1

Filed 4/7/15 Reiter v. C.Martin Co. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JOSEPH REITER,

Plaintiff and Appellant,

v.

C. MARTIN COMPANY,

Defendants and Respondents.

 A141477

 (Mendocino County

 Super. Ct. No. SCUK CVG 13-62126)

Plaintiff and appellant Joseph Reiter (Reiter) appeals from an order granting 

C. Martin Corporation relief from default. We affirm.

BACKGROUND

On May 3, 2013, represented by attorney Mark Clausen, Reiter filed a complaint 

in the Mendocino County Superior Court naming three defendants: “Gilbert Duran, 

individually and dba Duran Construction; Becky Duran; and C. Martin Corporation.” 

Under “General Allegations,” the complaint alleged in pertinent part as follows:

“7. On or about February 7, 2013, plaintiff and DURAN entered into a written 

contract, a true copy of which is attached as exhibit 1. The core terms of the contract 

called for DURAN to install a 450 feet sewer line and 2 manholes on a 4 lot minor 

subdivision in Covelo, California. DURAN was to obtain the necessary permits and 

approvals for the required excavation of the property and installation of the sewer line 

and manholes. DURAN was to be paid a total of $49,500—$24,750 up front, with 

2 additional payments of $12,375 upon completion of specified work due under the 

contract.
2

“8. DURAN knew the subdivision is located adjacent to Indian tribal land and 

that the sewer line called for by the contract requires entry on and excavation of Indian 

tribal land, such that both tribal and Mendocino County permits and approval are needed 

to complete the work called for by the contract. DURAN also knew that Indian officials 

are particularly sensitive to construction work on or near tribal land, . . . .

“9. DURAN represented that they had the necessary skill, education, expertise 

and equipment to complete the work in a timely and competent manner in accordance 

with industry standards, and had already secured or would timely secure the necessary 

permits and approval from Indian officials and the County of Mendocino. DURAN also 

represented that they are employed by or bonded through defendant C. Martin 

Corporation, and C. Martin Corporation would compensate plaintiff in the event that 

DURAN failed to timely perform in accordance with the terms of the contract. . . . Gilbert 

Duran said, for example, that he was employed and bonded by a ‘multi-million dollar’ 

company in C. Martin Corporation. Gilbert Duran often boasted on his employment with 

C. Martin Corporation.

“10. In reliance on such representations, plaintiff paid DURAN $25,000 

(twenty five thousand dollars) up front—$250 more than was due under the terms of the 

contract. DURAN accepted the money and assured plaintiff that the work would be 

performed in a timely and competent manner. . . .

“11. DURAN failed to secure the necessary permits and approval for the work. 

DURAN did not even apply for permits from, or otherwise seek approval of, Indian tribe 

officials or the County of Mendocino, and did not meet with Indian tribal officials or 

representatives of the County of Mendocino. DURAN commenced work nonetheless. 

Not surprisingly, Indian tribal officials and representatives of the County of Mendocino 

were extremely upset when they learned that DURAN had commenced work. 

Individually and collectively, the Indian tribal officials and County representatives voiced 

their displeasure and objections to DURAN and plaintiff, such that the work due under 

the contract had to be stopped and could not be completed.
3

“12. DURAN did not thereafter secure the necessary permits or approval for 

completion of the work, nor did he attempt to do so, and he did not otherwise resolve the 

problems with plaintiff, Indian officials and the County of Mendocino. The work was 

never completed by DURAN. Nonetheless, DURAN retained all of the $25,000 and has 

refused to return any portion thereof, despite multiple demands from plaintiff. DURAN 

left several other contract jobs incomplete when he skipped town to do subcontract work 

elsewhere for C. Martin Corporation. While DURAN takes in significant income from 

C. Martin Corporation, the many jobs he contracted to do stand incomplete and idle.” 

The complaint purported to allege three causes of action: (1) breach of contract, 

(2) fraud, and (3) unlawful practice of law without a license, the last claim based on 

alleged conduct of Becky Duran. As pertinent here, the breach of contract claimed 

alleged this:

“16. According to representations by DURAN, C. Martin Corporation has bonded 

DURAN’s work and agreed to compensate plaintiff for any and all damages suffered by 

him as a result of DURAN’s failure to perform under the contract. Plaintiff therefore 

alleges that C. Martin Corporation is liable along with Gilbert Duran and Duran 

Construction for breach of contract. . . . [¶] . . . [¶]

“18. Demand is hereby made for C. Martin Corporation to perform under its bond 

and in accordance with its agreement with DURAN, and to timely make payment to 

plaintiff in the initial sum of $25,000 to reimburse plaintiff for the payment advanced to 

DURAN for work due under the contract, and thereafter pay plaintiff an additional sum 

sufficient to compensate plaintiff for all damages incurred as a result of the breach of 

contract. DURAN represented that C. Martin Corporation would make good if DURAN 

failed to perform as agreed. C. Martin Corporation must now do so.” 

And the fraud claim alleged this: “According to representations by DURAN, 

C. Martin Corporation has bonded DURAN’s work and agreed to compensate plaintiff 

for any and all damages suffered by him as a result of DURAN’s failure to perform under 

the contract, including DURAN’s fraudulent conduct. Plaintiff is informed and believes 

and thereon alleges that C. Martin Corporation knew that DURAN had made false 
4

representations to plaintiff as herein described. C. Martin Corporation owed a duty to 

plaintiff to set the record straight and reveal the true facts. C. Martin Corporation did 

nothing to disavow or refute DURAN’s representations and did not otherwise inform 

plaintiff of the true facts. Plaintiff therefore alleges that C. Martin Corporation is liable 

for fraud along with DURAN.” The prayer of the complaint asked for “compensatory 

damages according to proof.” 

As indicated, this appeal involves a default against C. Martin Corporation 

(C. Martin). Because it does, and because a default has such a drastic effect, we digress 

from the chronology to briefly comment on Reiter’s complaint—and how it fails to even 

state a claim against C. Martin. To begin with, although the complaint alleged that a 

copy of the contract was attached to the complaint, it was not. But beyond that, it appears 

that insofar as the “breach of contract” action is against C. Martin, it is based on a 

claimed performance bond, which also was not attached to the complaint. To the extent 

that any claim against C. Martin was based on a representation by Duran, agency cannot 

be shown by representations of the agent. And any fraud claim against C. Martin would 

fail because no representations by it are alleged. In sum, Reiter’s complaint did not 

adequately allege any claim against C. Martin.

Attorney Clausen, perhaps with the assistance of his client Reiter,1set about 

attempting to effect service of the complaint, details of which are the subject of much 

discussion in the parties’ briefs. Though some of those details are discussed later in this

opinion, they are not particularly germane to the issues before us, and we here recite the 

facts that are, which are these: 

On September 6, 2013, Attorney Clausen filed a request for entry of default and 

default judgment against “Gilbert Duran dba Duran Construction; Becky Duran; and 

 

1 Reiter’s opening brief here quotes this footnote from a declaration by Attorney 

Clausen made in the trial court: “[Reiter] has been involved in many court cases [and 

consequently he] is generally familiar with the legal process and often represents himself. 

Though represented by me in this case, [Reiter] remains involved in the litigation 

process—sometimes at my behest, sometimes of his own accord.” 
5

C. Martin Corporation.” However inappropriately, the request sought that judgment be 

entered as follows:

“2. Judgment to be entered. Amount Credits acknowledged Balance

“a. Demand of complaint $25,000 $00.00 $25,000.00

“b. Statement of damages

 “(1) Special $ N/A $ N/A $ N/A

 “(2) General $ N/A $ N/A $ N/A

“c. Interest $1,312.50 $1,312.50 $1,312.50

“d. Costs (see reverse) $735.00 $735.00 $735.00

“e. Attorney Fees $6,000.00 $6,000.00 $6,000.00

“f. TOTALS $33,047.50 $33,047.50 $33,047.50.”

On that same date, the clerk checked the box that read, “default entered as 

requested.” 

As C. Martin points out, the default judgment against C. Martin entered by the 

clerk was improper, as Clausen’s request was deficient in several particulars. As the 

leading practical treatise sums up, in connection with a default on a action based on 

contract, “the amount due must either be fixed in the contract itself or be determinable by 

calculation from its terms. If there is any uncertainty as to the amount due, the court 

clerk has no power to resolve it. Instead, a court judgment will be required.” (Weil & 

Brown, Cal. Practice Guide: Civil Procedure Before Trail (The Rutter Group 2014) 

¶ 5.128, p. 5-34 (Weil & Brown).) Moreover, an application for default seeking “Costs” 

“must be filled in at the time judgment is sought, showing plaintiff’s recoverable costs 

and disbursements to date. . . [and] [a] declaration is required by plaintiff’s attorney as to 

the correctness of the costs claimed.” (Id. at ¶ 5:158, citing Code Civ. Proc., § 1033.5.) 

There was no declaration here. Finally, a default judgment that includes attorney fees 

may be entered by a court clerk under very limited circumstances, circumstances not 

present here, with Reiter’s damages uncertain and he providing no basis for attorney fees. 

(See, for example, Landwehr v. Gillette (1917) 174 Cal. 654, 657–658; Liberty Loan 

Corp. of North Park v. Petersen (1972) 24 Cal.App.3d 915, 919.)
6

On October 4, 2013, represented by Carter, Momsen, & Knight, defendants 

Gilbert Duran and Becky Carter (formerly Duran) filed a motion for relief from default 

(Duran motion). 

That same day, represented by Ogletree, Deakins, Nash, Smoak, & Stewart, PC, 

C. Martin filed a joinder in the Duran motion. The joinder was accompanied by 

declarations of Harold J. Huge and Harold Manning, along with a proposed answer. 

Huge, a vice president of technical operations for C. Martin, testified in pertinent part as 

follows:

“4. To my knowledge, Mr. Manning’s address for purposes of receiving service 

on behalf of C. Martin is 1058 W Avenue M-14, Suite B, Palmdale, California 93551. 

My understanding is that Mr. Manning updated this information with the California 

Secretary of State as of December 2010 with the above Palmdale address. Also, my 

understanding is that Reiter never served Mr. Manning at the Palmdale address.

“5. Notwithstanding, C. Martin never received actual notice in time to defend 

itself against this action. The first time C. Martin was made aware of the suit is when it 

received Reiter’s Entry of Default which was mailed to C. Martin’s Las Vegas, Nevada 

address.

“6. C. Martin’s lack of actual notice in time to defend the action was not caused 

by its avoidance of service or excusable neglect.

“7. C. Martin will vigorously defend this action, as it not [sic] a proper party to 

the action. Indeed, the referenced construction project at issue in the Complaint does not 

involve C. Martin. C. Martin works with Duran Construction exclusively under a Joint 

Venture Agreement with the Small Business Administration, and this project does not fall 

within the confines of this work. C. Martin has no role in the referenced construction 

project; did not sign any agreement or participate in any manner the [sic] project; did not 

receive any monies from the project and has no otherwise association with this project.” 

Reiter stipulated to vacating the default and default judgments against Gilbert 

Duran and Becky Carter, but opposed vacating the default and default judgment against 

C. Martin. So, on October 31, Reiter filed his opposition to “Defendant C. Martin 
7

Corporation’s Motion to Vacate Default Judgment.” The opposition was accompanied by 

two declarations, those of attorney Clausen and Reiter himself. Reiter’s declaration 

testified to his version of events pertaining to claimed service on C. Martin, including his 

active participation in the service of process and his claimed communication with various 

interested parties, including Manning. Reiter’s declaration included this:

“2. As the owner of a business and frequent buyer, seller, renter and developer of 

real property, I am well-versed in the litigation process and often represents himself [sic]. 

Though I am represented by counsel in this case, I nonetheless remains [sic] actively 

involved. [¶] . . . [¶]

“5. In mid-June, more than 30 days after the May 9, 2013 sub-service on Manning 

at the Ridgecrest address, I asked my attorney, Mark Clausen, to enter C. Martin’s 

default. Attorney Clausen was in trial, so he asked me to telephone Manning to ensure 

that Manning was aware of the pendency of the action and service of process. 

“6. I telephoned Manning and advised that substitute service had been effected on 

him at the Ridgecrest address. Manning stated he was not sure that he was still listed as 

the agent for service of process for C. Martin. I assured Manning that he was. . . .” 

The argument in Reiter’s opposition relied on his and Clausen’s claimed version 

of events, and concluded as follows: “Code of Civil Procedure section 473 is designed to 

allow relief from default for defendants as a result of their excusable mistake or neglect. 

The statute affords no relief to defendants such as C. Martin who intentionally obfuscate 

the truth in an effort to hide their inexcusable failure to comply with the Corporations 

Code and Code of Civil Procedure provisions requiring annual filing of a statement 

identifying the name and address of the corporation’s agent for service of process, and 

timely filing of a notice of change of address if the agent relocates. Service was validly 

effected via the Ridgecrest address on file with the State at the time of service in May 

2013. Manning and C. Martin’s untimely post-service filing of a notice of change of 

address does not defeat the valid service of process which had already been made at the 

Ridgecrest address on file with the State.” 

On November 1, C. Martin filed its reply, which began as follows:
8

“Defendant C. Martin Company, Inc. (‘C. Martin’), erroneously named as 

C. Martin Corporation, requests that the Court exercise its broad equity jurisdiction to 

relieve C. Martin from the Entry of Default and Default Judgment in this action. 

C. Martin was never served with the Summons and Complaint and had no actual 

knowledge of the filing prior to receipt of the Default entered in this action, thus 

rendering it unable to defend itself.

“Further, it has absolutely no involvement in the contract at issue in this action. 

C. Martin can demonstrate that it has a meritorious case, has articulated a satisfactory 

excuse for not responding to the original Complaint, and has presented evidence that it 

acted diligently to set aside the Judgment. Fairness dictates that C. Martin should have 

the opportunity to defend itself upon the underlying merits of the case.

“Accordingly, this Court should grant C. Martin’s Motion for an Order Setting 

Aside and Vacating Default and Default Judgment and Granting Defendants Leave to 

Defend and allow C. Martin to defend itself in this litigation.” 

The reply memorandum included arguments that “C. Martin Has Evidence That It 

Did Not Have Actual Notice In Time to Defend,”, and “Alternatively, The Court Should 

Exercise its Broad Equity Power to Relieve C. Martin From Default.” C. Martin’s reply 

also contained a supplemental declaration from Manning, taking issue with Reiter’s 

declaration in this respect: “6. With respect to the call referenced by the Plaintiff in this 

action, I do recall receiving a call in or about July, 2013. I do not recall who made the 

call and I was not aware that it was Plaintiff or his representatives. At that time, the 

individual asked me if I remained the Service of Process Agent for C. Martin, which I 

confirmed. I further advised that I did not receive a copy of any Summons and 

Complaint and that if C. Martin was to be served, the best address was the Palmdale 

location. This was the extent of this call and I never received anything following this 

call. Despite what is represented by Plaintiff, I did not log on to the Secretary of State 

website, nor did I reject an offer to send me a Summons and Complaint. [¶] 7. Prior to 

the entry of default in this case, I never obtained actual notice of this lawsuit. My lack of 
9

actual notice in time for C. Martin to defend the action was not caused by my avoidance 

of service or excusable neglect.” 

The motion came on for hearing on November 8, 2013, at which Reiter himself 

argued, apparently having filed a substitution of counsel form to allow him to do so. On 

that same day the court entered its order granting the motion. 

On April 1, 2014, Reiter filed his notice of appeal, asserting “no notice of entry of 

order filed.”

DISCUSSION

Seeking to overturn the trial court’s granting of relief, Reiter makes two 

arguments, the first procedural, the second factual. The first argument is that C. Martin’s 

joinder in the Duran motion was not proper. In Reiter’s words, “C. Martin ‘joinder’ 

was . . . procedurally defective and should have been denied on that ground alone. (See, 

gen., Frazer v. Seely (2002) 95 Cal.App.4th 627 [summary judgment should have been 

denied by trial court . . . .)]” Reiter is wrong.

As Weil & Brown observes:

“[9:27] ‘Joinder’ in another’s motion: It is common practice for attorneys to 

join in another party’s motion by simply filing a pleading captioned ‘Joinder in Motion of 

. . . for . . . ,” stating that the joining party adopts the requests and the points and 

authorities contained in the joined motion. (See Barak v. Quisenberry Law Firm (2006) 

135 Cal.App.4th 654, 660–661.)

“(1) [9:27.1] Limitation—summary judgment: A party may not obtain a 

summary judgment in its favor by joining another party’s motion for summary judgment 

because of the requirement that each moving party file a separate statement of 

undisputed facts (¶10:95.3) (See Barak v. Quisenberry Law Firm, supra,

135 Cal.App.4th at 660–661.).” (Weil & Brown, supra, ¶9:27, p. 9(l)-18.) In short, 

joinder is proper except in summary judgment motions, which was not the motion 

involved here.

But even if the joinder were improper, Reiter waived any such impropriety by 

appearing, and arguing, at the hearing. “ ‘It is well settled that the appearance of a party 
10

at the hearing of a motion and his or her opposition to the motion on its merits is a waiver 

of any defects or irregularities in the notice of motion. [Citations.] This rule applies even 

when no notice was given at all.’ ” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) 

As Justice Croskey put it in Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 

333, 342: “A party who appears at the hearing on a motion and contests the motion on 

the merits without objecting to a defect or irregularity in the notice of motion ordinarily is 

deemed to waive the defect or irregularity . . . .”

Reiter’s factual argument is that “the ‘Joinder’ also should have been denied on 

the merits.” Ignoring most of the governing principles, Reiter focuses on his version of 

claimed facts, concluding with these two subarguments:

“C. C. Martin did meets [sic] its burden of proof that it had not received actual 

notice of the pendency of the lawsuit in time to defend the action in advance of entry of 

default.

“D. Presuming C. Martin lacked actual notice, it was due to C. Martin’s own 

inexcusable neglect in failing to timely and properly report information to the Secretary 

of State concerning C. Martin’s Agent for Service of Process.” 

The subarguments are wide of the mark, especially in light of the principles 

governing here, most of which were set forth by us in Fasuyi v. Permatex (2008) 

167 Cal.App.4th 681 (Fasuyi)—a case relied on by C. Martin and utterly ignored in 

Reiter’s reply brief.

Fasuyi was a products liability case in which the trial court granted a default 

judgment. Permatex, the defendant manufacturer, promptly filed a motion for relief, 

which the trial court denied. We reversed, in an opinion containing an exhaustive 

discussion of the principles governing defaults and relief from them. That discussion 

began with the role of the court in default judgments, noting among other things how the 

plaintiff must “precisely [follow]certain procedures.” (Fasuyi, supra, 167 Cal.App.4th at 

p. 691.) We went on to elaborate on the subject of discretion, and its abuse, and then 

concluded as follows:
11

“Applying that law here leads inescapably to the conclusion that the trial court 

abused its discretion here—all legal principles favored Permatex.

“The most fundamental of those principles is that affirmed in Au-Yang v. Barton

(1999) 21 Cal.4th 958, 963: ‘ “[T]he policy of the law is to have every litigated case tried 

upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of 

the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of 

his adversary.” ’ (Ibid., citing among other cases, Weitz v. Yankosky (1966) 63 Cal.2d 

849, 855 (Weitz).)

“ ‘Because the law favors disposing of cases on their merits, “any doubts in 

applying section 473 must be resolved in favor of the party seeking relief from default 

[citations]. Therefore, a trial court order denying relief is scrutinized more carefully than 

an order permitting trial on the merits.” ’ (Rappleyea [v. Campbell (1984)] 8 Cal.4th 

[975,] 980, quoting Elston v. City of Turlock [(1985)] 38 Cal.3d [227,] 233 (Elston).) In 

Witkin’s typically succinct statement of the rule, the remedial relief offered by section 

473 is ‘highly favored and is liberally applied.’ (8 Witkin, Cal. Procedure [(5th ed. 

2008)] Attack on Judgment in Trial Court,[§ 144, pp. 735-736] and numerous cases there 

collected.)

“As a result of those principles, the Supreme Court has recognized that if a 

defendant promptly seeks relief (as Permatex did here) and there is no showing of 

prejudice to Fasuyi (as is the case here), ‘ “very slight evidence will be required to justify 

a court in setting aside the default.” ’ (Elston, supra, 38 Cal.3d at p. 233.) Or as Elston

put it two pages later, ‘[u]nless inexcusable neglect is clear, the policy favoring trial on 

the merits prevails.’ (Id. at p. 235.) There was more than slight evidence here. And no 

inexcusable neglect.” (Fasuyi, supra, 167 Cal.App.4th at p. 696.)

The law requires Reiter to show an abuse of discretion, which abuse must be 

shown whether the motion is based on section 473 (Fasuyi, supra, 167 Cal.App.4th at 

p. 694) or section 473.5. (Fox v. Townsend (1906) 149 Cal. 659; Ramos v. Homeward 

Residential, Inc. (2014) 223 Cal.App.4th 1434, 1444; Trujillo v. Trujillo (1945) 
12

71 Cal.App.2d 257, 262.) Reiter has not shown such abuse—indeed, he is foreclosed 

from even attempting to.

As indicated, the motion came on for hearing in court. Reiter’s opening brief 

acknowledges, “[t]here is no reporter’s transcript.7” And footnote 7 says this: “As a 

cost-cutting measure in the face of a significant budget crisis, the Mendocino County 

Superior Court no longer provides court reporters for civil matters as a matter of course. 

A party desiring a court reporter must pay for one in advance. Reiter and his counsel 

(who hail from Sonoma County) were unaware of this rule change when the ‘joinder’ was 

heard. Consequently, the proceedings were not transcribed.”

Aware or not, the leading treatise sums up Reiter’s predicament this way: 

“d. [9:171] Court reporters: Although some courts still provide court reporters 

at all law and motion hearings, courts are increasingly opting not to do so.

“If the court does not provide a reporter, its local rules must so state and spell out 

the procedure for obtaining a reporter (see Cal. Rules of Court, rule 3.1310). In such 

cases, parties are entitled to arrange for a reporter at their own expense (fees may be 

recoverable as court costs). (Cal. Rules of Court, rule 2.956(c); see Fasuyi v. Permatex, 

Inc. (2008) 167 Cal.App.4th 681, 690, fn. 5 (citing text).) [¶] . . . [¶] 2

“ [9:171.5] PRACTICE POINTER: Check with the court to determine whether 

there are any special procedures associated with providing your own court reporter. . . .

“(1) [9:172] Transcript may be essential for appellate review: Unless a court

reporter is present, the losing party may have no effective way of challenging the court’s 

ruling by writ or appeal: ‘In the absence of a transcript, the reviewing court will have no 

way of knowing . . . what grounds were advanced, what arguments were made, and what 

facts may have been admitted, mutually assumed or judicially noticed at the hearing. In 

 

2 Mendocino County has such a local rule, rule 4.4. It provides as follows: 

“Reporting of Law and Motion matters [¶] This court does not regularly provide for 

reporting or electronic recording of hearings in civil or probate matters. Any party who 

wishes to obtain an official verbatim transcript of a law and motion hearing shall follow 

the procedure set forth in local rule 20.2) (Cal. Rules of Court, rule 3.1310.) (Former 

rule 8.7 renumbered effective Jan. 1, 2013.)” 
13

such a case, no abuse of discretion can be found except on the basis of speculation.’ 

(Snell v. Sup.Ct. (Marshall Hosp.) (1984) 158 [Cal.App.3d] 44, 49 (emphasis added); 

see also GT, Inc. v. Sup.Ct. (Santa Cruz Sentinel Publishers, Inc.) (1984) 151 Cal.App.3d 

748, 756.)

“[9:173] PRACTICE POINTERS: If you are appearing in a court in which law 

and motion hearings are not regularly reported, and there is the slightest chance you 

would seek appellate review if the judge rules against you, be sure to have a court 

reporter present! [¶] . . .[¶]

“[9:174] Caution—failure to request reporters as malpractice? If the matter is 

one in which a transcript may be essential for appellate review, it may constitute 

malpractice for an attorney to fail to have a court reporter present. (See In re Christina P.

(1985) 175 Cal.App.3d 115, 128—failure to request court reporter in proceeding to 

remove child from parental custody raised ‘cognizable claim’ of ineffective assistance of 

counsel.)” (Weil & Brown, supra, ¶¶ 9:171-9:174, pp. 9(1)131-9(l)-133.)

Based on the absence of a transcript, Reiter is not even able to assert abuse of 

discretion. 

Nor has he. All Reiter attempts is to reargue his fact-based position, and claim in 

essence that the trial court had to believe his version of events. As Reiter distills it in his 

reply brief, “The evidence shows C. Martin was properly served and had actual 

knowledge of the pendency of the lawsuit; and, if actual notice was lacking, such was the 

fault of C. Martin and is not excusable.” 

There was, of course, another side to the story, one the trial court could—and 

did—accept. Thus, for example, Manning declared that he “never obtained actual notice 

of this lawsuit. My lack of . . . actual notice in time for C. Martin to defend the action 

was not caused by my avoidance of service or inexcusable neglect.” The issue is not 

whether C. Martin had properly updated its agent for service of process form with the 

Secretary of State, or which side is more credible. And evidence supplied by Manning 

suggests that Reiter knew that C. Martin (and Manning) lacked actual notice as of 

July 2013, and did nothing to correct it.
14

We close with the observation that there is no evidence in the record indicating 

that Reiter or his attorney Clausen made any attempt to notify C. Martin directly, or 

through Manning, of his plan to file a request for entry of default—no warning that a 

default might come. Once again, Weil & Brown is apt:

“ ‘[5:68] Ethical Obligation to Warn Opposing Counsel: If plaintiff’s counsel 

knows the identity of the lawyer representing defendant, he or she owes an ethical 

obligation to warn before requesting entry of defendant’s default. Failure to do so is a 

professional discourtesy to opposing counsel that will not be condoned by the courts: 

“The quiet speed of plaintiffs’ attorney in seeking a default judgment without the 

knowledge of defendants’ counsel is not to be commended.” (Smith v. Los Angeles 

Bookbinders Union No. 63 (1955) 133 Cal.App.2d 486, 500, disapproved on other 

grounds in MacLeod v. Tribune Pub. Co., Inc. (1959) 52 Cal.2d 536, 551; [citations].)

“ ‘Even legitimate tactics must sometimes yield to the only goal that justifies the 

very existence of our judicial system; i.e., the resolution of our citizens’ disputes and the 

administration of justice.’ (Brown v. Presley of So. Calif. (1989) 213 Cal.App.3d 612, 

620, fn. 3—the notion that ours is a ‘dog-eat-dog business’ governed by the ‘law of the 

jungle’ should be curtailed, not rewarded.)

“a. [5:69] No legal obligation: The duty to warn opposing counsel is an ethical 

rather than a legal requirement. As noted by one court, “While as a matter of 

professional courtesy counsel should have given notice of the impending default, and we 

decry this lack of professional courtesy . . . counsel was under no legal obligation to do 

so.’ (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038 (emphasis added); [citations].)

“b. [5:70] Effect of failure to warn: In the absence of a prior warning of default, 

courts are inclined to grant CCP §473(b) motions to set aside defaults. [Citations.]

[¶] . . .[¶] (Weil & Brown, supra, ¶¶ 5.68-5.70, pp. 5-19-5-20.)

DISPOSTION
15

The order granting C. Martin relief from default is affirmed. C. Martin shall 

recover its costs on appeal.

_________________________

Richman, Acting P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.