Ruiz v. Lopez (CA1 8/3/10)

This case holds that failure to give proper notice of default renders default judgment void.

Ruiz sued Lopez and served her at work. When she didn’t file an Answer he filed for default; he sent copies of the default paperwork to the large apartment complex where she lived without including the apartment number on the envelope. She moved to set aside the resulting default and default judgment. Lopez argued that Ruiz should have sent mail to her work address, which he knew, and that in any event there was excusable neglect. Ruiz’ argued that he didn’t know the right apartment number but that the letter carrier or apartment manager would deliver it anyway and that the letter wasn’t returned to him as undeliverable. The trial court granted the motion, although it found no excusable neglect. Ruiz appealed; this opinion affirms.

Rule 55(a)(1)(i) says that a copy of the application for default must be mailed to the defaulting party if his “whereabouts” are known. The court concludes that “whereabouts” means the particular place were the party can be found, not the general area. Ruiz knew where that was – Lopez’ workplace – but sent it to an area instead. Moreover, “mailed” implies a proper mailing address, which includes the apartment number according to a New York case discussing postal requirements. A party, the court said, should give the “best notice practicable” – in this case, to the workplace.

Ruiz argued that the judgment was voidable, not void, and that Lopez could therefore obtain relief only under Rule 60(c)(1) (excusable neglect). But the court holds that because notice was insufficient the default was of no effect and the default judgment was void. The trial court was therefore required to set it aside under Rule 60(c)(4).


(link to opinion)