Opinion
B230211
11-22-2011
WILLIAM KIMBLE, Plaintiff and Respondent, v. VIPUL VARMA, Defendant and Appellant.
Gemmill, Baldridge & Yguico, Carlos V. Yguico, and Jay Statman for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC097932)
APPEAL from an order of the Superior Court of Los Angeles County, Lisa Hart Cole, Judge. Reversed and remanded.
Gemmill, Baldridge & Yguico, Carlos V. Yguico, and Jay Statman for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Vipul Varma (appellant) appeals from the trial court's denial of his motion to set aside a default judgment entered in favor of William Kimble (respondent). We reverse and remand the matter to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2008, respondent filed a complaint against several defendants asserting five causes of action (violation of Civ. Code, § 1695, fraud, negligence, rescission, and money had and received) arising out of an allegedly fraudulent refinancing scheme to help respondent avoid foreclosure on his residence. In August 2008, respondent amended his complaint to add appellant as a Doe defendant. Respondent filed a proof of personal service of the summons and complaint and the Doe amendment that stated appellant was served on September 20, 2008, at a residence in Anaheim.
In October 2008, respondent filed a request for entry of default against a number of defendants, but the proof of service did not list appellant. The superior court clerk entered default against all defendants.
In May 2009, respondent filed a request for entry of default judgment against all defendants. The declaration of mailing on this form was left blank. In September 2009, judgment was entered in favor of respondent and against all defendants, including appellant, in the amount of $161,741.14 plus attorney fees and costs as well as a $2,500 civil penalty pursuant to Civil Code section 1695.7.
In August 2010, appellant filed a motion to set aside the default judgment based on Code of Civil Procedure section 473.5, which provides that a defendant may obtain relief by showing lack of notice of the proceedings. He claimed that he had never received the summons and complaint and that respondent had not served him with the request to enter default. He stated that he had resided in Indiana since "late 2008." His attorney filed a declaration stating that appellant first learned of the judgment when his bank account was levied upon and that counsel immediately wrote to respondent's counsel, but did not receive a reply. Appellant also argued that judgment should not have been entered because there were no factual allegations stated in the complaint.
All further statutory references are to the Code of Civil Procedure.
A motion under section 473.5 may be brought within two years after entry of default judgment or 180 days after service of written notice of entry of default judgment.
The motion stated that appellant had moved in December 2008.
Respondent filed an opposition to the motion that included county records showing that appellant's wife owned the residence in Anaheim where service was made. Respondent also attached a declaration from the process server, who stated that someone answered the door at the residence and identified himself as appellant and that the person served was Indian or Pakistani, 45-50 years old, about five feet eight inches to five feet nine inches tall with a "mid-build."
Appellant filed a declaration in reply, stating that "in contrast" he is 40 years old, five feet ten inches tall, and 195 pounds. He said there were numerous construction workers and visiting relatives at the house and that he never received the summons and complaint.
The matter was set for hearing on October 14, 2010. On that date, the court posted a tentative ruling denying appellant's motion.
After taking the matter under submission, the court denied the motion, adopting its tentative ruling, which stated, inter alia, "[T]he requirement under CCP § 587 [of an affidavit stating that the application for entry of default was mailed to the defendant] has been found mandatory but not jurisdictional. . . . As such, failure to submit such an affidavit does not necessarily justify setting aside the default and default judgment. Although it constitutes error to enter default and default judgment without the affidavit of mailing, it is within the Court's discretion to set the default and default judgment aside on this basis depending on whether the defendant already had actual notice, or if there is evidence that sending the request for entry of default would have been futile. See Candelaria v. Avitia (1990) 219 Cal.App.3d 1436, 1444 . . . . [¶] The court notes that Plaintiff's counsel does not dispute Varma's claim that he was never served with the request [for] entry of default. However, as discussed above, Defendant Varma fails to make a convincing case that he did not have actual knowledge of this action. For this reason, the Court finds Defendant Varma was not prejudiced by counsel's failure to submit an affidavit of mailing."
DISCUSSION
Appellant contends the default judgment must be set aside for two reasons. First, respondent failed to serve him with the request for entry of default as required by section 587. Second, the complaint failed to allege a valid claim for relief. Respondent did not file a brief.
Appellant is correct when he observes that the trial court should not have entered his default due to respondent's failure to comply with section 587. However, the issue here is whether the court was required to set aside the default judgment that had already been entered. "The requirement of an affidavit of mailing under section 587 is not jurisdictional, and hence the failure to file one does not deprive the trial court of jurisdiction to render judgment. [Citation.]" (Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 536.) A court may properly decline to set aside a default judgment where the absence of the affidavit of mailing is not prejudicial. (Ibid.)
As noted, the trial court cited Candelaria v. Avitia (1990) 219 Cal.App.3d 1436 (Candelaria) and concluded that appellant "was not prejudiced by [respondent's] counsel's failure to submit an affidavit of mailing." We disagree.
In Candelaria, a 19-month-old boy was injured while in the care of Silvia Avitia, who was operating a day-care center out of the home she owned with her former husband. Avitia fled to parts unknown. After attempts to locate Avitia proved futile, the boy's mother (the plaintiff) filed the complaint and served her by publication. She failed to respond. The plaintiff received a default judgment against Avitia despite failing to file the affidavit of mailing required by section 587. When the plaintiff made a demand for payment in satisfaction of the judgment upon the defendants' insurer, the insurer moved to set aside the default and default judgment on the defendants' behalf. The motion was denied and the defendants appealed. (Candelaria, supra, 219 Cal.App.3d at pp. 1439-1440.) Specifically pointing to the fact that "extensive but unsuccessful efforts" were undertaken by the plaintiff and the insurer to locate the defendants (the insurer mailed several letters to Avitia's last known address that were undelivered), the court concluded that "even if a copy of the request for uncontested hearing had been mailed to [the defendants'] last known address, it was not likely that [they] would have received it. Consequently, there is no reasonable probability that had there been no error, the result would have been more favorable to [the defendants]." (Id. at p. 1444.)
Although the opinion repeatedly refers to the "defendants," it states the plaintiff obtained a default judgment against Avitia. We cannot ascertain whether the plaintiff was also awarded a default judgment against Avitia's former husband.
Here, quite the opposite occurred. The trial court found that respondent successfully located and served appellant at his wife's home in Anaheim. Respondent knew where to mail a copy of his application for entry of default in order to provide appellant with notice. He simply failed to do so. Unlike Candelaria, we do not have evidence of futile attempts to locate the party against whom default was being sought. Thus, we cannot conclude that if respondent had mailed a copy of his application to seek default to the same address where service had been effectuated, it was not likely that appellant would have received it. As a result, appellant was prejudiced by respondent's noncompliance with section 587.
We are aware that there are cases where the failure to file the requisite affidavit has been deemed harmless; however, those defendants had actual knowledge of the plaintiff's intent to seek a default judgment. (See Rodriguez v. Henard, supra, 174 Cal.App.4th at p. 536 [defendants and their representative were informed that a default judgment would be sought if defendants did not immediately return money they had allegedly stolen]; In re Marriage of Harris (1977) 74 Cal.App.3d 98, 102-103 [wife was told husband would seek her default in marital dissolution proceeding].) That was not the case here. Indeed, once appellant became aware of the judgment against him, he quickly contacted an attorney and attempted to have the judgment set aside.
The trial court erred by denying appellant's motion to set aside the default judgment due to respondent's failure to comply with section 587.
Having reached this conclusion, it is unnecessary to discuss appellant's other contention.
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DISPOSITION
The trial court's order denying appellant's motion to set aside the default judgment is reversed. The matter is remanded for the trial court to enter a new order granting appellant's motion and to give him an opportunity to file a responsive pleading.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.