IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DARIO DE PASQUALE, No. 87230-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CHRISTOPHER KERL,
Appellant.
DÍAZ, J. — Dario De Pasquale sued Christopher Kerl for unlawful eviction.
When Kerl failed to answer the complaint, De Pasquale moved for an order of
default and default judgment. The day before the scheduled hearing, Kerl filed,
but did not correctly serve, a motion to dismiss De Pasquale’s complaint. The trial
court found Kerl in default and entered a default order and judgment against him.
The court also denied Kerl’s motion to vacate the default order and judgment. Kerl
appeals, asserting that the order and judgment should have been vacated because
he was not in default. We agree, reverse and remand for further proceedings.
I. BACKGROUND
De Pasquale rented a property located in Seattle from Kerl starting in
September 2017. On or about March 18, 2022, Kerl served De Pasquale with a
notice to terminate tenancy, attesting that he intended to occupy the property as No. 87230-3-I/2
his primary residence. De Pasquale filed a lawsuit against Kerl, alleging that Kerl’s
assertion of intended occupancy was not true and thus he served the notice in
violation of RCW 59.18.650 and Seattle Municipal Code 22.205.070.
De Pasquale served Kerl a copy of the summons and complaint via certified
mail on May 14, 2024. On August 12, 2024, counsel for Kerl filed a notice of limited
appearance in the matter. On August 19, 2024, De Pasquale filed a motion for
order of default and default judgment. De Pasquale noted the hearing on the
motion for August 30, 2024.
On August 29, 2024, Kerl filed a motion to dismiss De Pasquale’s complaint.
Although he sent a copy to plaintiff’s counsel via email, Kerl did not correctly serve
De Pasquale with a copy of the motion until after the August 30 hearing. Kerl also
did not obtain a date for the hearing on his motion to dismiss prior to filing. The
trial court granted De Pasquale’s motion for default, finding that Kerl “has not filed
an Answer or other responsive pleading.” The court issued an order of default and
simultaneously entered a default judgment in De Pasquale’s favor for $14,900 in
damages, plus $327.49 in costs and $2,476.50 in attorney fees.
Kerl then filed a motion to vacate the default order under CR 55(a)(2) and
CR 60(b)(1), (3), (4), and (11). The trial court denied the motion. In its order, the
trial court concluded that Kerl’s motion to dismiss was not properly filed and served
in accordance with King County Local Civil Rules (KCLCR) 7 and 12 and, thus,
Kerl had “failed to timely defend within the meaning of CR 55(a)(2).” The trial court
further concluded that relief was not warranted under any of the cited provisions of
CR 60(b).
2 No. 87230-3-I/3
Kerl appeals.
II. ANALYSIS
A. Whether the Trial Court Erred by Finding Kerl in Default
“Default judgments are generally disfavored in Washington based on an
overriding policy which prefers that parties resolve disputes on the merits.”
Showalter v. Wild Oats, 124 Wn. App. 506, 510, 101 P.3d 867 (2004). We review
a ruling on a motion to vacate a default judgment for abuse of discretion. Fowler
v. Johnson, 167 Wn. App. 596, 604, 273 P.3d 1042 (2012). “‘An abuse of
discretion is present only if there is a clear showing that the exercise of discretion
was manifestly unreasonable, based on untenable grounds, or based on untenable
reasons.’” Mitchell v. Wash. Inst. of Pub. Policy, 153 Wn. App. 803, 821, 225 P.3d
280 (2009) (quoting Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995)).
“[W]e are less likely to reverse a trial court decision that sets aside a default
judgment than a decision which does not.” Showalter, 124 Wn. App. at 511.
Pursuant to CR 55(a)(1), a plaintiff may move for a default order against a
defending party if the party “has failed to appear, plead, or otherwise defend as
provided by these rules and that fact is made to appear by motion and affidavit.”
Where the defending party has appeared but has not otherwise filed a responsive
pleading, the plaintiff may still move for a default order, provided that the plaintiff
serves the motion for default and affidavit on the defending party five days before
the hearing on the motion. CR 55(a)(3). A default judgment may be entered
against the defending party only after the court has entered an order finding the
defending party in default. CR 55(b).
3 No. 87230-3-I/4
If the defending party has appeared before the plaintiff filed the motion for
default, “the party may respond to the pleading or otherwise defend at any time
before the hearing on the motion.” CR 55(a)(2). A party who complies with this
rule cannot be deemed to be in default and a default order cannot be entered.
Duryea v. Wilson, 135 Wn. App. 233, 239, 144 P.3d 318 (2006). A party who was
not in default at the time a default order was entered is entitled to vacation of the
default order and any subsequent default judgment as a matter of right. Id. at 238.
Here, Kerl asserts that he was not in default when the trial court entered the
default order because he had filed a motion to dismiss the day prior to the
scheduled hearing. De Pasquale, on the other hand, contends that, because Kerl
did not correctly serve him with a copy of the motion to dismiss prior to the hearing
and did not properly note the motion in accordance with King County Local Civil
Rules, Kerl did not “respond or otherwise defend” against the complaint and was
therefore in default. We agree with Kerl.
De Pasquale urges us to hold that “otherwise defend” as used in CR 55(b)
requires the party to adhere to all procedural rules governing the filing and service
of motions. “We interpret court rules the same way we interpret statutes, looking
to the rule’s plain language to determine its meaning.” State v. Jieta, 12 Wn. App.
2d 227, 230, 457 P.3d 1209 (2020). “We determine a rule’s plain meaning by
considering its text, surrounding context, related provisions, and the regulatory
scheme as a whole.” Id. If the rule is unambiguous, we do not resort to other
means of statutory interpretation. Id. at 230-31.
The plain language of CR 55(a)(2) is unambiguous: a party that defends
4 No. 87230-3-I/5
against a claim by the plaintiff is not in default. The rule does not additionally
require perfection of service of the responsive pleading. Other provisions of CR
55 contain specific service requirements. For example, CR 55(a)(3) states, “Any
party who has appeared in the action for any purpose shall be served with a written
notice of motion for default and the supporting affidavit at least 5 days before the
hearing on the motion.” (Emphasis added.) However, CR 55(a)(2) does not
contain any service requirement.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DARIO DE PASQUALE, No. 87230-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CHRISTOPHER KERL,
Appellant.
DÍAZ, J. — Dario De Pasquale sued Christopher Kerl for unlawful eviction.
When Kerl failed to answer the complaint, De Pasquale moved for an order of
default and default judgment. The day before the scheduled hearing, Kerl filed,
but did not correctly serve, a motion to dismiss De Pasquale’s complaint. The trial
court found Kerl in default and entered a default order and judgment against him.
The court also denied Kerl’s motion to vacate the default order and judgment. Kerl
appeals, asserting that the order and judgment should have been vacated because
he was not in default. We agree, reverse and remand for further proceedings.
I. BACKGROUND
De Pasquale rented a property located in Seattle from Kerl starting in
September 2017. On or about March 18, 2022, Kerl served De Pasquale with a
notice to terminate tenancy, attesting that he intended to occupy the property as No. 87230-3-I/2
his primary residence. De Pasquale filed a lawsuit against Kerl, alleging that Kerl’s
assertion of intended occupancy was not true and thus he served the notice in
violation of RCW 59.18.650 and Seattle Municipal Code 22.205.070.
De Pasquale served Kerl a copy of the summons and complaint via certified
mail on May 14, 2024. On August 12, 2024, counsel for Kerl filed a notice of limited
appearance in the matter. On August 19, 2024, De Pasquale filed a motion for
order of default and default judgment. De Pasquale noted the hearing on the
motion for August 30, 2024.
On August 29, 2024, Kerl filed a motion to dismiss De Pasquale’s complaint.
Although he sent a copy to plaintiff’s counsel via email, Kerl did not correctly serve
De Pasquale with a copy of the motion until after the August 30 hearing. Kerl also
did not obtain a date for the hearing on his motion to dismiss prior to filing. The
trial court granted De Pasquale’s motion for default, finding that Kerl “has not filed
an Answer or other responsive pleading.” The court issued an order of default and
simultaneously entered a default judgment in De Pasquale’s favor for $14,900 in
damages, plus $327.49 in costs and $2,476.50 in attorney fees.
Kerl then filed a motion to vacate the default order under CR 55(a)(2) and
CR 60(b)(1), (3), (4), and (11). The trial court denied the motion. In its order, the
trial court concluded that Kerl’s motion to dismiss was not properly filed and served
in accordance with King County Local Civil Rules (KCLCR) 7 and 12 and, thus,
Kerl had “failed to timely defend within the meaning of CR 55(a)(2).” The trial court
further concluded that relief was not warranted under any of the cited provisions of
CR 60(b).
2 No. 87230-3-I/3
Kerl appeals.
II. ANALYSIS
A. Whether the Trial Court Erred by Finding Kerl in Default
“Default judgments are generally disfavored in Washington based on an
overriding policy which prefers that parties resolve disputes on the merits.”
Showalter v. Wild Oats, 124 Wn. App. 506, 510, 101 P.3d 867 (2004). We review
a ruling on a motion to vacate a default judgment for abuse of discretion. Fowler
v. Johnson, 167 Wn. App. 596, 604, 273 P.3d 1042 (2012). “‘An abuse of
discretion is present only if there is a clear showing that the exercise of discretion
was manifestly unreasonable, based on untenable grounds, or based on untenable
reasons.’” Mitchell v. Wash. Inst. of Pub. Policy, 153 Wn. App. 803, 821, 225 P.3d
280 (2009) (quoting Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995)).
“[W]e are less likely to reverse a trial court decision that sets aside a default
judgment than a decision which does not.” Showalter, 124 Wn. App. at 511.
Pursuant to CR 55(a)(1), a plaintiff may move for a default order against a
defending party if the party “has failed to appear, plead, or otherwise defend as
provided by these rules and that fact is made to appear by motion and affidavit.”
Where the defending party has appeared but has not otherwise filed a responsive
pleading, the plaintiff may still move for a default order, provided that the plaintiff
serves the motion for default and affidavit on the defending party five days before
the hearing on the motion. CR 55(a)(3). A default judgment may be entered
against the defending party only after the court has entered an order finding the
defending party in default. CR 55(b).
3 No. 87230-3-I/4
If the defending party has appeared before the plaintiff filed the motion for
default, “the party may respond to the pleading or otherwise defend at any time
before the hearing on the motion.” CR 55(a)(2). A party who complies with this
rule cannot be deemed to be in default and a default order cannot be entered.
Duryea v. Wilson, 135 Wn. App. 233, 239, 144 P.3d 318 (2006). A party who was
not in default at the time a default order was entered is entitled to vacation of the
default order and any subsequent default judgment as a matter of right. Id. at 238.
Here, Kerl asserts that he was not in default when the trial court entered the
default order because he had filed a motion to dismiss the day prior to the
scheduled hearing. De Pasquale, on the other hand, contends that, because Kerl
did not correctly serve him with a copy of the motion to dismiss prior to the hearing
and did not properly note the motion in accordance with King County Local Civil
Rules, Kerl did not “respond or otherwise defend” against the complaint and was
therefore in default. We agree with Kerl.
De Pasquale urges us to hold that “otherwise defend” as used in CR 55(b)
requires the party to adhere to all procedural rules governing the filing and service
of motions. “We interpret court rules the same way we interpret statutes, looking
to the rule’s plain language to determine its meaning.” State v. Jieta, 12 Wn. App.
2d 227, 230, 457 P.3d 1209 (2020). “We determine a rule’s plain meaning by
considering its text, surrounding context, related provisions, and the regulatory
scheme as a whole.” Id. If the rule is unambiguous, we do not resort to other
means of statutory interpretation. Id. at 230-31.
The plain language of CR 55(a)(2) is unambiguous: a party that defends
4 No. 87230-3-I/5
against a claim by the plaintiff is not in default. The rule does not additionally
require perfection of service of the responsive pleading. Other provisions of CR
55 contain specific service requirements. For example, CR 55(a)(3) states, “Any
party who has appeared in the action for any purpose shall be served with a written
notice of motion for default and the supporting affidavit at least 5 days before the
hearing on the motion.” (Emphasis added.) However, CR 55(a)(2) does not
contain any service requirement. Where a rule uses certain language in one
provision but not in another, that difference is reflective of the intent of the rule’s
drafters. Cf. United Parcel Serv., Inc. v. Dep’t of Revenue, 102 Wn.2d 355, 362,
687 P.2d 186 (1984). Had the rule drafters intended proof of service to be a
prerequisite to avoiding default, they would have said so. 1
Similarly, CR 55(a)(2) does not require that a defending party strictly adhere
to local procedural rules for scheduling of motions to avoid default. CR 55(a)(2)
plainly states that a defending party “may respond to the pleading or otherwise
defend at any time before the hearing on the motion.” (Emphasis added.) Local
procedural rules, such as KCLCR 4 and 12, cannot be read to shorten this
deadline. Jones v. City of Seattle, 179 Wn.2d 322, 344, 314 P.3d 380 (2013) (“The
local rules may not be applied in a manner inconsistent with the civil rules[.]”).
Even if we were to find CR 55(a)(2) ambiguous, we would still hold that Kerl
1 While not binding on our court, we note that federal courts construing Federal
Rule of Civil Procedure 55 have held similarly. See, e.g., Rashidi v. Albright, 818 F. Supp. 1354, 1355-56 (D. Nev. 1993), aff’d, 39 F.3d 1188 (9th Cir. 1994) (“Failure to ‘otherwise defend’ presumes the absence of some affirmative action on the part of a defendant which would operate as a bar to the satisfaction of the moving party’s claim.”).
5 No. 87230-3-I/6
had “otherwise defended,” such that he was not in default at the time the default
order was entered. Courts in our state have repeatedly held that CR 55 should be
construed liberally, in keeping with the court’s policy disfavoring default judgments.
Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007).
For instance, we have held that a party need not effect proper service of an
answer, or even file an answer an all, in order to “appear” to be entitled to notice
of a motion for default under CR 55(a)(3). See Lamb v. Lamb, 33 Wn. App. 2d
609, 616, 563 P.3d 465 (2025) (holding that emails to plaintiff’s counsel entitled
defendant to notice of motion for default); Sacotte Constr., Inc. v. Nat’l Fire &
Marine Ins. Co., 143 Wn. App. 410, 416, 177 P.3d 1147 (2008) (holding that phone
call to plaintiff’s counsel after service of complaint entitled defendant to notice of
motion for default). To effectuate the court’s policy of disfavoring default
judgments, “otherwise defend” as used in CR 55(a)(2) must similarly be construed
broadly.
Here, Kerl filed his motion to dismiss and provided copies of the motion and
supporting affidavit to the court and opposing counsel prior to the hearing on De
Pasquale’s motion for default. These actions fell well within a broad reading of the
phrase “otherwise defend.”
Because Kerl “otherwise defended” by filing a motion to dismiss prior to the
hearing on De Pasquale’s motion for default, Kerl was not in default and the trial
court abused its discretion in entering a default order and subsequent judgment
against him. And because Kerl was entitled to have the default judgment and order
vacated as a matter of right, Duryea, 135 Wn. App. at 239, the court similarly
6 No. 87230-3-I/7
abused its discretion by not granting Kerl’s motion to vacate. The decision of the
trial court is reversed and the default order and judgment should be vacated on
remand. 2
B. Attorney Fees on Appeal
De Pasquale requests an award of attorney fees on appeal under RAP 18.1,
RCW 59.18.650, and Seattle Municipal Code 22.205.070. RAP 18.1 allows us to
award reasonable attorney fees or expenses “[i]f applicable law grants to a party
the right to recover” such attorney fees or expenses. RCW 59.18.650 and Seattle
Municipal Code 22.205.070 both permit the prevailing party to recover attorney
fees and costs. Because De Pasquale is not the prevailing party, we deny his
request for fees.
III. CONCLUSION
We reverse, vacate the order of default and judgment, and remand for
further proceedings.
WE CONCUR:
2 Because we reverse the trial court on this ground, we do not consider any of
Kerl’s arguments under CR 60. 7