Wednesday, January 21, 2015

Nobody's Home but the Address Is Fine

Murray & Murray v. Raissi Real Estate Development Co., No. H039036 (D6 Jan. 20, 2015)

The plaintiffs in this case are lawyers who obtained a default judgment against a former client for unpaid fees. The client moved for relief from default, arguing, among other things, that plaintiff didnt comply with Code of Civil Procedure § 587, which requires an application for entry of default to be mailed to the defendant’s last known address. To establish compliance, plaintiff must file an affidavit attesting to the mailing service or explaining that the address is unknown. Plaintiff had previously tried and failed to personally serve defendant at what it believed to be the last known address—a vacant commercial building. Based on this failure, it concluded that the defendants address was unknown, and attested to that fact. The trial court found that § 587 had been complied with and declined to relieve defendant from default.

The court here finds, however, that it was error for the trial court to deny relief from default on that basis. Just because personal service can’t be effected at a particular address does not necessarily mean that the defendant won’t receive mail there. This was particularly true of the circumstances here. While a person might not be present at a vacant commercial building to let a process server in, it does not automatically follow that mail sent there would be returned as undeliverable. Plaintiff never attempted to mail the application to defendant at the address. It thus could not be said that, had it done so, defendant wouldn’t have received the notice. That makes this case distinguishable from prior authority holding that an address can be considered unknown when a defendant tries but fails to have mail delivered to that address, thus showing that further mailing would be be futile.


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