Filed Washington State Court of Appeals Division Two
June 30, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
NANCY FERARA, No. 62618-7-II
Appellant,
v.
DEPARTMENT OF SOCIAL AND HEALTH UNPUBLISHED OPINION SERVICES, ADULT PROTECTIVE SERVICES,
Respondent.
MAXA, J. – Nancy Ferara appeals the trial court’s denial of her motion to vacate the trial
court’s dismissal of her petition for review of her administrative appeal for failure to prosecute
the appeal. Ferara’s administrative appeal sought reversal of the finding by the Department of
Social and Health Services (DSHS) that she had neglected a vulnerable adult in her care.
When Ferara’s appeal was filed in superior court, the court entered a notice regarding
administrative appeals. The notice stated that if the case was not subject to direct review by the
Court of Appeals, the parties should file a motion seeking judicial assignment and issuance of a
case schedule. The notice further stated that the case would be reviewed after 90 days, and the No. 62618-7-II
case would be dismissed if there was no evidence of the petitioner moving the case toward
completion.
No motion for issuance of a case schedule was filed. And after DSHS filed the
administrative record, 90 days passed without any action on the case. The superior court entered
the order of dismissal of Ferara’s petition because there was no evidence of the case moving
toward completion for 90 days.
Ferara moved to vacate this order under CR 60(b)(1), arguing that her attorney did not
take the actions required to move the case forward because her attorney mistakenly failed to
download the case schedule. The trial court denied her motion. On appeal, Ferara argues that
the court abused its discretion because she had a prima facie defense to DSHS’s allegations and
because her attorney’s misunderstanding of the notice issued by the superior court constituted
excusable neglect.
We affirm the trial court’s denial of Ferara’s motion to vacate the dismissal of her
administrative appeal.
FACTS
In 2020, DSHS made a substantiated finding that Ferara had neglected a vulnerable adult
in her care. Ferara initiated an administrative proceeding seeking reversal of this finding. The
matter was heard before an administrative law judge, who entered an initial order affirming
DSHS’s neglect finding. Ferara appealed to the DSHS Board of Appeals, and the reviewing
judge affirmed the initial order.
Ferara filed a petition for review in superior court seeking reversal of the Board of
Appeals decision on July 24, 2024. Her petition for review stated, “Petitioner maintains the facts
2 No. 62618-7-II
do not support the decision.” Clerk’s Papers (CP) at 2. The petition attached the Board of
Appeals decision.
The next day, the superior court issued a notice that stated,
Pursuant to RCW 34.05.518 the final decision of an administrative agency in an adjudicative proceeding may be directly reviewed by the Court of Appeals upon certification by the Superior Court.
For any record supplementation issues or to obtain certification for direct appeal, parties should note such matters on the Chief Civil calendar. King County Superior Court expects the record supplementation and record certification to be concluded in the Superior Court within 90 days of filing the initial petition.
If this case is not subject to 34.05.518, parties should file a motion before the respective chief civil judge seeking judicial assignment and a case schedule.
If an Order on Certification for Direct Review or Order of Dismissal is not entered within 90 days from the date stamped on this notice, your case will be reviewed. If there is no evidence of moving your case toward completion, your case will be dismissed by the Clerk. At that time, a “Clerk’s Order of Dismissal” will then be entered.
CP at 4824 (emphasis added).
On August 14, DSHS filed a certified copy of the administrative record, totaling 3724
pages. On August 15, DSHS filed the verbatim report of proceedings from the administrative
action, totaling 998 pages.
After filing the petition for review, Ferara took no action. She did not indicate that she
was seeking direct review by the Court of Appeals. And she did not file a motion seeking
judicial assignment and a case schedule. No action occurred on the case after DSHS’s filing on
August 15.
On November 14 – 91 days after the last case activity – the superior court entered an
order dismissing Ferara’s appeal without prejudice. The order stated the clerk may dismiss an
administrative appeal after 90 days if there is no evidence that the case was being moved toward
3 No. 62618-7-II
completion. And the order stated that the case was filed more than 90 days before the date of the
order, and there were no future hearings or trial dates scheduled.
On December 17, Ferara’s attorney filed a motion to vacate the dismissal of her appeal
pursuant to CR 60(b). The motion asserted that “[a] copy of the case schedule was not
downloaded and placed in Appellant’s counsel’s electronic file.” CP at 4800. Similarly, the
argument section stated that “[a]t the time of filing, a copy of the electronic case schedule issued
upon filing was not downloaded and not place[d] in Petitioner’s counsel’s electronic case file.”
CP at 4801. The attorney also stated that this was her first time working on an administrative
appeal.
The motion to vacate stated, “Petitioner maintains the decision by the administrative
judge is not supported by the evidence.” CP at 4801. The motion cited the “Petition for Review
and case file” as supporting evidence. CP at 4801. Ferara requested that the court “find her
counsel’s mistake and inadvertence in the downloading and inclusion of the case schedule in the
electronic case file” supported vacating the order. CP at 4802.
DSHS opposed vacation of the dismissal order. DSHS pointed out that no case schedule
was issued because Ferara did not file a motion to obtain one, as required in the trial court’s July
25 notice. DSHS argued that the failure to read the court’s notice did not constitute a mistake or
excusable neglect. DSHS also argued that Ferara failed to follow the procedures required in CR
60(e)(1), including failing to identify substantial evidence in support of her defense in the appeal.
The trial court denied the motion to vacate the dismissal of Ferara’s appeal. The court’s
order noted that “no case schedule was ever issued” because Ferara failed to follow the
directions in the notice regarding administrative appeals. CP at 4835. The court ruled that
4 No. 62618-7-II
“Petitioner has failed to exercise due diligence, failed to establish excusable neglect, and failed to
follow the requirements of CR 60.” CP at 4835.
Ferara appeals the trial court’s denial of her motion to vacate the dismissal of her appeal.
ANALYSIS
A. MOTION TO VACATE DISMISSAL
Ferara argues that the trial court erred by denying her motion to vacate the order
dismissing her appeal for want of prosecution. We disagree.
1. Legal Principles
Under CR 60(b), a party may obtain relief from a final judgment based on various
grounds. Ferara relies only on CR 60(b)(1), which allows relief based on “Mistakes,
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Filed Washington State Court of Appeals Division Two
June 30, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
NANCY FERARA, No. 62618-7-II
Appellant,
v.
DEPARTMENT OF SOCIAL AND HEALTH UNPUBLISHED OPINION SERVICES, ADULT PROTECTIVE SERVICES,
Respondent.
MAXA, J. – Nancy Ferara appeals the trial court’s denial of her motion to vacate the trial
court’s dismissal of her petition for review of her administrative appeal for failure to prosecute
the appeal. Ferara’s administrative appeal sought reversal of the finding by the Department of
Social and Health Services (DSHS) that she had neglected a vulnerable adult in her care.
When Ferara’s appeal was filed in superior court, the court entered a notice regarding
administrative appeals. The notice stated that if the case was not subject to direct review by the
Court of Appeals, the parties should file a motion seeking judicial assignment and issuance of a
case schedule. The notice further stated that the case would be reviewed after 90 days, and the No. 62618-7-II
case would be dismissed if there was no evidence of the petitioner moving the case toward
completion.
No motion for issuance of a case schedule was filed. And after DSHS filed the
administrative record, 90 days passed without any action on the case. The superior court entered
the order of dismissal of Ferara’s petition because there was no evidence of the case moving
toward completion for 90 days.
Ferara moved to vacate this order under CR 60(b)(1), arguing that her attorney did not
take the actions required to move the case forward because her attorney mistakenly failed to
download the case schedule. The trial court denied her motion. On appeal, Ferara argues that
the court abused its discretion because she had a prima facie defense to DSHS’s allegations and
because her attorney’s misunderstanding of the notice issued by the superior court constituted
excusable neglect.
We affirm the trial court’s denial of Ferara’s motion to vacate the dismissal of her
administrative appeal.
FACTS
In 2020, DSHS made a substantiated finding that Ferara had neglected a vulnerable adult
in her care. Ferara initiated an administrative proceeding seeking reversal of this finding. The
matter was heard before an administrative law judge, who entered an initial order affirming
DSHS’s neglect finding. Ferara appealed to the DSHS Board of Appeals, and the reviewing
judge affirmed the initial order.
Ferara filed a petition for review in superior court seeking reversal of the Board of
Appeals decision on July 24, 2024. Her petition for review stated, “Petitioner maintains the facts
2 No. 62618-7-II
do not support the decision.” Clerk’s Papers (CP) at 2. The petition attached the Board of
Appeals decision.
The next day, the superior court issued a notice that stated,
Pursuant to RCW 34.05.518 the final decision of an administrative agency in an adjudicative proceeding may be directly reviewed by the Court of Appeals upon certification by the Superior Court.
For any record supplementation issues or to obtain certification for direct appeal, parties should note such matters on the Chief Civil calendar. King County Superior Court expects the record supplementation and record certification to be concluded in the Superior Court within 90 days of filing the initial petition.
If this case is not subject to 34.05.518, parties should file a motion before the respective chief civil judge seeking judicial assignment and a case schedule.
If an Order on Certification for Direct Review or Order of Dismissal is not entered within 90 days from the date stamped on this notice, your case will be reviewed. If there is no evidence of moving your case toward completion, your case will be dismissed by the Clerk. At that time, a “Clerk’s Order of Dismissal” will then be entered.
CP at 4824 (emphasis added).
On August 14, DSHS filed a certified copy of the administrative record, totaling 3724
pages. On August 15, DSHS filed the verbatim report of proceedings from the administrative
action, totaling 998 pages.
After filing the petition for review, Ferara took no action. She did not indicate that she
was seeking direct review by the Court of Appeals. And she did not file a motion seeking
judicial assignment and a case schedule. No action occurred on the case after DSHS’s filing on
August 15.
On November 14 – 91 days after the last case activity – the superior court entered an
order dismissing Ferara’s appeal without prejudice. The order stated the clerk may dismiss an
administrative appeal after 90 days if there is no evidence that the case was being moved toward
3 No. 62618-7-II
completion. And the order stated that the case was filed more than 90 days before the date of the
order, and there were no future hearings or trial dates scheduled.
On December 17, Ferara’s attorney filed a motion to vacate the dismissal of her appeal
pursuant to CR 60(b). The motion asserted that “[a] copy of the case schedule was not
downloaded and placed in Appellant’s counsel’s electronic file.” CP at 4800. Similarly, the
argument section stated that “[a]t the time of filing, a copy of the electronic case schedule issued
upon filing was not downloaded and not place[d] in Petitioner’s counsel’s electronic case file.”
CP at 4801. The attorney also stated that this was her first time working on an administrative
appeal.
The motion to vacate stated, “Petitioner maintains the decision by the administrative
judge is not supported by the evidence.” CP at 4801. The motion cited the “Petition for Review
and case file” as supporting evidence. CP at 4801. Ferara requested that the court “find her
counsel’s mistake and inadvertence in the downloading and inclusion of the case schedule in the
electronic case file” supported vacating the order. CP at 4802.
DSHS opposed vacation of the dismissal order. DSHS pointed out that no case schedule
was issued because Ferara did not file a motion to obtain one, as required in the trial court’s July
25 notice. DSHS argued that the failure to read the court’s notice did not constitute a mistake or
excusable neglect. DSHS also argued that Ferara failed to follow the procedures required in CR
60(e)(1), including failing to identify substantial evidence in support of her defense in the appeal.
The trial court denied the motion to vacate the dismissal of Ferara’s appeal. The court’s
order noted that “no case schedule was ever issued” because Ferara failed to follow the
directions in the notice regarding administrative appeals. CP at 4835. The court ruled that
4 No. 62618-7-II
“Petitioner has failed to exercise due diligence, failed to establish excusable neglect, and failed to
follow the requirements of CR 60.” CP at 4835.
Ferara appeals the trial court’s denial of her motion to vacate the dismissal of her appeal.
ANALYSIS
A. MOTION TO VACATE DISMISSAL
Ferara argues that the trial court erred by denying her motion to vacate the order
dismissing her appeal for want of prosecution. We disagree.
1. Legal Principles
Under CR 60(b), a party may obtain relief from a final judgment based on various
grounds. Ferara relies only on CR 60(b)(1), which allows relief based on “Mistakes,
inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.” The
party seeking relief under CR 60(b) has the burden of showing that relief is warranted. Gates v.
Homesite Ins. Co., 28 Wn. App. 2d 271, 278, 537 P.3d 1081 (2023).
CR 60(e)(1) states that a motion for vacation of a judgment must be “supported by the
affidavit of the applicant or the applicant’s attorney setting forth a concise statement of the facts
or errors upon which the motion is based, and if the moving party be a defendant, the facts
constituting a defense to the action or proceeding.”
Most CR 60(b)(1) cases involve motions to set aside a default judgment. E.g., Lesters
Painting, LLC v. Peraza, 36 Wn. App. 2d 845, 847-48, 585 P.3d 736 (2025); VanderStoep v.
Guthrie, 200 Wn. App. 507, 511, 402 P.3d 883 (2017). However, a trial court may apply CR
60(b) to vacate an order involuntarily dismissing a case for want of prosecution under CR 60(b).
See Vaughn v. Chung, 119 Wn.2d 273, 282-84, 830 P.2d 668 (1992) (addressing dismissal under
5 No. 62618-7-II
CR 41(b)(2)). The parties agree that the same rules for vacation of a default judgment apply to
vacation of a case dismissal for want of prosecution.
A trial court determines whether to set aside a default judgment under CR 60(b)(1) based
on a four-part test articulated in White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968); see
Sellers v. Longview Orthopedic Associates, PLLC, 11 Wn. App. 2d 515, 519-20, 455 P.3d 166
(2019). A defendant must show:
“(1) that there is substantial evidence supporting a prima facie defense; (2) that the failure to timely appear and answer was due to mistake, inadvertence, surprise, or excusable neglect; (3) that the defendant acted with due diligence after notice of the default judgment; and (4) that the plaintiff will not suffer a substantial hardship if the default judgment is vacated.”
Sellers, 11 Wn. App. 2d at 519-20 (quoting Little v. King, 160 Wn.2d 696, 703-04, 161 P.3d 345
(2007)).
The first two factors in the White test are the primary considerations, and the last two are
secondary. Lesters Painting, 36 Wn. App. 2d at 852. “ ‘Where a party fails to provide evidence
of a prima facie defense and fails to show that its failure to appear was occasioned by mistake,
inadvertence, surprise, or excusable neglect, there is no equitable basis for vacating judgment.’ ”
Id. at 852-53 (quoting Little, 160 Wn.2d at 706).
We review a trial court’s decision on a motion to set aside a default judgment for an abuse
of discretion. VanderStoep, 200 Wn. App. at 518. Discretion is abused if exercised based on
untenable grounds or for untenable reasons. Id.
2. Prima Facia Defense
Ferara argues that the administrative record that DSHS filed with the superior court
shows that she has a prima facie case for reversing DSHS’s neglect finding. She outlines her
6 No. 62618-7-II
arguments in her appellate brief. DSHS argues that Ferara failed to present any evidence with
her CR 60(b)(1) motion to support a prima facie case. We agree with DSHS.
The first White factor is the existence of substantial evidence to support a prima facie
defense. Sellers, 11 Wn. App. 2d at 519-20. A defendant must demonstrate the existence of a
prima facie defense “to avoid a useless subsequent trial.” TMT Bear Creek Shopping Ctr., Inc. v.
Petco Animal Supplies, Inc., 140 Wn. App. 191, 204, 165 P.3d 1271 (2007).
CR 60(e)(1) states that a motion for vacation of a judgment must be “supported by the
affidavit of the applicant or the applicant’s attorney setting forth a concise statement of . . . the
facts constituting a defense to the action or proceeding.” “To set aside a default judgment, a
defendant generally must submit affidavits identifying specific facts that support a prima facie
defense.” VanderStoep, 200 Wn. App. at 519. A defendant cannot rely on allegations,
conclusory statements, or speculation regarding the existence of a defense. Id. “The defendant
must present ‘concrete facts’ that support a defense.” Id. (quoting Ha v. Signal Elec., Inc., 182
Wn. App. 436, 449, 332 P.3d 991 (2014)).
Although Ferara was the petitioner for her administrative appeal, she was the person
against whom the neglect finding was made in the administrative action. Therefore, she was
required to present specific facts supporting her defense.
Here, Ferara presented no evidence to the trial court that would show a prima facie case.
In fact, she did not address this factor at all in her motion. The only reference in her motion to
the merits of her appeal was a single statement: “Petitioner maintains the decision by the
administrative judge is not supported by the evidence.” CP at 4801. This conclusory allegation
is insufficient to satisfy the first White factor. See VanderStoep, 200 Wn. App. at 519.
7 No. 62618-7-II
Ferara suggests that the administrative record that had been filed in the trial court was
sufficient to show a prima facie case. But she did not refer the trial court to any portions of that
record in support of her defense. The trial court was not required to wade through a 3724 page
record to search for something that might support Ferara’s motion.
Finally, Ferara does address the merits of her appeal in her appellate brief. But we can
only review what was presented to the trial court. A trial court does not abuse its discretion if it
fails to consider facts and arguments not called to its attention.
Accordingly, we conclude that Ferara failed to show in the trial court the existence of
substantial evidence to support a prima facie defense. As a result, she is not entitled to relief
under CR 60(b)(1). See CR 60(e)(1); VanderStoep, 200 Wn. App. at 519.1
B. ATTORNEY FEES
Ferara requests attorney fees under RCW 4.84.350(1). RCW 4.84.350(1) permits a court
to award attorney fees to “a qualified party that prevails in a judicial review of an agency action.”
We decline to award attorney fees to Ferara because she does not prevail in this appeal.
CONCLUSION
We affirm the trial court’s denial of Ferara’s motion to vacate the dismissal of her
1 Because Ferara failed to show a prima facie defense, we need not address the second White factor. However, we also conclude that the trial court did not abuse its discretion in finding the absence of excusable neglect.
8 No. 62618-7-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
PRICE, A.C.J.
CRUSER, J.