. Accordingly, it has been provided in rule 1206, California Rules of Court, that requirements governing civil actions generally аpply to proceedings pursuant to the Family Law Act. Thus, rule 1240, California Rules of Court,[2] applies to marital causes in requiring that an address must be given in every case before a default may be taken.
In the present case, the affidavit of mailing states that a copy of the request for default was sent to Mr. Redner. There was evidence that he was an attorney whom wife had consulted, but no appearance had been made by the wife; hence, Redner was not wife's attorney of record. Although there is evidence that a copy of the application was then in fact *101 forwarded to wife, no affidavit establishing that fact was filed. Therefore, it must be concluded that husband failed to comply with section 587 and rule 1240, and that the clerk should not have entered wife's default.
The consequences of this lapse are not prescribed in the statute: seсtion 587 does not expressly make the affidavit requirement jurisdictional. It does, however, state that nonreceipt of the required notice will not of itself invalidate the judgment. Only two California cases have dealt with section 587; neither considered the affidavit requirement. (See Flood v. Simpson (1975)
The legislative history of section 587 is similarly inconclusive. Section 587, enacted in 1969, was part of a bill sponsored by the State Bar оf California for the purpose of minimizing the possibility that a default may be taken against a party who intends to defend on the merits. It was stated by the State Bar Committee on Administration of Justice that motions for relief under Code of Civil Procedure section 473 and under the equity power of the court were occupying the time of courts and counsel in dеtermining whether in the particular case the default and default judgments should be set aside after a lapse of time. It was hoped that to require an affidavit stating that noticе had been mailed to the attorney of record or, if none, to the defendant would reduce the incidence of such motions. The question whether the affidavit requirement shоuld be jurisdictional is not discussed.[3] In the absence of any indication of legislative intent on that point, this court should consider *102 the general purpose of the statute, as well аs the consequences of alternative constructions, as guides to interpretation.
The purpose of the enactment was to reduce uncertainty and reducе the time spent in the trial court considering motions for relief from default under Code of Civil Procedure section 473 and under the equity power of the court. By requiring an affidavit stating thаt notice has been mailed, the Legislature sought to reduce the occasion for later motions for relief from default. It appears that the statutory provision would be effective whether or not the requirement is characterized as being jurisdictional.
The mandatory language of the statute does not necessarily make it jurisdictional. (See Chernow v. Chernow (1954)
The trial court in the present case, then, committed error by rendering a default judgment when the file did not contain the required affidavit. But there is substаntial evidence to support a finding that wife had actual notice of husband's intent to take a default, even though husband had not complied with the statutory provision. The attоrney she had earlier consulted stated that he informed her that her default would be taken. There was evidence that the required notice had been sent to her by husband's attorney, even though the affidavit requirement had not been complied with. If wife did receive actual notice, the error in failing to file an affidavit would not be prejudicial. If no hаrm to wife resulted from that error, the motion to set aside the judgment was properly to be denied. (Cal. Const., art. VI, § 13.) In support of the court's order, this *103 court must infer findings that wife had actual notice of the taking of the default and that the error was therefore not prejudicial.
The order is affirmed.
Caldecott, P.J., and Rattigan, J., concurred.
A petition for a rehearing was denied November 2, 1977, and appellant's petition for a hearing by the Supreme Court was denied December 15, 1977.
NOTES
Notes
[1] Code of Civil Procedure section 587:
"An application by a plaintiff for entry of default under subdivision (1) or (2) of Section 585 or Section 586 or an apрlication for judgment under subdivision (3) of Section 585 shall include an affidavit stating that a copy of such application has been mailed to the defendant's attorney of record or, if none, to the defendant at his last known address and the date on which such copy was mailed. If no such address of the defendant is known to the plaintiff or plaintiff's attornеy the affidavit shall state such fact.
"No application for judgment under the provisions of subdivision (3) of Section 585 shall be heard, and no default under the provisions of subdivision (1) or (2) of Sеction 585 or Section 586 shall be entered, unless such affidavit is filed. The nonreceipt of such notice shall not invalidate or constitute ground for setting aside any judgment."
[2] California Rulеs of Court, rule 1240: "No default may be entered in any proceeding unless the Request and Declarations re Default in the form prescribed by Rule 1286 has been completed in full and filed by the petitioner. For the purpose of completing the declaration of mailing, it is not sufficient to state that the address of the party to whom notice is given is unknown or unavailable, and no default shall be entered unless an address is given."
[3] State Bar of California Interim Reports, Committee on Administration of Justice, January 1968 and March 1969.