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Murray & Murray v. Raissi Real Estate Development, LLC

California Court of Appeals, Sixth District

January 20, 2015

MURRAY & MURRAY, Plaintiff and Respondent,
v.
RAISSI REAL ESTATE DEVELOPMENT, LLC, Defendant and Appellant.

Santa Clara County Superior Court Superior Court No. 1-11-CV213714 Hon. Patricia M. Lucas

Page 380

[Copyrighted Material Omitted]

Page 381

COUNSEL

C. Alex Naegele Charles Alexander Naegele Parker & Mazo and Eugene D. Mazo for Defendant and Appellant.

Dorsey & Whitney John Walshe Murray Robert A. Franklin and Thomas T. Hwang for Plaintiff and Respondent.

OPINION

PREMO, J.

Appellant Raissi Real Estate Development, LLC (Raissi) appeals from the order denying its motion to set aside default and default judgment, as well as the default judgment itself. Respondent Murray & Murray, a professional corporation, filed a civil complaint against Raissi

Page 382

seeking recovery of unpaid legal fees incurred in a bankruptcy proceeding. After multiple unsuccessful attempts at personal service, Murray & Murray obtained permission from the trial court to serve Raissi by publication. After the time for Raissi to respond expired, Murray & Murray obtained a default judgment in the amount of $372, 403.81. Raissi claims it first learned of Murray & Murray’s lawsuit, and the default judgment, after it received a lien notice from the County of Santa Clara with the abstract of judgment attached.

On appeal, Raissi argues the trial court erred in denying the motion to set aside default and default judgment on the grounds that Murray & Murray failed to comply with Code of Civil Procedure section 587, [1] which requires the application for entry of default and default judgment be mailed to the defendant’s last known address. Murray & Murray instead declared that Raissi’s address was “unknown” to it because it had been unable to personally serve Raissi at any of the addresses it discovered.

We agree that a mailing address is not “unknown” to a plaintiff merely because personal service could not be effected at that address. Accordingly, we will reverse the judgment and remand.

I. Factual and Procedural Background

In June 2010, Raissi entered into a written agreement with Murray & Murray in which Murray & Murray agreed to represent Raissi in a Chapter 11 bankruptcy case, filed that same day in the United States Bankruptcy Court, Northern District of California. In July 2010, Raissi sought and obtained authorization from the bankruptcy court for Murray & Murray to represent it in the ongoing bankruptcy proceedings under a general retainer on the terms and conditions set forth in the written agreement. Over the following year, Murray & Murray represented Raissi in bankruptcy, generating attorney fees and expenses in the amount of $329, 705.12. The bankruptcy proceedings were dismissed and the bankruptcy case closed in June 2011. Raissi failed to pay Murray & Murray’s outstanding fees.

In November 2011, Murray & Murray filed a complaint against Raissi for breach of contract, account stated, open book account and failure to pay for goods and services rendered, seeking recovery of its unpaid fees.

In January 2012, Murray & Murray brought an ex parte motion for an order extending the deadline to serve the summons and complaint and allowing it to serve Raissi via publication. In support of its motion, Murray & Murray submitted a ...


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