California Code of Civil Procedure Section 587 - Interpretation

Section 587 states that the plaintiff's application (or request) for entry of default and/or for default judgment must include an affidavit stating that a copy of the application has been mailed to the defendant's attorney of record, or if none, to the defendant at his or her last known address. Section 587 further provides: "No default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall be entered, unless the affidavit is filed. the nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgment." 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. (In re Marriage of Harris (1977) 74 Cal.App.3d 98, 102.) In Harris, the trial court's error of entering default judgment in the absence of an affidavit of mailing as required by section 587 was found to be nonprejudicial because the defendant received actual notice of the default proceedings by other means. Accordingly, the trial court's order denying the defendant's motion to set aside default and default judgment was affirmed. (Harris, supra, at pp. 102-103.) Similarly, in Candelaria v. Avitia (1990) 219 Cal.App.3d 1436, no prejudice was shown from the lack of an affidavit of mailing under section 587 where prior efforts to locate the defendants were unsuccessful and letters sent to the defendants' last known address were undelivered. The appellate court reasoned that even if a copy of the request for default had been mailed, "it was not likely that the defendants would have received it." (Candelaria v. Avitia, supra, at p. 1444.) Thus, no prejudice was apparent and the order denying the defendants' motion was affirmed. Cases involving alleged defects in the affidavit of mailing have taken the same approach. for example, in Taylor v. Varga (1995) 37 Cal.App.4th 750, the appellants claimed the default should be set aside because of an error in the information set forth in the affidavit of mailing. The Court of Appeal rejected that challenge, explaining that "we see no prejudice to appellants from any mistake in the mailing or affidavit process by respondents when the appellants' insurer had actual notice of all the relevant proceedings." (Id. at p. 760.)