      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 TERRY BERG,                                       No. 80119-8-I

                       Appellant,                  DIVISION ONE

        v.                                         UNPUBLISHED OPINION

 GREGORY PACKARD, SOUTHERN
 GLAZER’S WINE AND SPIRITS OF
 WASHINGTON, LLC, DOES I-V, and
 ROES CORPORATIONS VI-X,
 inclusive,

                       Respondents.


       LEACH, J. - Terry Berg appeals a trial court order vacating a default judgment

obtained against Gregory Packard and Southern Glazer’s Wine and Spirits, LLC

(“Packard”). Because Berg does not show that the trial court abused its discretion,

we affirm.

                                    BACKGROUND

       Terry Berg was injured when a car driven by Gregory Packard rear-ended

Berg’s vehicle. Berg’s efforts to settle his claim with Packard’s insurance company

failed. So, Berg sued Packard. He served Packard on March 8, 2019, and March

9, 2019, and filed the lawsuit on April 5, 2019. After Packard did not respond within

the allotted time, on April 18, 2019, Berg obtained an order of default against

Packard.




  Citations and pincites are based on the Westlaw online version of the cited material.
No. 80119-8/2


       The same day, he filed a motion he called an ex parte motion of default

requesting a default judgment. He supported this motion, with his attorney’s

declaration and Berg’s declaration, to which medical bills were attached. He did

not provide any declaration from a healthcare provider. A court commissioner

entered an order stating, “Please supplement the request for non-economic

damages with further evidence (i.e. jury verdicts) and resubmit the submission

through Ex Parte via the Clerk, including a copy of this Order.” In response, Berg

filed a supplemental ex parte motion for default judgment to which he attached

reports of settlements/jury verdicts in similar cases.

       The court entered the default judgment against Packard with these findings

on April 19, 2019:

   1. Defendants Gregory Packard and Southern Glazer’s Wine and Spirit of
      Washington, LLC (collectively “Defendants”) were properly served with the
      Complaint and Summons in this matter.

   2. Defendants have not entered an appearance in this matter.

   3. Defendants are jointly and severally liable for the accident complained of
      in Plaintiff’s Complaint (the “Accident”).

   4. Plaintiff carries no fault in the Accident.


   5. Plaintiff was severely injured in the Accident.


   6. Plaintiff’s economic damages caused by the Accident equal $63,773.33.


   7. Plaintiff’s non-economic damages caused by the Accident equal
      $250,000.00.




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       Berg notified Packard of the default judgment. Packard filed a motion to

vacate the default judgment on May 1, 2019. After Berg requested oral argument

in opposition, the court informed the parties that Packard needed to re-note the

motion. Packard filed a second motion to vacate the default judgment and noted

it to be heard without oral argument. The court granted Packard’s second motion

without oral argument and vacated the default judgment. Berg appeals.

                             STANDARD OF REVIEW

       We review a trial court’s decision to vacate a default judgment for abuse of

discretion. 1 A trial court abuses its discretion when its decision is manifestly

unreasonable, or based on untenable grounds, or exercised for untenable

reasons. 2

                                     ANALYSIS

       Berg claims the trial court abused its discretion when it granted Packard’s

motion to vacate, because Packard failed to meet his burden of proof as a matter

of law. Generally, Washington courts do not favor default judgments based on an

overriding policy that prefers the resolution of disputes on the merits. 3 We assess

the trial court’s decision in light of a case’s particular facts and circumstances. We




1 Yeck v. Dep’t of Labor & Indus., 27 Wn.2d 92, 95, 176 P.2d 359 (1947).
2 Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
3 Little v. King, 160 Wn.2d 696, 703, 161 P.3d 345 (2007).


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No. 80119-8/4


are less likely to reverse a trial court decision that sets aside a default judgment

than a decision that does not. 4

       In deciding a motion to vacate a default judgment under CR 60(b), the trial

court considers two primary and two secondary factors, which the moving party

must address: (1) that there is substantial evidence to support, at least prima facie,

a defense to the claim asserted by the opposing party; (2) that the moving party’s

failure to timely appear and answer was due to mistake, inadvertence, surprise, or

excusable neglect; (3) that the moving party acted with due diligence after notice

of the default judgment; and (4) that the opposing party will not suffer substantial

hardship if the default judgment is vacated. 5

       A trial court may vacate a default judgment “if there [is] not substantial

evidence to support the award of damages.” 6

       Packard met the two secondary factors.          He responded quickly after

receiving notice of the default judgment, and Berg has not shown that vacating the

judgment would cause any hardship.

       This leaves the two primary factors, (1) whether Packard has identified

evidence to support at least a prima facie defense, and (2) whether Packard’s

failure to appear was due to excusable neglect or was not willful.




4 Showalter v. Wild Oats, 124 Wn. App. 506, 510-11, 101 P.3d 867 (2004).
5 Little, 160 Wn.2d at 703-04 (citing White v. Holm, 73 Wn.2d 348, 352, 438 P.2d
581 (1968); Showalter, 124 Wn. App. at 511; Johnson v. Cash Store, 116 Wn. App.
833, 841, 68 P.3d 1099 (2003).
6 Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd & Hokanson, 95

Wn. App. 231, 242, 974 P.2d 1275 (1999).
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Prima Facie Defense

       Berg first claims that because Packard failed to offer evidence, that the

amounts in the default judgment were excessive or unreasonable, he did not

present a prima facie defense.

       The trial court examines the evidence and reasonable inferences in the light

most favorable to the moving party to determine whether there is substantial

evidence of a prima facie defense. 7

       Packard asserts he demonstrated a defense because Berg did not provide

any evidence, other than medical bills and his own declaration, to show that the

medical costs were reasonable and necessary.

       A plaintiff in a negligence case may recover only the reasonable value of

medical services received and not the total of all bills paid. 8 The plaintiff must

prove that medical costs were reasonable and necessary and cannot rely solely

on medical records and bills to do this. 9 In other words, medical records and bills

are relevant to prove past medical expenses only if supported by additional

evidence that the treatment and the bills were both necessary and reasonable.

       First, Berg’s medical records may indicate that he had pre-existing medical

conditions related to the treatment described in the medical bills he submitted with

his motion for default judgment. Jackie Jensen Erler, Packard’s attorney, reviewed




7 Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 834, 14 P.3d 837
(2000).
8 Torgeson v. Hanford, 79 Wash. 56, 58-59, 139 P. 648 (1914).
9 Nelson v. Fairfield, 40 Wn.2d 496, 501, 244 P.2d 244 (1952); Carr v. Martin, 35

Wn.2d 753, 761, 215 P.2d 411 (1950); Trudeau v. Snohomish Auto Freight Co.,
1 Wn.2d 574, 585-86, 96 P.2d 599 (1939); Torgeson, 79 Wash. at 58-59.
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the medical records and found that Berg had carpal tunnel symptoms before the

accident. She also stated that his records demonstrate long-standing degenerative

changes throughout the spine, a history of a lumbar disc fusion two years before

the accident, and a history of prior headaches.

         Second, Berg acknowledges he failed to provide the evidence needed to

prove his treatment was reasonable or necessary. So, the record does not support

that part of the default judgment awarding treatment costs. So, Packard identified

substantial evidence of a prima facie defense.

Appearance

         Berg next claims that Packard provided no explanation for his failure to

answer the complaint. He is correct.

         “If a ‘strong or virtually conclusive defense’ is demonstrated, the court will

spend little time inquiring into the reasons for the failure to appear and answer,

provided the moving party timely moved to vacate and the failure to appear was

not willful.” 10 But when the moving party’s evidence supports no more than a prima

facie defense, the reasons for the failure to timely appear will be scrutinized with

greater care. 11

         Here, while Packard did not respond to the lawsuit within 20 days of being

served, Packard asserts he did not receive notice that Berg filed the lawsuit, and

that Berg “almost immediately obtained a default judgment thereafter.” This does

not explain his failure to respond. So, this factor weighs against vacating the



10   Johnson, 116 Wn. App. at 841 (quoting White, 73 Wn.2d at 352).
11   Johnson, 116 Wn. App. at 842; White, 73 Wn.2d at 352-53.


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default judgment. Berg cites no authority for his apparent position that this single

factor controls a trial court’s decision.

Equity

         Berg next claims that it was not equitable to vacate the default because

Packard presented no evidence supporting his contention that Berg’s total

damages were unreasonable or unnecessary. But, because Packard proved that

Berg’s medical expense damages were unsupported by the requisite evidence and

raised issues about pre-existing conditions applicable to both his economic and

noneconomic damages, Packard satisfied his burden of establishing a prima facie

defense to Berg’s damage claim.

Oral Argument

         Finally, Berg claims the trial court should have been required to conduct oral

argument. He cites no persuasive authority to support this claim.

Attorney Fees

         Packard requests attorney fees claiming Berg’s appeal is frivolous. We

disagree. Berg had a good faith argument in advancing his concerns about the

validity of the default judgment.

                                    CONCLUSION

         We affirm. The trial court did not abuse its discretion in its consideration of

the factors to weigh when determining whether to vacate a default judgment.




WE CONCUR:




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