FILED August 1, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
SALUD RUIZ, ) ) No. 33592-5-111 Respondent, ) ) V. ) ) JOSE G. CERVANTES and CYNTHIA ) CERVANTES, husband and wife, ) ) Appellants, ) UNPUBLISHED OPINION ) RODOLFO HURTARDO and CARMEN ) HURTARDO, husband and wife; FELIPE ) HURTARDO, JR., and CHRISTINA ) HURTARDO, husband and wife, ) ) Defendants. )
FEARING, C. J. -Appellants Jose and Cynthia Cervantes seek to vacate a default
judgment entered against them when they failed to appear at a settlement conference and
pretrial management conference. We hold the trial court did not abuse its discretion
when denying the Cervantes' motion to vacate. No. 33592-5-III Ruiz v. Cervantes
FACTS
This dispute concerns seventy acres of farmland located outside Prosser. Salud
Ruiz contends that, in 2000, her deceased husband, Elias, and she purchased the land
from appellants Jose and Cynthia Cervantes, husband and wife, on an oral contract.
Thereafter, the Ruizes planted cherry and apple trees and installed irrigation equipment
and wind machines on the land. The Ruizes farmed the property. By the end of 2006,
the Ruizes had paid the full purchase price of $280,000 in cash installments.
PROCEDURE
This lawsuit ended in a default judgment. Thus, the case procedure, rather than
the underlying facts, bears more importance to this appeal.
On July 29, 2010, Salud Ruiz filed a complaint for breach of contract, fraud,
violation of a constructive trust, specific performance, and quiet title to real property.
The complaint named Jose and Cynthia Cervantes, husband and wife, as two of the six
named defendants. Other defendants leased the subject Benton County rural property.
The other defendants eventually disclaimed any interest in the land, leaving the Cervantes
as the only active defendants.
The lawsuit moved slowly. On March 31, 2014, Scott Johnson, attorney for Jose
and Cynthia Cervantes, withdrew from representation of the defendants in the case.
Johnson's motion and declaration supporting his request to withdraw did not contain an
address for the Cervantes. A later declaration opposing the Cervantes' motion to vacate
2 No. 33592-5-III Ruiz v. Cervantes
the default judgment avers that the order allowing Scott Johnson to withdraw listed 1091
Harrison Road, Sunnyside, WA 98944, as the mailing address for the Cervantes. Our
copy of the order of withdrawal contains no mailing address for the Cervantes. The
Cervantes remained unrepresented by legal counsel for a year.
On October 10, 2014, the trial court entered a sixth amended civil case scheduling
order, which listed dates for the case, including:
14. Settlement Conference (in person) 01/08/2015 15. Last Date for Filing and Serving Trial Management Report 01/12/2015 16. Pretrial Management Conference (in person) 01/15/2015 17. Trial Memoranda, Motions in Limine, Jury Instructions to be filed O1/26/2015 18. Trial Date and Motions in Limine 02/09/2015
Clerk's Papers (CP) at 25 (boldface omitted). The court administrator's office mailed the
case scheduling order to Jose Cervantes at 5881 Bethany Rd., Sunnyside, WA 98944.
We do not know the provenance of the Bethany Road address. The postal service
returned the letter to the court administrator's office with the notation "ATTEMPTED-
NOT KNOWN, UNABLE TO FORWARD." CP at 27.
On December 10, 2014, the superior court administrator's office sent three hearing
notices, with scheduled dates, respectively for the settlement conference, pretrial
management conference, and trial. The court administrator mailed the notices to Jose and
Cynthia Cervantes at 5881 Bethany Rd., Sunnyside, WA 98944. The postal service
3 No. 33592-5-III Ruiz v. Cervantes
returned the notices as "NOT DELIVERABLE AS ADDRESSED." CP at 32.
An alert counsel for Salud Ruiz arranged for personal delivery of the three hearing
notifications on the Cervantes. An affidavit of service declares that, on December 18,
2014, Dennis Copeland with Legal Couriers, Inc., served a copy of the notice of
settlement conference, notice of pretrial management conference, and notice of trial date
on the Cervantes by personal service on Jose Cervantes at 7481 Van Bell Road,
Sunnyside, WA 98944.
Jose and Cynthia Cervantes failed to appear for the settlement conference
scheduled for January 8, 2015. The Benton County Superior Court commissioner waited
for one-half hour, with only Rickey Kimbrough, attorney for Salud Ruiz, in appearance.
Nevertheless, on January 8, Jose Cervantes called Kimbrough's office, and Kimbrough's
secretary provided the time and location for the hearing.
On January 15, 2015, Rickey Kimbrough, attorney for Salud Ruiz, attended the
scheduled pretrial management conference. The Cervantes did not appear. Kimbrough
moved the trial court to grant default judgment due to the Cervantes' failure to appear.
The trial court entered no formal order of default. The trial court impliedly granted the
motion for default. Clerk's notes for that day read:
Findings of Fact & Order of Default to be prepared by Mr. Kimbrough [Salud Ruiz's counsel]. Case to be set on a special set for presentation and entry of orders. Mr. Kimbrough will arrange for [hearing] with court [administration].
4 No. 33592-5-III Ruiz v. Cervantes
CP at 46.
On February 25, 2015, Salud Ruiz filed a proposed order of default and motion for
default judgment, supported by declarations from Rickey Kimbrough and Ruiz. Salud
Ruiz's declaration outlined the facts behind the sale of the property from the Cervantes to
the Ruizes and the Ruizes' improvements and work on the property. The declaration
attached extensive exhibits confirming use of the land. On February 26, Dennis
Copeland served the Cervantes with the pleadings supporting the motion for default, the
proposed order of default, and a notice of hearing scheduled for March 6, 2015, for entry
of the default by personally serving Jose Cervantes at 7481 Van Bell Road, Sunnyside,
WA 98944.
On March 6, 2015, Salud Ruiz, through counsel, presented to the Benton County
Superior Court the proposed order of default and entry of default judgment. Jose
Cervantes appeared pro se. The court allowed Cervantes to explain why he failed to
appear for the settlement conference and the pretrial management conference. Cervantes
first admitted that someone served him with papers for the conferences. He stated that he
arrived at the courthouse on time for a conference, although he does not identify which
conference. He lacked his information, so he called Salud Ruiz's attorney's office and
spoke to Rickey Kimbrough' s secretary over the phone. The secretary directed Cervantes
to the Benton County Superior Court office, presumably the court administration office
where counsel and parties wait for conferences.
5 No. 33592-5-III Ruiz v. Cervantes
During the March 6 hearing, Cervantes later denied being served papers, but he
did not explain how he knew of the conference or conferences if he received no papers.
Finally, he admitted being served with the papers for the March 6 default hearing. In
response, Rickey Kimbrough commented that the court administrator's office lacked the
correct address for the Cervantes so Salud Ruiz hired a process server to serve all notices
and pleadings on the Cervantes.
At the conclusion of the March 6, 2015, default hearing, the trial court observed
that the lawsuit began in 2010. The court noted that the Cervantes held an obligation to
forward their mailing address to the court, and Ruiz had even served Jose Cervantes with
notices and pleadings. The trial court entered an order of default and a decree quieting
title in the Benton County farmland in favor of Salud Ruiz.
Jose and Cynthia Cervantes procured new legal counsel. On May 14, 2015, Jose
Cervantes, through counsel, filed a motion to vacate the default judgment and decree
quieting title. On the day of the vacation hearing, May 29, 2015, Jose Cervantes called
the Benton County clerk's office and requested the court to strike his motion to vacate.
The trial court, however, proceeded with the hearing as scheduled. Cervantes failed to
appear. Salud Ruiz, through counsel, appeared for the motion hearing and requested the
court deny Cervantes' motion for relief from judgment. The trial court granted Ruiz's
request and denied Cervantes' motion.
6 No. 33592-5-III Ruiz v. Cervantes
On July 26, 2015, Jose and Cynthia Cervantes filed a notice of appeal from the
May 29 order denying the Cervantes' motion for relief from judgment. The Cervantes
then obtained a stay of the appeal because they intended to renew their trial court motion
for relief from judgment. On November 12, 2015, Salud Ruiz sent this court a letter
requesting dismissal of the Cervantes' appeal because the Cervantes had not pursued the
appeal and had not renewed their motion for relief from judgment. Our court
commissioner ruled that this court would dismiss the Cervantes' appeal without further
notice on February 1, 2016, if the Cervantes did not (1) file their statement of
arrangements and designation of clerk's papers by February 1, or (2) file a renewed
motion for relief from judgment with the trial court by the same date.
On January 29, 2016, Jose and Cynthia Cervantes filed a new motion for relief
from the March 6, 2015 judgment. The Cervantes never applied for an order to show
cause. The motion sought to vacate the default order and default judgment under Benton
County LCR 16, CR 55, and CR 60, although the motion did not identify the subsections
of CR 55 or CR 60 on which the Cervantes based the motion. Through their counsel, the
Cervantes argued their motion for relief before the superior court on May 12, 2016. The
court denied the Cervantes' motion. The Cervantes then resumed this appeal.
LAW AND ANALYSIS
On appeal, Jose and Cynthia Cervantes contend the trial court abused its discretion
when denying their motion for relief from judgment for four reasons. First, errors in the
7 No. 33592-5-111 Ruiz v. Cervantes
service of hearing notifications deprived them of due process. Second, Salud Ruiz never
produced evidence to substantiate her substantive claims. Third, manifest injustice
resulted from a refusal to vacate the default judgment. Fourth, entry of a default was an
excessive sanction.
Salud Ruiz responds that Jose and Cynthia Cervantes' motion for relief was
procedurally deficient because they failed to bring their renewed motion within one year
of judgment, as required by CR 60(e)(l) and (2), and because the Cervantes never
procured an order to show cause as to why the judgment should not be vacated. Ruiz also
argues that default was an appropriate sanction under Benton County LCR 16 and the
Cervantes have failed to demonstrate good cause sufficient to set aside the order of
default and default judgment. We reject Salud Ruiz's procedural arguments.
Nevertheless, we hold that the trial court did not abuse its discretion when denying the
motion to vacate the default order and the judgment quieting title.
This court reviews a trial court's decision on a motion to vacate an order of default
or default judgment for abuse of discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161
P.3d 956 (2007). Discretion is abused if exercised on untenable grounds or for untenable
reasons. Morin v. Burris, 160 Wn.2d at 753; Yeck v. Department ofLabor & Industries,
27 Wn.2d 92, 95, 176 P.2d 359 (1947). A trial court that misunderstands or misapplies
the law bases its decision on untenable grounds. Little v. King, 160 Wn.2d 696, 703, 161
P.3d 345 (2007).
8 No. 33592-5-III Ruiz v. Cervantes
Timeliness of CR 60 Motion
Before addressing the arguments presented by Jose and Cynthia Cervantes in favor
of vacating the default order, we must determine whether the Cervantes timely forwarded
their motion. Ruiz's argument concerns the Cervantes' second motion to vacate, filed
January 29, 2016, and heard on May 12, 2016. Ruiz asserts the Cervantes failed to bring
the motion to vacate in accordance with CR 60(b), (e)(l), and (e)(2).
CR 60 declares, in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: ( 1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(5) The judgment is void;
( 11) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time and for reasons ( 1), (2) or (3) not more than 1 year after the judgment, order, or proceeding was entered or taken ....
(Emphasis added and boldface omitted.) Salud Ruiz contends that the Cervantes failed to
meet the one year deadline in CR 60(b) because the May 12, 2016 hearing lay outside the
time limit. We disagree that we measure timeliness by the date of the hearing. Because
the Cervantes filed the motion to vacate on January 29, 2016, within one year of the
contested default order, entered on March 6, 2015, we reject Ruiz's argument.
9 No. 33592-5-III Ruiz v. Cervantes
Salud Ruiz's contention raises the question of whether the language of CR 60(b)
requiring a motion "be made" is satisfied by filing the motion to vacate or if the motion
hearing must also occur within the one year limitation. We find no Washington cases
directly addressing this issue. Nevertheless, older cases refer to the satisfaction of the
one year limitation by a timely filed motion or petition. Haaga v. Saginaw Logging Co.,
170 Wash. 93, 98, 15 P.2d 655 (1932); Spokane Valley Power Co. v. Northern Pacific
Railway Co., 99 Wash. 557,559, 169 P. 991 (1918).
Recent decisions, although not directly addressing the question at issue, support
the proposition that a CR 60 motion "be made" by filing of the motion to vacate and does
not require the hearing to occur within the one year period. This court wrote, in Ha v.
Signal Electric, Inc., 182 Wn. App. 436,454, 332 P.3d 991 (2014), with regard to what
constitutes a reasonable time for purposes of filing a motion to vacate:
The critical period is between when the moving party became aware of the judgment and when it filed the motion to vacate.
(Emphasis added.) In Luckett v. Boeing Co., 98 Wn. App. 307, 310, 989 P.2d 1144
( 1999), we declared:
[A] motion brought under CR 60(b )( 1) is timely only if it is filed within a reasonable time and not more than one year from the date of the judgment ....
(Some emphasis added.) Such a rule makes sense because the movant often lacks control
over the date by which the trial court will entertain the motion. Also, other states
10 No. 33592-5-111 Ruiz v. Cervantes
measure the timeliness of a motion to vacate on the date of the filing of the motion, not
the date of the motion hearing. Jonas v. Playhouse Square Condominium Association,
Inc., 173 Conn. App. 36, _ A.3d _ (2017); Minick v. City ofPetaluma, 3 Cal. App. 5th
15, 34,207 Cal. Rptr. 3d 350 (2016); Ball v. Jones, 52 N.E.3d 813, 818 (Ind. Ct. App.
2016); Morton County Hospital v. Howell, 51 Kan. App. 2d 1103, 1107, 361 P.3d 515
(2015).
Order on Show Cause
Salud Ruiz also contends that the Cervantes failed to abide by CR 60(e)(l) and (2)
because the Cervantes never obtained an order to show cause. CR 60( e) provides
(1) Motion. Application shall be made by motion filed in the cause stating the grounds upon which relief is asked, and 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. (2) Notice. Upon the filing of the motion and affidavit, the court shall enter an order fixing the time and place of the hearing thereof and directing all parties to the action or proceeding who may be affected thereby to appear and show cause why the relief asked for should not be granted.
(Emphasis added.) We note that the rule directs the court to enter the order, but does not
expressly demand that the movant must apply to the trial court for the order.
Regardless of whether the movant holds an obligation to procure the order to show
cause, we hold that Salud Ruiz waived this alleged defect to the Cervantes' motion.
Grossman v. Will, IO Wn. App. 141,516 P.2d 1063 (1973) controls. The defendant,
11 No. 33592-5-III Ruiz v. Cervantes
pursuant to CR 60(b ), filed and served on the plaintiffs' attorney a motion to vacate a
judgment. The defendant did not procure an order to show cause, and the defendant did
not serve the plaintiffs personally with the motion. After the trial court vacated the
default judgment, the plaintiffs argued on appeal that the trial court lacked jurisdiction to
entertain the motion because the defendant failed to serve them personally. This court
held that the plaintiffs waived this argument by appearing and defending the motion to
vacate.
Service of Hearing Notices
We now move to the arguments asserted by Jose and Cynthia Cervantes in support
of their quest to vacate the default judgment and decree quieting title. They first contend
that errors in the service of hearing notifications deprived them of due process such that
the default judgment is void.
Under CR 55(a)(3), if a party has "appeared" before a motion for default has been
filed, that party is entitled to notice of the motion before the trial court may enter a valid
default order. Smith v. Arnold, 127 Wn. App. 98, 103-04, 110 P.3d 257 (2005).
Consequently, if a defendant has appeared but was not given proper notice prior to entry
of the order of default, the defendant is entitled to vacation of the default judgment as a
matter of right. Tiffin v. Hendricks, 44 Wn.2d 837, 847, 271 P.2d 683 (1954). After
judgment, the burden is on the person attacking the service to show, by clear and
12 No. 33592-5-III Ruiz v. Cervantes
convincing proof, that the service was irregular. Allen v. Starr, 104 Wash. 246, 247, 176
P. 2 (1918).
The question of effective service is one of fact. Salud Ruiz presented the court
with affidavits establishing proof of service of the settlement conference notice, the
pretrial management conference notice, and the hearing for the default judgment motion.
Jose Cervantes even appeared at the default judgment hearing, so he cannot argue
ineffective service for the last hearing. He also stated he responded to the settlement
conference notice, although he may have gone to the wrong courthouse location. During
the default hearing, Jose Cervantes alternatively conceded receiving notice of the
settlement conference and pretrial management conference and argued he never received
the notices. The trial court concluded that Cervantes received sufficient notice. Based on
the affidavits of service and Jose Cervantes' own comments, the trial court did not abuse
its discretion in finding proper service.
Evidence Substantiating Ruiz's Claims
Jose and Cynthia Cervantes argue Salud Ruiz failed to produce evidence to
substantiate her claims for specific performance and quiet title, and this failure renders
the default judgment subject to bona fide good faith challenge. The record belies this
argument. In support of the motion for entry of the default judgment, Ruiz filed a
declaration that detailed the sale of the property to her and her husband; the payments
13 No. 33592-5-III Ruiz v. Cervantes
made by the couple, and the steps taken to improve and farm the land. Ruiz supported
her testimony with extensive exhibits.
Jose and Cynthia Cervantes supply this court no legal authority to support their
contention that Salud Ruiz failed to support her claims. Therefore, we do not address the
argument further. This court does not review errors alleged but not argued, briefed, or
supported with citation to authority. RAP 10.3; Valente v. Bailey, 74 Wn.2d 857, 858,
447 P.2d 589 (1968); Meeks v. Meeks, 61 Wn.2d 697,698,379 P.2d 982 (1963);
Avellaneda v. State, 167 Wn. App. 474, 485 n.5, 273 P.3d 477 (2012).
Manifest Injustice
Jose and Cynthia Cervantes contend that manifest injustice will result if the default
judgment remains effective. In support, they claim to have admissible evidence
contradicting Salud Ruiz's claim to the property. They rely on White v. Holm, 73 Wn.2d
348,438 P.2d 581 (1968) to support their implicit assertion that manifest injustice is a
basis for reversing the denial of a motion to vacate a default judgment.
White v. Holm recognizes that a proceeding to vacate or set aside a default
judgment is equitable in character, and the relief sought or afforded shall be administered
in accordance with equitable principles and terms. 73 Wn.2d at 351. The Supreme Court
in White v. Holm, however, established factors to consider when ruling on a motion to
vacate a default judgment.
14 No. 33592-5-111 Ruiz v. Cervantes
A party moving to vacate a default judgment must be prepared to 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.
Little v. King, 160 Wn.2d 696, 703-04, 161 P.3d 345 (2007) (citing White v. Holm, 73
Wn.2d at 352). Under this test, evidence supporting a defense is only one of four factors
the movant must fulfill.
The trial court determined that Jose and Cynthia Cervantes did not timely appear
for the pretrial management conference and the settlement conference. The record shows
that neither Cervantes appeared at all. Therefore, the trial court did not abuse its
discretion in denying the Cervantes' CR 60 motion for relief from judgment.
Draconian Relief
Finally the Cervantes argue that the trial court should have entered, on their
nonappearance at the settlement and pretrial management conferences, a sanction less
austere than default so that the court could resolve the suit on its merits. We note that
default judgments are disfavored because it is the policy of the law that controversies be
determined on the merits rather than by default. Griggs v. Averbeck Realty, Inc., 92
Wn.2d 576, 581, 599 P.2d 1289 (1979). Nevertheless, we conclude the trial court held
discretion to enter the default, and the trial court did not abuse its discretion.
15 No. 33592-5-III Ruiz v. Cervantes
CR 55(a)(l) reads:
(a) Entry of Default. ( 1) Motion. When a party against whom a judgment for affirmative relief is sought has failed to appear, plead, or otherwise defend as provided by these rules and that fact is made to appear by motion and affidavit, a motion for default may be made.
(Emphasis added.) In two decisions, courts held that a defendant's failure to attend a
pretrial conference were failures to "otherwise defend," and the nonappearance justified
entry of a default judgment. Kutz v. Independent Publishing Co., Inc., 101 N.M. 587,
589, 686 P.2d 277 (Ct. App. 1984); Bush Aviation Enterprises v. Crownover, 206 So. 2d
242, 243 (Fla. Dist. Ct. App. 1968).
Benton County LCR 16(d) expressly authorizes a default order on a party's failure
to appear at a pretrial or settlement conference. The rule reads:
(d) Sanctions. On motion or on its own, the court may issue any just orders, including those set forth herein, if a party or its attorney: (i) fails to appear at a scheduling or other pretrial conference; (ii) is substantially unprepared to participate-or does not participate in good faith-in the conference; or (iii) fails to obey a scheduling or other pretrial order. Sanctions may include the following: ( 1) Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (2) Striking pleadings in whole or in part; (3) Staying further proceedings until the order is obeyed; (4) Dismissing the action or proceeding in whole or in part; (5) Rendering a default judgment against the disobedient party; or (6) Treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
16 No. 33592-5-111 Ruiz v. Cervantes
(Emphasis added.) Jose and Cynthia Cervantes do not argue that the Benton County
local court rule conflicts with CR 55.
The dissent justifiably questions the validity of our decision in light of Tacoma
Recycling, Inc. v. Capitol Material Handling Co., 34 Wn. App. 392, 661 P.2d 609 (1983),
which declared that a default judgment should not be taken against a defendant who fails
to appear at trial if the defendant answered the complaint. We observe, however, that
plaintiff Tacoma Recycling never identified either a Washington civil rule or a local rule
that permitted.entry of a default judgment when the defendant failed to appear at trial.
Some facets of Tacoma Recycling, Inc. v. Capitol Material Handling Co. are
consistent with our opinion. Despite defendant failing to appear at trial, plaintiff
presented evidence to substantiate its claim, including damages. The trial judge orally
ruled in favor of plaintiff on completion of the evidence. Six weeks later, without notice
to defendant, the trial court, on plaintiffs presentment, signed the plaintiffs proposed
findings of fact, conclusions of law, and judgment. On appeal, plaintiff sought to uphold
the judgment on the ground that defendant defaulted by its failure to appear at trial. This
court disagreed and vacated the judgment. This court ruled that plaintiff should have
given notice to defendant of plaintiffs presentment of the findings, conclusions, and
judgment. The case was remanded for plaintiff to provide the five days' notice for
presentment of final pleadings.
17 No. 33592-5-III Ruiz v. Cervantes
Salud Ruiz served on the Cervantes, more than one week in advance, a notice of
the default hearing together with supporting pleadings. At the default hearing, Ruiz
presented testimony, through affidavits, to support her claim.
One may question the cogency of a rule that permits a default judgment when the
defendant fails to appear at a settlement conference or a pretrial management conference,
but not if the defendant fails to appear at trial. A trial may be a more important
proceeding than a settlement conference or pretrial conference. Nevertheless, some
factors sustain such a distinction. Plaintiff may only learn of defendant's absence from
trial at the time of trial when plaintiff and her witnesses are already present in the
courtroom. Plaintiff may then summarily present her evidence and prevail without
entering a default against defendant. A default judgment at trial serves little purpose.
The purpose of a settlement conference is to encourage the parties to settle in order to
render a trial unnecessary and thereby conserve judicial resources. A party thwarts this
purpose by failing to attend a settlement conference. The purpose of a pretrial
management conference is to streamline an upcoming trial in order to conserve judicial
resources. A party thwarts this purpose by missing a pretrial conference. Sound reason
lies behind entering a default when a defendant squanders judicial resources.
18 No. 33592-5-III Ruiz v. Cervantes
CONCLUSION
We affirm the trial court's denial of Jose and Cynthia Cervantes' motion to vacate
the default judgment and decree quieting title in favor of Salud Ruiz.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fe~
I CONCUR:
19 No. 33592-5-III
SIDDOWAY, J. (dissenting) - No reported Washington decision has ever held that
after a defendant appears and answers a complaint, his failure to attend a trial court
conference or obey a scheduling order constitutes a "fail[ ure] to ... otherwise defend"
that will support entry of a default judgment under CR 55(a)(l). I do not believe that
reading the rule that broadly is consistent with well settled Washington case law that "we
do not favor default judgments. We prefer to give parties their day in court and have
controversies determined on their merits." Morin v. Burris, 160 Wn.2d 745, 754, 161
P.3d 956 (2007) (citation omitted). A default judgment cannot even be taken against a
party who fails to attend the trial, if the party has appeared and answered the complaint.
Tacoma Recycling, Inc. v. Cap. Material Handling Co., 34 Wn. App. 392, 395, 661 P.2d
609 (1983) (A party who files required pleadings is not subject to default merely because
he is not present in court when the case is called for trial. (citing 10 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE
§ 2682, at 409-10 (2d ed. 1983))).
While Benton County LCR 16(a)(4)(B) and (d) authorize entry of a default
judgment for failure to attend a conference, I seriously question whether that local rule is
consistent with the civil rules, particularly CR 16 and CR 55. RCW 2.04.210 and CR
83(a) authorize the adoption of local rules of superior court, but subject to requirements
that they not be "in conflict with" or "inconsistent with" rules prescribed by the Supreme No. 33592-5-111 Ruiz v. Cervantes ( dissent)
Court. The Supreme Court knows how to authorize entry of a default judgment as a
sanction when it wants to. See CR 37(b)(2)(C). It has not done so in CR 16 or CR 55.
I disagree with the majority's unprecedented extension of CR 55(a)(l) and caution
trial courts against relying on this unpublished decision under GR 14.l(a).
?Z~ uJ~ /;;-. Siddoway, J.