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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                     A141477
v.
C. MARTIN COMPANY,                                                   (Mendocino County
                                                                     Super. Ct. No. SCUK CVG 13-62126)
         Defendants and Respondents.


         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.


                                                             1
       “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.



                                               2
       “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


                                                3
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,1 set 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.”


                                               4
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.)


                                                5
       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


                                              6
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:


                                              7
       “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



                                              8
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


                                                9
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:



                                              10
       “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)



                                              11
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.)”


                                              12
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.


                                              13
       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




                                              14
       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.




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