Kalamata v. Tahan

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KALAMATA THREE BROTHERS LLC, Plaintiff/Appellee,

v.

TAHAN LAW OFFICE PLLC, et al., Defendants/Appellants.

No. 1 CA-CV 25-0745
FILED 06-16-2026

Appeal from the Superior Court in Maricopa County
No. CV2012-011275
The Honorable Brian Kaiser, Judge, Pro Tempore

AFFIRMED

COUNSEL

Thorpe Shwer, P.C., Phoenix
By Caroline Larsen (argued), Maxwell K. Shanahan, Gaetano V. Forte
Counsel for Defendants/Appellants

Law Office of James R. Vaughan, P.C., Scottsdale
By Brian K. Partridge (argued)
Counsel for Plaintiff/Appellee
KALAMATA v. TAHAN
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge James B. Morse Jr. joined.

F U R U Y A, Judge:

¶1 Raya Tahan and Tahan Law Office PLLC (“Appellants”)
appeal the superior court’s entry of default judgment in favor of Kalamata
Three Brothers, LLC (“Kalamata”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Tahan and her former law firm, Tahan Law Office PLLC,
represented Kalamata unsuccessfully in a real estate dispute, resulting in a
large judgment against Kalamata in 2010. Kalamata later alleged
Appellants committed legal malpractice in that action. Upon losing at trial,
Kalamata retained new counsel and sought to set aside the judgment.

¶3 In 2012, Kalamata filed suit in superior court against
Appellants seeking damages for legal malpractice. Several times, Kalamata
unsuccessfully attempted to serve Appellants. As a result, Kalamata moved
for an extension of time for service of process and authorization to use
alternative methods of service. The court granted Kalamata’s request and
permitted Kalamata to serve process via certified mail after two additional
attempts at personal service. The court also required Kalamata to direct
these attempts at addresses produced in response to a subpoena to the State
Bar of Arizona for Appellants’ contact information. After the additional
attempts to complete personal service failed, the process server mailed the
documents as directed by the court’s order.

¶4 Appellants then failed to respond to the Complaint. In
January 2013, Kalamata filed and mailed a Notice and Application for Entry
of Default (the “Application”) to “Tahan Law Office, PLLC/Attn: Raya
Tahan.” But again, Appellants failed to respond, and so Kalamata sought
default judgment against Appellants. Appellants still did not respond, and
the court entered the judgment in March 2013.

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KALAMATA v. TAHAN
Decision of the Court

¶5 Twelve years later, in April 2025, Appellants moved to vacate
the judgment pursuant to Arizona Rule of Civil Procedure (“Rule”) 60(b).
After holding argument and reviewing the motion and Kalamata’s
response, the court denied the motion to vacate the judgment in August
2025.

¶6 Appellants timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes Section 12-2101(A)(2).

DISCUSSION

I. Kalamata Properly Served Appellants Through Alternative Means
and the Judgment is Affirmed.

¶7 Appellants argue the court erred in denying their Rule 60(b)
motion because service was defective, rendering the judgment void. We
generally review denial of a motion under Rule 60(b) for an abuse of
discretion, Ezell v. Quon, 224 Ariz. 532, 536 ¶ 15 (App. 2010),1 but we review
de novo whether a default judgment is void and should be vacated
pursuant to Rule 60(b)(4), BYS Inc. v. Smoudi, 228 Ariz. 573, 578 ¶ 18 (App.
2012).

A. Adequacy of Alternative Service

¶8 Appellants first argue the default judgment is void for lack of
proper service because alternative service was improperly authorized. We
review de novo whether service was proper, but we defer to the court’s
factual findings unless they are clearly erroneous. Ruffino v. Lokosky, 245
Ariz. 165, 168 ¶ 9 (App. 2018). We view “the facts in the strongest light
possible in favor of supporting the trial court’s decision[.]” Hilgeman v. Am.
Mortg. Sec., Inc., 196 Ariz. 215, 219 ¶ 10 (App. 2000) (quoting Daou v. Harris,
139 Ariz. 353, 360 (1984)).

1 Effective January 1, 2017, the Arizona Rules of Civil Procedure were
restyled, moving the content of former Rule 60(c) into what is now Rule
60(b). While pre-2017 cases refer to this provision as Rule 60(c), this decision
references it as Rule 60(b). Compare Ariz. R. Civ. P. 60(c) (1987), with Ariz.
R. Civ. P. 60(b) (2017).

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¶9 Service by alternative means is governed by Rule 4.1(k).
Under that rule, “[i]f a party shows that the means of service provided in
Rule 4.1(c) through Rule 4.1(j) are impracticable, the court may . . . order
that service may be accomplished in another manner.” Rule 4.1(k)(1). The
standard for impracticability “requires something less than the ‘due
diligence’ showing required before service by publication may be
utilized.” Blair v. Burgener, 226 Ariz. 213, 218 ¶ 16 (App. 2010). It requires
that service be “extremely difficult or inconvenient[,]” not impossible. Id. at
¶ 17.

¶10 Here, Kalamata attempted service multiple times in
December 2012 and the process server stated in their affidavit that
“residents at address appear to be avoiding service.” These circumstances
were sufficient to demonstrate that service by the usual means would have
been “extremely difficult or inconvenient[,]” and therefore impracticable.
Id. at 219 ¶ 18. Because its multiple attempts to serve Tahan were
unsuccessful, Kalamata moved to extend time for service and to provide
service via certified mail to all addresses produced pursuant to a subpoena
that had been served on the State Bar of Arizona. Since Kalamata had made
multiple attempts at personal service, the court was permitted to “order
that service may be accomplished in another manner.” Ariz. R. Civ. P.
4.1(k)(1). As such, the court properly granted Kalamata’s requests for an
extension and alternative means of service.

¶11 Appellants further argue Kalamata did not adequately show
standard methods of service were impracticable because Kalamata did not
try to contact Tahan “via telephone, email, or even social media to verify
her correct address” prior to obtaining permission to use alternative
methods of service. But Rule 4.1 does not expressly require attempted
contact by any of these means before a court may authorize alternative
service and we decline to interpret the Rules to imply such a requirement.
A general showing of impracticability is sufficient.

¶12 Kalamata complied with Rule 4.1’s stated requirements, and
we hold the court properly authorized alternative service. Kalamata
properly served Appellants by sending notice via certified mail to the
address provided in the subpoena in December 2012. The judgment is not
void for improper service.

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KALAMATA v. TAHAN
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B. Adequacy of Service of Notice of Default

¶13 Appellants further argue Kalamata failed to adequately serve
the Application on Raya Tahan individually because Kalamata mailed only
one copy to the address supplied by the State Bar of Arizona, and that one
copy was addressed to “Tahan Law, PLLC/ Attn: Raya Tahan.” Raya Tahan
thus argues the ten-day period for her to cure the default never began to
run and the resulting judgment was void as to her personally. Rule
55(a)(3)(A) requires a party requesting entry of default to “mail a copy of
the application for entry of default to the last-known mailing address for
the party claimed to be in default.” But the purpose of this requirement is
to give the defendant an opportunity to cure its default. See Richas v.
Superior Court, 133 Ariz. 512, 514 (1982) (defendant filed an affidavit
explaining their failure to answer after being provided notice of default). If
the required notice is not provided, the trial court is required to set aside
the resulting default judgment under Rule 60(b)(4). Ruiz v. Lopez, 225 Ariz.
217, 223 ¶ 21 (App. 2010).

¶14 The party against whom default is sought “should receive the
best notice practicable under the circumstances[.]” Id. at 221 ¶ 15. However,
as the court’s order granting alternative service due to impracticability
shows, sending the Application via certified mail was the best notice
practicable under these circumstances. Further, both Appellants shared the
same address, the Application was properly sent via certified mail to the
Appellants according to the court’s order, and Appellants do not allege the
Application did not arrive in time to act upon it. We discern no reversible
error sufficient to void the judgment simply because Appellants were
mailed one copy of Kalamata’s notice of default, which bore both
Appellants’ names on the addressing label. To hold otherwise would
impermissibly elevate form over substance. Thus, the single notice mailed
to Appellants’ single address constitutes adequate service.

II. We Affirm the Court’s Determination of Damages.

¶15 Appellants argue the judgment included amounts Kalamata
was not entitled to recover and was excessive, thus the court erred in
refusing to vacate the damages under Rule 60(b)(4) as a void judgment.
Appellants further contend that because the Complaint did not contain a
specified amount for damages, the court was required to conduct a hearing
to determine what damages to award and therefore, relief under Rule
60(b)(6) is warranted. We consider these arguments in turn.

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KALAMATA v. TAHAN
Decision of the Court

A. Appellants are not entitled to relief under Rule 60(b)(4).

¶16 To qualify for relief under Rule 60(b)(4), the judgment in
question must be void. Appellants correctly observe that “[a] default
judgment must not differ in kind from, or exceed in amount, what is
demanded in the pleadings.” Ariz. R. Civ. P. 54(d). Thus, “[o]ne cannot
recover judgment by default for a sum or for relief in excess of that
warranted by the pleadings.” S. Ariz. Sch. For Boys, Inc. v. Chery, 119 Ariz.
277, 283 (App. 1978). And “[a] judgment in a default case that awards relief
that either is more than or different in kind from that requested is null and
void.” Id.

¶17 But here, the complaint sought an award of money damages,
which is the same relief granted in the judgment. Thus, the judgment in this
case is not different in kind. Kalamata’s complaint sought “damages in an
amount to be proven at trial.” Despite Appellants’ argument to the
contrary, this does not mean the default judgment, which awarded a
specific sum, was excessive. We look to Dairyland Insurance Co. v. Richards,
108 Ariz. 89 (1972), as instructive. In Dairyland, a plaintiff’s complaint
sought damages “in a sum which is reasonable and just.” Id. at 91. Our
supreme court called such designations “a sum indefinite in amount” and
determined that entry of a default judgment for a specific amount
notwithstanding their use did not offend Rule 54(d). Id. In this case,
Kalamata’s complaint also requested a sum indefinite in amount, and the
judgment entered by the superior court in 2013 for a definite amount of
damages similarly did not violate Rule 54(d). As in Dairyland, the
Appellants were required to “assume that a judgment might be ultimately
entered in some amount.” Id.

¶18 Here, the court found the judgment was not excessive. To the
extent Appellants ask us to revisit the court’s award of damages to
determine that it is excessive, we decline to do so because “[a] judgment is
conclusive as to damages[.]” Id.; see also Hilgeman, 196 Ariz. at 218 ¶ 7 (“[W]e
will not second-guess or substitute our judgment for that of the trial court.”
(quoting Gen. Elec. Cap. Corp. v. Osterkamp, 172 Ariz. 185, 188 (App. 1992))).

B. Appellants are not entitled to relief under Rule 60(b)(6).

¶19 Finally, Appellants seek relief under Rule 60(b)(6). But such
relief must be sought “within a reasonable time[.]” Ariz. R. Civ. P. 60(c)(1);
Hilgeman, 196 Ariz. at 220 ¶ 15. Here, the court noted Appellants had a long
and unexplained delay of twelve years in challenging the judgment and
failed to show a meritorious defense. The record supports the court’s

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KALAMATA v. TAHAN
Decision of the Court

finding that Appellants failed to seek Rule 60(b) relief within a reasonable
time.

¶20 The court did not err in denying Appellants’ motion to vacate
the default judgment under Rule 60(b)(4) or (6).

CONCLUSION

¶21 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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