### FILED August 1, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE SALUD RUIZ, ) ) Respondent, ) ) V. ) ) JOSE G. CERVANTES and CYNTHIA ) CERVANTES, husband andwife, ) ) Appellants, ) ) RODOLFO HURTARDO and CARMEN ) HURTARDO, husband and wife; FELIPE ) HURTARDO, JR., and CHRISTINA ) HURTARDO, husband and wife, ) ) Defendants. ) No. 

### 33592-5-111

UNPUBLISHED OPINION

FEARING, C. J. -AppellantsJose and Cynthia Cervantes seekto vacate a default judgmententered againstthem whenthey failed to appear at a settlement conference and pretrial managementconference. We holdthe trial court did not abuse its discretion when denying the Cervantes' motion to vacate.No. 33592-5-III Ruizv. Cervantes
FACTS This dispute concerns seventy acres offarmland located outside Prosser. Salud Ruiz contends that, in 2000, her deceased husband, Elias, and she purchasedthe 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 onthe land. TheRuizes farmed the property. Bythe end of2006, the Ruizes had paid the full purchase price of$280,000 in cash installments. PROCEDURE This lawsuit ended in a defaultjudgment. Thus, the case procedure, rather than the underlying facts, bears more importance to this appeal. OnJuly 29, 2010, Salud Ruiz filed a complaint for breach ofcontract, fraud, violation ofa constructive trust, specific performance, and quiettitle to real property. The complaint named Jose and Cynthia Cervantes, husband and wife, as two ofthe six named defendants. Other defendants leased the subject Benton County rural property. The other defendants eventually disclaimed any interest in the land, leavingthe 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 ofthe 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' motionto vacate 2No. 33592-5-III Ruiz v. Cervantes
the defaultjudgment 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 ofthe order ofwithdrawal 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 ManagementReport 01/12/2015 16. Pretrial Management Conference (in person) 01/15/2015 17. Trial Memoranda, Motions in Limine, Jury Instructions to be filed O 1/26/2015 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 orderto Jose Cervantes at 5881 Bethany Rd., Sunnyside, WA 98944. We do not know the provenance ofthe Bethany Road address. The postal service returned the letter to the court administrator's office with the notation "ATTEMPTEDNOT KNOWN, UNABLE TO FORWARD." CP at 27. On December 10, 2014, the superior court administrator's office sentthree 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
3No. 33592-5-III Ruiz v. Cervantes
returned the notices as "NOTDELIVERABLEAS ADDRESSED." CP at 32. An alert counsel for Salud Ruiz arranged for personal delivery ofthe three hearing notifications on the Cervantes. An affidavit ofservice declares that, onDecember 18, 2014, Dennis Copeland with Legal Couriers, Inc., served a copy ofthe notice of settlement conference, notice ofpretrial management conference, and notice oftrial date
on the Cervantes by personal service on Jose Cervantes at 7481 VanBell 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 commissionerwaited for one-halfhour, with only Rickey Kimbrough, attorney for Salud Ruiz, in appearance. Nevertheless, on January 8, Jose Cervantes called Kimbrough's office, and Kimbrough's secretary providedthe time and location for the hearing. On January 15, 2015, Rickey Kimbrough, attorney for Salud Ruiz, attendedthe scheduledpretrial management conference. The Cervantes did not appear. Kimbrough moved the trial court to grant defaultjudgment due to the Cervantes' failure to appear. The trial court entered no formal order ofdefault. The trial court impliedly granted the motion for default. Clerk's notes for that day read: Findings ofFact & Order ofDefault to be prepared byMr. Kimbrough [Salud Ruiz's counsel]. Case tobe set on a special set for presentation and entry oforders. Mr. Kimbrough will arrange for [hearing] with court [administration].
4No. 33592-5-III Ruiz v. Cervantes
CP at 46. OnFebruary 25, 2015, Salud Ruiz filed a proposed order ofdefault and motion for defaultjudgment, supported by declarations from Rickey Kimbrough and Ruiz. Salud Ruiz's declaration outlined the facts behind the sale oftheproperty from the Cervantes to the Ruizes and the Ruizes' improvements and work ontheproperty. The declaration attached extensive exhibits confirming use ofthe land. On February 26, Dennis Copeland served the Cervantes with the pleadings supportingthe motion for default, the proposed order ofdefault, and a notice ofhearing scheduled for March 6, 2015, for entry ofthe 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 Courtthe proposed order ofdefault and entry ofdefaultjudgment. Jose Cervantes appeared pro se. The court allowed Cervantes to explainwhy he failed to appear for the settlement conference and the pretrial management conference. Cervantes first admitted that someone served himwith papers for the conferences. He stated thathe 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 overthe phone. The secretary directed Cervantes to the Benton County Superior Court office, presumably the court administration office where counsel andparties wait for conferences. 5No. 33592-5-III Ruiz v. Cervantes During the March 6 hearing, Cervantes later denied being served papers, buthe did not explain how he knew ofthe conference or conferences ifhe received no papers. Finally, he admitted being served with the papers for the March 6 default hearing. In response, Rickey Kimbrough commentedthat the court administrator's office lacked the correct address for the Cervantes so Salud Ruiz hired aprocess server to serve all notices and pleadings on the Cervantes. At the conclusion ofthe March 6, 2015, default hearing, the trial court observed that the lawsuit began in 2010. The court noted that the Cervantes held an obligationto forward their mailing address to the court, and Ruiz had even served Jose Cervantes with notices and pleadings. The trial court entered an order ofdefault and a decree quieting title in the Benton County farmland in favor ofSalud Ruiz. Jose and Cynthia Cervantes procured new legal counsel. On May 14, 2015, Jose Cervantes, through counsel, filed a motion to vacate the defaultjudgment and decree quieting title. On the day ofthe vacation hearing, May 29, 2015, Jose Cervantes called the Benton County clerk's office and requested the courtto strike his motion to vacate. The trial court, however, proceeded withthe hearing as scheduled. Cervantes failed to appear. Salud Ruiz, through counsel, appeared for the motion hearing and requested the court deny Cervantes' motion for relieffromjudgment. The trial court granted Ruiz's request and denied Cervantes' motion.

6No. 33592-5-III Ruizv. Cervantes
On July 26, 2015, Jose and Cynthia Cervantes filed a notice ofappeal from the May 29 order denying the Cervantes' motion for relieffromjudgment. The Cervantes then obtained a stay ofthe appeal because they intended to renew theirtrial court motion for relieffromjudgment. OnNovember 12, 2015, Salud Ruiz sentthis court a letter requesting dismissal ofthe Cervantes' appeal because the Cervantes had notpursued the appeal and had notrenewed their motion for relieffromjudgment. Ourcourt commissionerruled that this court would dismiss the Cervantes' appeal without further notice on February 1, 2016, ifthe Cervantes did not (1) file their statement of arrangements and designation ofclerk'spapers by February 1, or (2) file a renewed motion for relieffromjudgmentwith the trial courtby the same date. OnJanuary 29, 2016, Jose and Cynthia Cervantes filed a new motion for relief from the March 6, 2015judgment. The Cervantes never applied for an orderto show
cause. The motion soughtto vacate the default order and defaultjudgmentunder Benton County LCR 16, CR 55, and CR 60, although the motion did not identify the subsections ofCR 55 or CR 60 on whichthe Cervantes basedthe motion. Through their counsel, the Cervantes argued their motion for reliefbefore the superior court on May 12, 2016. The court denied the Cervantes' motion. The Cervantes then resumedthis appeal. LAWAND ANALYSIS On appeal, Jose and Cynthia Cervantes contend the trial court abused its discretion when denying their motion for relieffromjudgmentfor four reasons. First, errors in the 7No. 33592-5-111 Ruiz v. Cervantes
service ofhearing notifications deprived them ofdue process. Second, Salud Ruiz never produced evidence to substantiate her substantive claims. Third, manifest injustice resulted from a refusal to vacate the defaultjudgment. Fourth, entry ofa default was an excessive sanction. Salud Ruiz responds that Jose and Cynthia Cervantes' motion for reliefwas procedurally deficient because they failed to bring theirrenewed 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 thejudgment 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 sufficientto set aside the order of default and defaultjudgment. 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 thejudgment quieting title. This court reviews a trial court's decision on a motion to vacate an order ofdefault
or defaultjudgment for abuse ofdiscretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007). Discretion is abused ifexercised on untenable grounds or for untenable
reasons. Morin v. Burris, 160 Wn.2d at 753; Yeck v. Department of Labor &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). 8No. 33592-5-III Ruiz v. Cervantes
Timeliness ofCR 60 Motion Before addressing the arguments presented by Jose and Cynthia Cervantes in favor ofvacating the default order, we must determine whether the Cervantes timely forwarded their motion. Ruiz's argument concerns the Cervantes' second motionto 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). CR60 declares, in relevant part: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as arejust, the court may relieve aparty orthe party's legal representative from a final judgment, order, orproceeding for the following reasons: (1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining ajudgment or order; (5) Thejudgment is void; (11) Any otherreasonjustifyingrelieffrom the operation ofthe judgment. The motion shall be made within a reasonable time and for reasons ( 1 ), (2) or (3) not more than 1year after thejudgment, order, orproceeding was entered ortaken
.... (Emphasis added and boldface omitted.) SaludRuiz 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 ofthe hearing. Because the Cervantes filed the motion to vacate on January 29, 2016, within one year ofthe contested default order, entered on March 6, 2015, we reject Ruiz's argument.
9No. 33592-5-III Ruizv. Cervantes
Salud Ruiz's contention raises the question ofwhetherthe language ofCR 60(b) requiring a motion "be made" is satisfied by filing the motion to vacate or ifthe motion hearing must also occurwithin the one year limitation. We find no Washington cases directly addressing this issue. Nevertheless, older cases referto the satisfaction ofthe
one year limitation by a timely filed motion orpetition. 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 ofthe motion to vacate and does not require the hearing to occur within the one yearperiod. This courtwrote, inHa v. SignalElectric, Inc., 182 Wn. App. 436,454, 332 P.3d 991 (2014), withregard to what constitutes a reasonable time for purposes offiling a motionto vacate: The critical period is between when the movingparty became aware ofthejudgment and when it filed the motion to vacate. (Emphasis added.) InLuckettv. Boeing Co., 98 Wn. App. 307, 310, 989 P.2d 1144 (1999), we declared: [A] motion brought under CR60(b)(1) is timely only ifit isfiled within a reasonable time andnot more than one year from the date ofthe judgment
.... (Some emphasis added.) Such a rule makes sense because the movant often lacks control
overthe date by which the trial courtwill entertain the motion. Also, other states
10No. 33592-5-111 Ruizv. Cervantes

measure the timeliness ofa motion to vacate on the date ofthe filing ofthe motion, not the date ofthe motion hearing. Jonas v. Playhouse Square CondominiumAssociation, Inc., 173 Conn. App. 36,
_ A.3d
_ (2017); Minick v. City of Petaluma, 3 Cal. App. 5th 15, 34,207 Cal. Rptr. 3d 350 (2016); Ballv. Jones, 52 N.E.3d 813, 818 (Ind. Ct. App. 2016); Morton CountyHospital 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 reliefis asked, and supported by the affidavit ofthe applicant or the applicant's attorney setting forth a concise statement ofthe facts or errors upon which the motion is based, and ifthe moving party be a defendant, the facts constituting a defense to the action orproceeding. (2) Notice. Upon the filing ofthe motion and affidavit, the court shall enter an order fixing the time and place ofthe hearing thereofand directing all parties to the action or proceeding who may be affected thereby to appear and show cause why the reliefasked 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 ofwhether the movant holds an obligation to procure the orderto 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, 11No. 33592-5-III Ruiz v. Cervantes pursuant to CR 60(b), filed and served on the plaintiffs' attorney a motionto vacate a judgment. The defendant did not procure an orderto show cause, and the defendant did not serve the plaintiffs personally with the motion. Afterthe trial court vacated the defaultjudgment, the plaintiffs argued on appeal that the trial court lackedjurisdictionto 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 ofHearing Notices We now move to the arguments asserted by Jose and Cynthia Cervantes in support oftheir quest to vacate the defaultjudgment and decree quieting title. They first contend that errors in the service ofhearing notifications deprived them ofdue process such that the defaultjudgment is void. Under CR 55(a)(3), ifa party has "appeared" before a motion for default has been filed, that party is entitled to notice ofthe 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, ifa defendant has appeared but was not givenpropernotice priorto entry ofthe order ofdefault, the defendant is entitled to vacation ofthe defaultjudgment as a matter ofright. 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

12No. 33592-5-III Ruiz v. Cervantes convincingproof, that the service was irregular. Allen v. Starr, 104 Wash. 246, 247, 176 P. 2 (1918). The question ofeffective service is one offact. Salud Ruizpresentedthe court with affidavits establishingproofofservice ofthe settlement conference notice, the pretrial management conference notice, and the hearing for the defaultjudgment motion. Jose Cervantes even appeared at the defaultjudgmenthearing, 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 ofthe settlement conference and pretrial management conference and argued he neverreceived the notices. The trial court concluded that Cervantes received sufficient notice. Based on the affidavits ofservice and Jose Cervantes' own comments, the trial court did not abuse its discretion in finding proper service. Evidence SubstantiatingRuiz'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 defaultjudgment subjectto bona fide good faith challenge. The record belies this argument. In support ofthe motion for entry ofthe defaultjudgment, Ruiz filed a declaration that detailed the sale ofthe property to her and her husband; the payments

13No. 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 supporttheir 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 ifthe default judgmentremains 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 supporttheir implicit assertion that manifest injustice is a basis for reversing the denial ofa motion to vacate a defaultjudgment. White v. Holm recognizes that aproceeding to vacate or set aside a default judgment is equitable in character, and the reliefsought 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 defaultjudgment.

14No. 33592-5-111 Ruiz v. Cervantes
A party moving to vacate a defaultjudgmentmust 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 ofthe defaultjudgment; and (4) that the plaintiffwill not suffer a substantial hardship ifthe defaultjudgmentis 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 offour 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 relieffromjudgment. 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 defaultjudgments are disfavored because it is the policy ofthe law that controversies be determined on the merits rather than by default. Griggs v. AverbeckRealty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979). Nevertheless, we conclude the trial courtheld discretion to enter the default, and the trial court did not abuse its discretion.

15No. 33592-5-III Ruiz v. Cervantes
CR 55(a)(l)reads: 

### (a) Entry ofDefault. (1) Motion. When aparty against whom ajudgmentfor affirmative reliefis soughthas failed to appear, plead, or otherwise defend as provided by these rules and that fact is made to appearby 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 nonappearancejustified entry ofa defaultjudgment. Kutz v. IndependentPublishing Co., Inc., 101 N.M. 587, 589, 686 P.2d 277 (Ct. App. 1984); BushAviationEnterprises 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, ifa party or its attorney: (i) fails to appear at a scheduling or otherpretrial 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 otherpretrial 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) Strikingpleadings in whole or in part; (3) Staying further proceedings until the order is obeyed; (4) Dismissing the action orproceeding in whole orin part; (5) Renderinga defaultjudgmentagainst the disobedientparty; or (6) Treating as contempt ofcourtthe failure to obey any order except an order to submit to aphysical or mental examination.

16No. 33592-5-111 Ruizv. Cervantes (Emphasis added.) Jose and Cynthia Cervantes do not argue thatthe Benton County local court rule conflicts with CR 55. The dissentjustifiably questions the validity ofour decision in light ofTacoma Recycling, Inc. v. CapitolMaterialHandling Co., 34 Wn. App. 392, 661 P.2d 609 (1983), which declared that a defaultjudgment should not be taken against a defendant who fails to appear at trial ifthe defendant answered the complaint. We observe, however, that plaintiffTacoma Recycling never identified either a Washington civil rule or a local rule that permitted.entry ofa defaultjudgmentwhen the defendant failed to appear at trial. Some facets ofTacoma Recycling, Inc. v. CapitolMaterialHandling Co. are consistent with our opinion. Despite defendant failing to appear attrial, plaintiff presented evidence to substantiate its claim, including damages. The trialjudge orally ruled in favor ofplaintiffon completion ofthe evidence. Six weeks later, without notice todefendant, the trial court, on plaintiffspresentment, signedthe plaintiffsproposed findings offact, conclusions oflaw, andjudgment. On appeal, plaintiffsought to uphold thejudgment on the ground that defendant defaulted by its failure to appear at trial. This court disagreed and vacated thejudgment. This court ruled thatplaintiffshouldhave given notice to defendant ofplaintiffs presentment ofthe findings, conclusions, and judgment. The case was remanded for plaintiffto provide the five days' notice for presentment offinal pleadings.

17No. 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 supportingpleadings. Atthe defaulthearing, Ruiz presented testimony, through affidavits, to support her claim. One may question the cogency ofa rule thatpermits a defaultjudgmentwhen the defendant fails to appear at a settlement conference or a pretrial management conference, but not ifthe defendant fails to appear at trial. A trial may be a more important proceedingthan a settlement conference orpretrial conference. Nevertheless, some factors sustain such a distinction. Plaintiffmay only learn ofdefendant's absence from trial at the time oftrial whenplaintiffand her witnesses are already present in the courtroom. Plaintiffmay then summarily present her evidence andprevail without entering a default against defendant. A defaultjudgment attrial serves littlepurpose. Thepurpose ofa settlement conference is to encourage the parties to settle in orderto render a trial unnecessary and thereby conservejudicial resources. A party thwarts this purpose by failing to attend a settlement conference. The purpose ofa pretrial management conference is to streamline an upcoming trial in orderto conservejudicial
resources. A party thwarts this purpose by missing a pretrial conference. Soundreason lies behind entering a default when a defendant squandersjudicialresources.

18No. 33592-5-III Ruizv. Cervantes
CONCLUSION We affirm the trial court's denial ofJose and Cynthia Cervantes' motion to vacate the defaultjudgment and decree quieting title in favor ofSalud Ruiz. A majority ofthe 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:

19No. 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 ofa defaultjudgmentunder CR 55(a)(l). I do not believe that reading the rule that broadly is consistent with well settled Washington case lawthat "we do not favor defaultjudgments. We preferto 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 defaultjudgment cannot even be taken against a party who fails to attend the trial, ifthe party has appeared and answered the complaint. Tacoma Recycling, Inc. v. Cap. MaterialHandling Co., 34 Wn. App. 392, 395, 661 P.2d 609 (1983) (Aparty who files required pleadings is not subject to default merely because he is notpresent in court whenthe case is called for trial. (citing 10 CHARLES ALAN WRIGHT, ARTHURR. MILLER &MARY KAY KANE, FEDERALPRACTICEAND PROCEDURE §2682, at 409-10 (2d ed. 1983))). While Benton County LCR 16(a)(4)(B) and (d) authorize entry ofa default judgment for failure to attend a conference, I seriously question whetherthat 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 oflocal rules ofsuperior court, but subject to requirements that they notbe "in conflict with" or "inconsistentwith" rules prescribedby the SupremeNo. 33592-5-111 Ruizv. Cervantes (dissent)
Court. The Supreme Courtknows howto authorize entry ofa defaultjudgment as a sanction when it wants to. See CR 37(b)(2)(C). It has not done so in CR 16 or CR55. I disagree with the majority's unprecedented extension ofCR55(a)(l) and caution trial courts againstrelying onthis unpublished decision under GR 14.l(a). 

# ?Z~uJ~ /;;-. Siddoway, J.

2