Wednesday, September 28, 2016

Service on DeadCo's Authorized Agent Is Service Nonetheless

Pulte Homes Corp. v. Williams Mechanical, Inc., No. E064710 (D4d2 Aug. 9, 2016)

A defunct plumbing company whose charter had been suspended got sued for negligent performance of a contract. Plaintiff served its designated agent, who did nothing because the company was basically a dead letter. Plaintiff took a default.

The company, however, did have some insurance. After finding out about the default, the carrier retained counsel for the defunct company and moved for relief from default under Code of Civil Procedure § 473(b), which was granted by the trial court. But the Court of Appeal reverses.

Section 473(b) requires the motion to be filed within six months of the order to be vacated. The motion here was filed more than six months after the entry of default, although less than six months after a default judgment was entered. The court holds that the earlier date was the key one. Vacating a default judgment isn’t worth much unless you can also vacate the underlying default.

The court also rejects a challenge under § 473.5, which permits the setting aside of a default when the defendant never received actual notice. Here, there’s no question that the registered agent of the company was properly served. While service on an entity’s attorney might not be enough to give actual notice, when an attorney is also a designated agent, that service is sufficient to give the corporation actual notice as a matter of law. Even if the attorney neglects to inform the company’s principals because the company had gone out of business.

Finally, the court declines to award equitable relief from default on grounds of extrinsic mistake. That relief is available only under “rare circumstances” where the moving party is inequitably denied a hearing. To obtain the relief, the moving/defaulted party needs to show: (1) that its defense has merit; (2) a satisfactory excuse for not presenting the defense in the original action; and (3) that it acted diligently to set aside the default once discovered. There’s a threshold issue here that Defendant didn’t really raise extrinsic mistake until its reply brief, although two elements (excuse and timeliness) were discussed on the opening brief in connection with the 473.5 issue. The court finds that Defendant forfeited the argument on the meritorious-ness element. And in any event, Defendant didn’t meet the burden of showing either a satisfactory excuse or diligence.


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