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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

ELIZABETH YVONNE KIMBALL,
a single person,
                             Respondent,                         No.  41821-5-II

       v.                                                  UNPUBLISHED OPINION

MASAYOSHI ICHIKAWA and JANE DOE
ICHIKAWA, husband and wife,
                             Appellants.

       Van Deren, J.  --  Masayoshi Ichikawa appeals the trial court's denial of his motion to 

vacate an order of default and default judgment against him.  He argues:  (1) Elizabeth Kimball 

failed to exercise due diligence in attempting to locate him before serving the secretary of state 

under RCW 46.64.040, and such service, coupled with the lack of actual notice to Ichikawa, 

violated Ichikawa's due process rights; (2) the trial court abused its discretion in finding that 

Ichikawa did not substantially comply with CR 55(a)(3)'s appearance requirement through 

contacts with Kimball after she sued him and, thus, he was not entitled to notice of the default 

motion and hearing; and (3) the trial court abused its discretion in finding that Ichikawa failed to 

demonstrate that his failure to appear constituted excusable neglect under CR 60(b)(1) or that 

Kimball's conduct was inequitable under CR 60(b)(4).  Finding no error or abuse of discretion, 

we affirm. 

No. 41821-5-II

                                            FACTS

       On June 10, 2009, Ichikawa was involved in a rear-end collision with Kimball's vehicle.  

Ichikawa provided a California address to a responding law enforcement officer, although 

Ichikawa had a Washington driver's license.  On June 11, Ichikawa reported the incident to his 

insurer, American Commerce Insurance Company (ACIC).  Kimball's counsel and ACIC 

communicated about the status of Kimball's insurance claim and her treatment on June 17, June 

24, August 17, and October 20.  

       On December 8, Kimball sued Ichikawa.  On January 16, 2010, Kimball attempted to 

serve Ichikawa at the California address, but the current resident said that she had resided there 

since November 2009 and did not know Ichikawa.  Internet database searches provided a NE 

98th Way, Redmond, Washington, address for Ichikawa.  On January 19, Kimball attempted to 

serve Ichikawa at that address, but the current resident stated that Ichikawa had moved in May 

2009 and had not left a forwarding address.  Because additional database searches indicated a 

high likelihood that the Redmond address was actually Ichikawa's, Kimball attempted to serve 

him again on February 16, but the current resident repeated that Ichikawa had moved.  

       The United States Postal Service (USPS) provided two additional Redmond addresses for 

Ichikawa in response to Kimball's request for change of address information regarding both the 

California address and the NE 98th Way address.  On August 9, Kimball's process server 

discovered that the first new address was for a mailbox in a United Parcel Service (UPS) Store 

franchise.  On August 26, Kimball's process server discovered that the second new address was 

for  the physical location of a USPS post office.  

       Kimball and ACIC remained in contact during the time Kimball attempted to serve 

                                               2 

No. 41821-5-II

Ichikawa.  On February 24, 2010, Kimball told ACIC that she would make a settlement demand 

and deliver supporting medical records within 60 days.  On June 4 and July 20, Kimball and ACIC 

communicated about the status of Kimball's demand.  On August 4, ACIC received a settlement 

demand for $115,000.00 from Kimball, including medical expenses of $13,934.11, along with a 

"significant amount of medical records and other documentation in support of her claim." Clerk's 

Papers (CP) at 18.  In an August 18 letter, Kimball rejected ACIC's counteroffer, stating that the 

correct claim for medical expenses was $15,305.41, and stating that she would "continue to 

secure service on the elusive Mr. [Ichikawa] and continue to trial  --  until and unless there is a 

response to our demand that indicates a sincere desire to negotiate." CP at 31.  ACIC never 

contacted Kimball's counsel about Kimball's clear references to a pending lawsuit in the August 

18 letter nor did ACIC request additional notice of the suit.  

       On September 3, Kimball served the secretary of state a copy of the summons and 

complaint against Ichikawa; a declaration of compliance with RCW 46.64.040, the non-resident 

motorist statute; and a declaration of due diligence describing Kimball's four attempts to 

personally serve Ichikawa.  Kimball also sent copies of these documents, as well as notice of 

service on the secretary of state, via certified mail, return receipt requested, to Ichikawa's two last 

known addresses:  the UPS Store address and the USPS post office address.  At the UPS Store 

address, Stacy Larkin, apparently a store employee, signed the certified mail receipt as Ichikawa's 

agent.  

       Neither Ichikawa nor ACIC, or anyone on their behalf, filed a notice of appearance or 

answer to Kimball's complaint.  On November 3, Kimball moved for an order of default and a 

default judgment.  Kimball did not serve notice of the default motion on Ichikawa or ACIC.  

                                               3 

No. 41821-5-II

       At the hearing on Kimball's motion for default and judgment, the trial court considered 

Kimball's medical records1 and took Kimball's testimony.  According to Kimball, before the 

accident she was very active in bicycling, swimming, running, and hiking, and she wore high-

heeled shoes every day.  After the accident, she was unable to ride her bicycle because she was 

unable to turn her neck to watch for traffic; she also was unable to wear high heels every day, to 

do yard work, or to play football with her young son.  She suffered ongoing headaches, 

backaches, neck aches, numbness in her arms and feet, radiating pain in her legs, and sleeplessness 

due to the pain.  She also suffered post-concussion syndrome, light-headedness, and problems 

with her balance and short-term memory immediately after the accident, and the short-term 

memory problems persisted.  Physicians prescribed Cymbalta after the accident, which, according 

to Kimball, the physicians said, "[I]t looked like [she would] be taking it the rest of [her] life" at a 

cost of $150 per month.  Report of Proceedings (RP) at 10-11.

       At the hearing, the trial court asked about Kimball's efforts to serve Ichikawa:  

       [Trial Court]:  Okay.  And I noticed there's an insurance company listed here in
       the police report.  Do you  --  did you contact the insurance company to  --  to see 
       if there's  --  if  --     
       [Kimball's Counsel]:  They were not helpful.
       [Trial Court]:   --  you  --  you did try to contact them and  -- 
       [Kimball's Counsel]:  Oh yes.  Oh yes.  

RP at 17.  

       Kimball requested $150,000 in general damages.  In assessing general damages, the trial 

court stated:

       You came up with a hundred and fifty thousand dollar figure and independently of 
       that  --  I guarantee it's independent of that  --  I was thinking about the symptoms 

1 The trial court admitted these medical records as Exhibits A and B, but the medical records are 
not part of the record on appeal.  

                                               4 

No. 41821-5-II

       she described  --  the on-going pain and disability and loss of the enjoyment of 
       activities in life and I set a figure of five hundred dollars a month for that.  I  -- 
              A thirty-five year life expectancy but you know your last ten years [of] life 
       [are not] worth much anyway so . . . I multiplied that five hundred dollars a month 
       times twenty-five years  --  it came out at a hundred fifty thousand dollars.

RP at 19-20.  In calculating her special damages, the trial court reasoned that, because Kimball's 

need for Cymbalta was indefinite and, thus, speculative, it would multiply the $150.00 per month 

by half her life expectancy -- 18 years -- for a total of $32,400.00.  Combined with $16,250.00 for 

past special damages, the trial court awarded Kimball a total of $48,650.00 for special damages.  

On November 30, the trial court entered a default judgment in favor of Kimball and against 

Ichikawa for general damages, special damages, fees, and costs totaling $199,809.90 plus interest.  

       Kimball sent ACIC a letter that it received on December 16, informing ACIC of the 

default judgment.  The letter stated, "As I indicated we would do in my letter of August 18, 2010, 

we obtained service on [Ichikawa], and we proceeded to trial.  In view of the failure of [Ichikawa] 

to appear, we obtained an order of default." CP at 32.  The letter had a copy of the default 

judgment and a digital versatile disc of the default hearing enclosed.  ACIC's claims adjuster then 

checked the Washington Courts' website and discovered that Kimball had filed the complaint on 

December 8, 2009.  

       On January 3, 2011, Ichikawa's counsel filed a notice of appearance.  On January 4, 

Ichikawa unsuccessfully moved under CR 55(a)(3), CR 60(b)(1), and CR 60(b)(4) to vacate the 

default judgment.  He appeals.  

                                               5 

No. 41821-5-II

                                          ANALYSIS

I.     Service Due Process Issues

       Ichikawa argues for the first time on appeal that (1) Kimball violated his due process 

rights by failing to exercise due diligence in attempting to locate him before serving the secretary 

of state under RCW 46.64.040 and (2) service under RCW 46.64.040, coupled with the lack of a 

return receipt of notice of service signed by Ichikawa, violated Ichikawa's due process rights.2  

We disagree.  

       A.  Standard of Review

       Due process requires "'notice reasonably calculated, under all the circumstances, to 

apprise interested parties of the pendency of the action and afford them an opportunity to present 

their objections.'"  Martin v. Meier, 111 Wn.2d 471, 477-78, 760 P.2d 925 (1988) (quoting

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 

(1950)).  We review constitutional issues de novo.  Hale v. Wellpinit Sch. Dist. No. 49, 165 

Wn.2d 494, 503, 198 P.3d 1021 (2009), review denied, 173 Wn.2d 1012 (2012).  

       Kimball contends that Ichikawa's arguments concern insufficient service of process and 

are properly framed as jurisdictional questions.  "Proper service of the summons and complaint is 

a prerequisite to the court obtaining jurisdiction over a party."  Woodruff v. Spence, 76 Wn. App. 

207, 209, 883 P.2d 936 (1994).  We agree with Kimball that Ichikawa's claim relates to due 

process only in the context of giving notice reasonably calculated to apprise Ichikawa of the 

2 Ichikawa's brief suggests that RCW 46.64.040 is unconstitutional but does not support this 
assertion with adequate argument or authority; thus, we do not provide a full constitutional 
analysis seeking to answer his vague assertion.  We respond to his concerns in addressing due 
process and jurisdiction in this context. 

                                               6 

No. 41821-5-II

action and to afford him an opportunity to raise objections to the claims.  Because RAP 2.5(a)(1) 

allows parties seeking review to raise issues of trial court jurisdiction for the first time on appeal, 

and we review de novo whether service of process was proper, we address Ichikawa's claim.  

Pascua v. Heil, 126 Wn. App. 520, 527, 108 P.3d 1253 (2005).

       B.  Due Diligence

       RCW 46.64.040 provides:

       [E]ach resident of this state who, while operating a motor vehicle on the public 
       highways of this state, is involved in any accident, collision, or liability and 
       thereafter at any time within the following three years cannot, after a due and 
       diligent search, be found in this state appoints the secretary of state of the state of 
       Washington as his or her lawful attorney for service of summons as provided in 
       this section for nonresidents.

Due diligence requires that the plaintiff make "honest and reasonable efforts to locate the 

defendant," but it does not require the plaintiff to use "all conceivable means" to find him.  Meier,

111 Wn.2d at 482.

       In Meier, the plaintiff tried to serve the defendant at a Washington address listed on the 

accident report.  111 Wn.2d at 473.  Meier asked neighbors and the defendant's former university 

about defendant's whereabouts.  Meier, 111 Wn.2d at 474-75.  Neighbors told him the defendant 

had moved to California.  Meier, 111 Wn.2d at 474-75.  He found no listing in telephone and 

police records.  Meier, 111 Wn.2d at 475.  The court found that Meier's efforts constituted due 

diligence.  Meier, 111 Wn.2d at 482-83.  Accordingly, the court found service under the 

nonresident motorist statute appropriate.  Meier, 111 Wn.2d at 483.

       In Martin v. Triol, 121 Wn.2d 135, 150, 847 P.2d 471 (1993), the plaintiff began looking 

for the defendants only five days before the service of process period expired.  A process server 

                                               7 

No. 41821-5-II

could not locate the defendants, and neighbors did not know where the defendants were.  Triol,

121 Wn.2d at 150.  The plaintiff accordingly served the secretary of state under the statute.  Triol,

121 Wn.2d at 150.  Our Supreme Court found that the statute applied because defendants had 

temporarily left the state on vacation, and plaintiff had used due diligence in searching for them.  

Triol, 121 Wn.2d at 150-51.  Similarly, in Carras v. Johnson, 77 Wn. App. 588, 594, 892 P.2d 

780 (1995), the plaintiff's efforts, which consisted of hiring a professional process server and 

relying on the accident report for defendants' addresses, "while certainly not exhaustive, were 

both honest and reasonable," and satisfied the statute.

       Here, as in Meier and Carras, Kimball tried serving Ichikawa at the California address he 

gave on the accident report.  And, as in Triol and Carras, Kimball used professional process 

servers in her subsequent attempts to locate and to serve Ichikawa.  Additionally, Kimball used

multiple databases and USPS change of address information requests, and her process server 

questioned the current residents where he found them at the four addresses at which he tried to 

serve Ichikawa.  

       Ichikawa contends that Kimball did not exercise due diligence to locate him because she 

did not ask ACIC whether it knew his current whereabouts.  But our focus is on what Kimball 

did, not on what she failed to do.  Carras, 77 Wn. App. at 593.  Although Kimball did not 

exercise all conceivable means of locating and serving Ichikawa, the means she used were diligent

and reasonable.  Accordingly, Ichikawa fails to demonstrate that the trial court did not have 

jurisdiction over this dispute or that his due process rights were violated based on Kimball's 

service through the secretary of state.  

       C.  Actual Notice Not Required under RCW 46.64.040

                                               8 

No. 41821-5-II

       Ichikawa also argues that he was entitled to actual notice of Kimball's suit under RCW 

46.64.040.  But actual notice is not required to satisfy due process and a plaintiff satisfies due 

process by mailing notice to the defendant's last known address only after exercising due diligence 

in attempting to personally serve the defendant.  Meier, 111 Wn.2d at 477-78.

       Kimball exercised due diligence in attempting to personally serve Ichikawa.  After doing 

so, she served the secretary of state and mailed notice to Ichikawa's two last known addresses.3  

ccordingly, Kimball complied with RCW 46.64.040's service requirements, and Ichikawa fails to 

demonstrate a lack of due process.   

II.    Substantial Compliance with CR 55(a)(3)

       Ichikawa further contends that the trial court abused its discretion in denying his motion to 

vacate the default judgment because he substantially complied with CR 55(a)(3)'s appearance 

requirement, thus entitling him to notice of the default motion and judgment.  We disagree.

       We review a trial court's decision on a motion to vacate a default judgment for an abuse 

of discretion.  Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007).  A trial court abuses 

its discretion when its decision is based on untenable grounds or reasons,and a decision is 

3 Ichikawa, citing Division One's decision in Goettemoeller v. Twist, 161 Wn. App. 103, 253 P.3d 
405 (2011), contends that a UPS Store mailbox address is not a sufficient "last known address"
for purposes of substitute service under RCW 46.64.040.  But Goettemoeller is distinguishable.  
Unlike this case, the Goettemoeller court considered whether the evidence supported that Twist's 
private mailbox was his "usual mailing address" for purposes of substitute service by mail under 
RCW 4.28.080(16).  161 Wn. App. at 107-08.  Furthermore, the Goettemoeller court observed 
that "a private mailbox may serve as a defendant's 'usual mailing address' to effectuate statutory 
substitute service."  Goettemoeller, 161 Wn. App. at 109.  It held that the private mailbox was 
not Twist's "usual mailing address," however, because Goettemoeller knew that Twist resided in 
England and because there was no evidence that Twist continued to use the mailbox or had mail 
forwarded from it.  Goettemoeller, 161 Wn. App. at 108-110.  Here, Kimball's database searches 
and USPS change of address information requests led her to believe that either the USPS post 
office address or the UPS Store was Ichikawa's last known address, and she mailed notice of 
service on the secretary of state to both.    
                                               9 

No. 41821-5-II

untenable if it rests on an erroneous application of law.  State v. Rafay, 167 Wn.2d 644, 655, 222 

P.3d 86 (2009); Morin, 160 Wn.2d at 753.  Because Washington law disfavors default judgments, 

we are more likely to find an abuse of discretion and to reverse a trial court decision refusing to 

vacate a default judgment than one that sets aside such a judgment.  White v. Holm, 73 Wn.2d 

348, 351-52, 438 P.2d 581 (1968); Showalter v. Wild Oats, 124 Wn. App. 506, 511, 101 P.3d 

867 (2004).

       We will set aside a default judgment entered against a party who was entitled to notice but 

who did not receive it.  Morin, 160 Wn.2d at 749.  CR 55(a)(3)4 requires notice of a motion for 

default to be given to any party who has appeared in the action.  In Morin, our Supreme Court 

observed that "[s]ubstantial compliance with the appearance requirement can be accomplished 

informally." 160 Wn.2d at 749.  But it rejected the doctrine of "informal appearance" through 

prelitigation communication alone, as the Court of Appeals had formulated.  Morin, 160 Wn.2d at 

749.   

       In addressing the parameters of informal notice of appearance, the court observed the 

types of conduct after litigation commenced that it had recognized as substantially complying with 

the appearance requirement:  (1) a defendant serving interrogatories on the plaintiff despite failing 

to file a formal notice of appearance, (2) a defendant personally appearing in court in a divorce 

action to oppose a temporary restraining order, (3) a defendant serving a demand for security for 

4 CR 55(a)(3) provides: 
       Any party who has appeared in the action for any purpose shall be served with a 
       written notice of motion for default and the supporting affidavit at least 5 days 
       before the hearing on the motion.  Any party who has not appeared before the 
       motion for default and supporting affidavit are filed is not entitled to a notice of 
       the motion.

                                               10 

No. 41821-5-II

costs, and (4) a defendant appearing on a bond in an unlawful detainer action.  Morin, 160 Wn.2d 

at 755-56.  Thus, the court reasoned, "It appears to us that mere intent to defend, whether shown 

before or after a case is filed, is not enough; the defendant must go beyond merely acknowledging 

that a dispute exists and instead acknowledge that a dispute exists in court."  Morin, 160 Wn.2d 

at 756.  Accordingly it held:

       Parties formally served by a summons and complaint must respond to the summons 
       and complaint or suffer the consequences of a default judgment.  Accordingly, we 
       hold that parties cannot substantially comply with the appearance rules through 
       prelitigation contacts.  Parties must take some action acknowledging that the 
       dispute is in court before they are entitled to a notice of default judgment hearing.

Morin, 160 Wn.2d at 757.  

       Ichikawa, citing Division One's decision in Colacurcio v. Burger, 110 Wn. App. 488, 41 

P.3d 506 (2002), argues that the Morin court limited its holding to prelitigation (i.e., prefiling) 

contacts and, thus, he substantially complied with the appearance requirement through ACIC's 

postfiling contacts with Kimball.  In Colacurcio, the defendant's insurer engaged in settlement 

negotiations both before and after the plaintiff filed suit.  110 Wn. App. at 491.  Division One 

affirmed the trial court's vacation of a default judgment in favor of the plaintiff, holding that the 

defendant had informally appeared through the settlement negotiations by her agent, her insurance 

company.  Colacurcio, 110 Wn. App. at 491.  

       Ichikawa's argument fails for several reasons.  The Colacurcio court did not distinguish 

between postlitigation contacts and prelitigation contacts as a basis for its holding.  See 110 Wn. 

App. at 495-97.  Furthermore, the Colacurcio court relied on the informal appearance doctrine as 

formulated in Batterman v. Red Lion Hotels, Inc., 106 Wn. App. 54, 59, 21 P.3d 1174 (2001), 

abrogated by Morin, 160 Wn.2d at 749, a doctrine Morin expressly rejected and expressly 

                                               11 

No. 41821-5-II

abrogated.  Compare Morin, 160 Wn.2d at 749, 756, with Colacurcio, 141 Wn. App. at 497.  

Accordingly, Colacurcio is no longer good law after Morin.  Finally, Ichikawa is correct that the 

Morin court limited its express holding to prelitigation contacts being insufficient for substantial 

compliance with the appearance requirement.  160 Wn.2d at 757.  But the Morin court's 

reasoning clearly extended to postlitigation contacts as well:  "mere intent to defend, whether 

shown before or after a case is filed, is not enough; the defendant must . . . acknowledg[e] that a 

dispute exists in court." 160 Wn.2d at 756 (original emphasis omitted) (emphasis added). 

       Accordingly, ACIC's contacts with Kimball after she filed the complaint were not 

sufficient for Ichikawa to substantially comply with CR 55(a)(3)'s appearance requirement.  

Further, Ichikawa's first acknowledgement that a dispute existed in the trial court occurred when 

his counsel filed a notice of appearance on January 3, 2011, one month after Kimball obtained her 

default judgment and two weeks after Kimball sent a demand letter for payment of the judgment.  

Thus, the trial court did not abuse its discretion in concluding that Ichikawa was not entitled to 

notice of the default hearing under CR 55(a)(3).  

III.   CR 60 Excusable Neglect and Inequitable conduct

       Ichikawa also argues that the trial court abused its discretion in denying his motion to 

vacate the default judgment under CR 60 because (1) Kimball's alleged concealment of the 

complaint's filing, combined with a lack of actual notice to Ichikawa of substitute service on the 

secretary of state, caused his lack of appearance and his conduct constituted excusable neglect, 

and (2) Kimball's alleged concealment of the lawsuit was inequitable conduct warranting 

vacation.  We again disagree.

       We review a trial court's denial of a motion to vacate under CR 60 for abuse of discretion.  

                                               12 

No. 41821-5-II

Morin, 160 Wn.2d at 753.  CR 55(c)(1) provides, "For good cause shown and upon such terms as 

the court deems just, the court may set aside an entry of default and, if a judgment by default has 

been entered, may likewise set it aside in accordance with [CR] 60(b)."  

       CR 60(b)(1) provides that the trial court may relieve a party from a final judgment or 

order for "[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a 

judgment or order." CR 60(b)(4) provides for relief from a judgment or order where there is 

"[f]raud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other 

misconduct of an adverse party."

       Washington does not favor default judgments, and proceedings to vacate a default 

judgment are equitable in character and courts administer relief from default judgments according 

to equitable principles.  Morin, 160 Wn.2d at 754.  Accordingly, we interpret CR 55 and CR 60 

liberally in favor of vacating default judgments.  Morin, 160 Wn.2d at 754-55.

       A.  Excusable Neglect

       A trial court may vacate a default judgment under a liberal, equitable interpretation of CR 

60(b)(1) if the moving party meets a four-part test:  (1) the moving party had a prima facie 

defense supported by substantial evidence to the opposing party's claims, (2) the moving party 

failed to timely appear before default because of "excusable neglect," (3) the moving party acted 

with due diligence after discovering the judgment, and (4) the opposing party would not 

experience substantial hardship if the court vacated the judgment.  Morin, 160 Wn.2d at 755; 

Puget Sound Med. Supply v. Dep't of Soc. &Health Servs., 156 Wn. App. 364, 373 n.9, 234 

P.3d 246 (2010).  The first two factors are "primary," and the latter two are "secondary."  Little 

v. King, 160 Wn.2d 696, 704, 161 P.3d 345 (2007).  Whether a defendant presents a strong 

                                               13 

No. 41821-5-II

defense or a prima facie defense will affect how much scrutiny the trial court gives the other

factors:

       [W]here the moving party is able to demonstrate a strong or virtually conclusive 
       defense to the opponent's claim, scant time will be spent inquiring into the reasons 
       which occasioned entry of the default, provided the moving party is timely with his 
       application and the failure to properly appear in the action in the first instance was 
       not willful.  On the other hand, where the moving party is unable to show a strong 
       or conclusive defense, but is able to properly demonstrate a defense that would, 
       prima facie at least, carry a decisive issue to the finder of the facts in a trial on the 
       merits, the reasons for his failure to timely appear in the action before the default 
       will be scrutinized with greater care, as will the [promptness] of his application and 
       the element of potential hardship on the opposing party.

White, 73 Wn.2d at 352-53.  

       Regarding the first factor, Ichikawa does not dispute liability for Kimball's damages. 

Ichikawa argues that he presented a prima facie defense to the amount of damages awarded 

because substantial evidence, i.e., medical expert testimony, did not support them, and because 

the award was excessive on its face.  

       But the trial court indicated that it considered Kimball's medical records in calculating the 

damages award.  Her medical records, however, are not part of the record on appeal.  

Accordingly, we are unable to review the evidence before the trial court when it entered the 

award.  A party seeking review bears the burden of perfecting the record on appeal, and an 

insufficient appellate record precludes review of the alleged errors.  RAP 9.2(b); Bulzomi v. Dep't 

of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994).  Accordingly, we are unable to 

review Ichikawa's claim that he presented a prima facie defense to the amount of damages, other 

than the argument he raises for the first time on appeal that the trial court abused its discretion in 

awarding $32,400 for future medical special damages without hearing expert testimony.  But he 

                                               14 

No. 41821-5-II

fails to provide argument or citation to authority supporting why we should now consider this 

claim that he did not raise in his motion to vacate the default judgment.  RAP 2.5(a)(3); RAP 

10.3(a)(6).  Further, his opening brief fails to support his claim that general damages of $150,000 

were excessive on their face with citation to authority or evidence he presented to the trial court 

showing the excessive nature of the damages award.  

       Additionally, Ichikawa argues that the trial court failed to consider the evidence his 

counsel presented at the default hearing, i.e., the ACIC claims adjuster's affidavit showing that 

Kimball offered to settle for a lesser amount than the damages she requested at the default 

hearing.  But "[i]t is not a prima facie defense to damages that a defendant is surprised by the 

amount or that the damages might have been less in a contested hearing."  Little, 160 Wn.2d at 

704.  

       Finally, Ichikawa claims that he was unable to contest the amount of Kimball's damages 

without the benefit of discovery and expert testimony.  But here Ichikawa ignores Kimball's 

medical records that were included in her August 18, 2010, demand letter, and Ichikawa did not 

refer to these records at the hearing on his motion to vacate the default judgment.  For all these 

reasons, he fails to establish that he had a prima facie defense to the damages the trial court

awarded.  

       Regarding the second factor, Ichikawa argues only that the lack of actual notice to him, 

coupled with Kimball's alleged concealment of the complaint's filing from ACIC, excused his 

failure to appear.  But, as we discuss above, Kimball met the statutory requirements for substitute 

service on the secretary of state, and actual notice to Ichikawa was not required.  Supra, at 6-7.

       Further, Kimball's August 18 letter to ACIC clearly stated that she would continue trying 

                                               15 

No. 41821-5-II

to serve Ichikawa and would proceed to trial if the parties did not settle.  The reference to service 

on Ichikawa and the statement that Kimball would proceed to trial were sufficient to notify ACIC 

that Kimball had filed a complaint in court.  Accordingly, Kimball did not conceal the complaint's 

filing from Ichikawa, and Ichikawa offers no other explanation why he or ACIC did nothing 

during the subsequent three months before learning of the default judgment.  Thus, Ichikawa fails 

to satisfy the second factor.  

       Because Ichikawa fails to satisfy either of the two primary factors, we need not discuss the 

remaining, secondary factors.5  See Morin, 160 Wn.2d at 758 (ending analysis where defendants 

failed to establish excusable neglect); Puget Sound Med. Supply, 156 Wn. App. at 373 n.9 

(declining to address the remaining elements where defendant failed to show excusable neglect).  

Accordingly, the trial court did not abuse its discretion in denying Ichikawa's motion under CR 

60(b)(1) to vacate the default judgment. 

       B.  Inequitable Conduct

       A trial court should also vacate a default judgment under CR 60(b)(4) where the plaintiff's 

conduct would make enforcing the judgment inequitable.  Morin, 160 Wn.2d at 755.  Ichikawa, 

citing Morin, 160 Wn.2d at 759, contends that the trial court abused its discretion in denying his 

motion to vacate the default judgment based on Kimball's inequitable conduct in allegedly 

concealing the complaint's filing from him and ACIC.  We have already concluded that she did 

5 Ichikawa, citing Division Three's decision in Norton v. Brown, 99 Wn. App. 118, 124, 992 P.2d 
1019 (1999), argues that the trial court abused its discretion in failing to consider the two 
secondary factors.  But, in Norton, the trial court found that Brown had demonstrated a prima 
facie defense but had not shown excusable neglect.  99 Wn. App. at 124.  Division Three 
disagreed, holding that Brown had also shown excusable neglect, and proceeded to analyze the 
remaining two secondary factors.  Norton, 99 Wn. App. at 124-26.  Unlike Norton, in this case 
Ichikawa demonstrated neither a prima facie defense nor excusable neglect.  The trial court did 
not abuse it discretion in not considering the two secondary factors, and Ichikawa's claim fails. 
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No. 41821-5-II

not conceal the filing of the complaint or her desire to obtain service on Ichikawa.  Nevertheless, 

we briefly address this claim.

       Morin consolidated three cases.  160 Wn.2d at 753.  In one of the cases, the Gutzes and 

the Johnsons were involved in an automobile accident.  Morin, 160 Wn.2d at 758.  The Gutzes'

counsel engaged in settlement discussions with the Johnsons' insurer.  Morin, 160 Wn.2d at 751.  

Shortly after the statute of limitations ran, the insurer called Gutzes' counsel to discuss settlement 

and asked whether there would be litigation.  Morin, 160 Wn.2d at 758.  The Gutzes had filed 

suit shortly before the statute of limitations ran, but their attorney made no mention of the suit to 

the insurer during the conversations about settlement.  Morin, 160 Wn.2d at 758.  Without 

informing the insurer that a default judgment was pending, counsel continued to negotiate a 

settlement with the insurer.  Morin, 160 Wn.2d at 758-59.

       Our Supreme Court observed that "[the] Gutzes' counsel had no duty to inform [the 

insurer] of the details of the litigation."  Morin, 160 Wn.2d at 759.  But the Morin court believed 

that the Gutzes' counsel's failure to disclose may have been an inequitable attempt to conceal the 

litigation that would allow for the default judgment to be set aside and, thus, our Supreme Court 

remanded for the trial court to consider whether "the Johnsons' failure to appear was excusable 

under equity and CR 60." 160 Wn.2d at 759.  

       Here, ACIC never asked Kimball whether litigation would or did exist.  More importantly, 

Kimball disclosed to ACIC in her August 18 letter that she would continue to attempt to serve 

Ichikawa and, thus, disclosed the existence of the lawsuit.  Ichikawa claims that Kimball misled 

the trial court during the following exchange at the hearing on the motion to vacate:

       [Trial Court]:  Okay.  And I noticed there's an insurance company listed here in 
       the police report.  Do you  --  did you contact the insurance company to  to see if 

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No. 41821-5-II

       there's  --  if  --      
       [Kimball's Counsel]:  They were not helpful.
       [Trial Court]:   --  you  --  you did try to contact them and  -- 
       [Kimball's Counsel]:  Oh yes.  Oh yes.  

RP at 17.  Although Kimball never asked ACIC whether it knew Ichikawa's whereabouts, she 

disclosed her attempts to serve him and, thus, the existence of the lawsuit.  Even if her 

representation to the trial court was little more than technically correct, it does not change the fact 

that she disclosed the lawsuit's existence to ACIC several months before the default judgment.  

Accordingly, the trial court did not abuse its discretion in finding that Kimball did not engage in 

inequitable conduct warranting vacation under CR 60(b)(4), and Ichikawa's claim fails.

IV.    Frivolous Appeal

       Kimball requests an award of attorney fees and costs under RAP 18.9(a) as a sanction for 

Ichikawa's frivolous appeal.  An appeal is frivolous when, considering the record in its entirety 

and resolving all doubts in favor of the appellant, no debatable issues are presented upon which 

reasonable minds might differ; i.e., it is so devoid of merit that no reasonable possibility of 

reversal exists.  In re Marriage of Meredith, 148 Wn. App. 887, 906, 201 P.3d 1056 (2009).  An 

appeal that we affirm is not frivolous simply because we reject its arguments.  Streater v. White, 

26 Wn. App. 430, 435, 613 P.2d 187 (1980).  

       Here, although we reject Ichikawa's arguments, several of them involve intensive factual 

inquiries in which, theoretically, reasonable minds might differ.  Accordingly, we hold that 

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No. 41821-5-II

Ichikawa's appeal is not frivolous and we deny Kimball's request for attorney fees and costs. 

       A majorityof the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is 

so ordered.

                                                 Van Deren, J.
We concur:

Armstrong, J.

Worswick, A.C.J.

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