Arizona Off Duty v. Good Vibe

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ARIZONA OFF-DUTY SPECIALISTS, LLC, Plaintiff/Appellee,

v.

GOOD VIBE PRODUCTIONS, LLC, et al., Defendants/Appellants.

No. 1 CA-CV 24-0495
FILED 04-15-2025

Appeal from the Superior Court in Maricopa County
No. CV2023-017456
The Honorable John R. Hannah Jr., Judge

AFFIRMED

COUNSEL

Thorpe Shwer, P.C., Phoenix
By Caroline Larsen, Maxwell K. Shanahan
Counsel for Plaintiff/Appellee

Foster Law Partners, Phoenix
By Brian J. Foster, Ross P. Meyer
Counsel for Defendants/Appellants
 ARIZONA OFF DUTY v. GOOD VIBE, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Chief Judge David B. Gass and Vice Chief Judge Randall M. Howe
joined.

F U R U Y A, Judge:

¶1 Good Vibe Productions, LLC, MJM Technology, LLC, and
David Fowler (collectively, “Defaulted Defendants”) appeal from the
superior court’s denial of their motion for relief from a default judgment in
favor of Arizona Off-Duty Specialists, LLC (“AOS”). For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In November 2023, AOS sued Defaulted Defendants and
Jason Johnson for various causes of action related to alleged nonpayment
for services rendered in April 2022. AOS served all the defendants via
personal service by November 8, 2023. Caroline Larsen, counsel for AOS,
and Brian Foster, potential counsel for the defendants, began
communicating on November 27, 2023. Larsen told Foster on November 28,
2023, that all defendants had been served.

¶3 None of the defendants filed responsive pleadings within
twenty days from their respective dates of service as required by Arizona
Rule of Civil Procedure (“Rule”) 12(a)(1)(A)(i). On December 11, 2023, AOS
applied for entry of default against Defaulted Defendants.

¶4 On December 12, 2023, Larsen emailed Foster and (1) advised
none of the defendants had filed responsive pleadings and AOS had
already initiated default proceedings and (2) requested confirmation of
representation. Foster replied and confirmed representation of Johnson and
possible representation of Fowler.

¶5 On December 15, 2023, AOS applied for entry of default
against Johnson. That same day, the law firm for counsel representing AOS
emailed Foster the application for entry of default against Johnson and
advised that a hard copy had also been mailed.

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¶6 On December 20, 2023, Larsen emailed Foster and rejected a
settlement proposal and Foster’s request to dismiss Fowler and Johnson. At
Foster’s request, Larsen attached to the email the applications for entry of
default against Defaulted Defendants. On their face, those documents
showed they had been filed on December 11, 2023. Under Rule 55(a)(4), the
default against Defaulted Defendants became effective on December 26,
2023. Foster does not dispute receiving that email and the attachments.

¶7 Three days after December 26, 2023 effective date, on
December 29, 2023, Foster and other defense counsel calculated the date a
responsive pleading was due based on the filing of the application for entry
of default. Defense counsel believed all the applications for entry of default
were filed on the same date: December 15, 2023. Using a calendaring
service, they calculated the responsive pleading due date as January 2, 2024,
based on a December 15, 2023 filing date. Defense counsel avowed they
were not aware that any applications for entry of default had been filed
before December 15, 2023. Defendants filed their answer on January 2, 2024.

¶8 AOS moved for entry of default judgment against Defaulted
Defendants on January 4, 2024. On January 16, 2024, Defaulted Defendants
moved to set aside the entry of default for good cause under Rule 55(c). The
superior court denied the motion and entered a default judgment against
Defaulted Defendants. Defaulted Defendants moved for relief from
judgment, which the court denied.

¶9 We have jurisdiction under A.R.S. § 12-2101(A)(2).

DISCUSSION

¶10 Defaulted Defendants argue the superior court erred in
denying their motion for relief from judgment under Rule 60(b)(1).

¶11 We review the denial of a motion to set aside a default
judgment for clear abuse of discretion. Hirsch v. Nat’l Van Lines, Inc., 136
Ariz. 304, 308 (1983). We resolve any doubt in favor of the party moving to
vacate the default judgment. See DeHoney v. Hernandez, 122 Ariz. 367, 371
(1979). However, we view the facts “in the light most favorable to
upholding the [superior] court’s ruling.” Ezell v. Quon, 224 Ariz. 532, 534 ¶¶
2, 15 (App. 2010). Defaulted Defendants bear the burden to explain why
they did not timely file a responsive pleading. See Sloan v. Florida-Vanderbilt
Dev. Corp., 22 Ariz. App. 572, 574 (1974).

¶12 The court may set aside a final default judgment pursuant to
Rule 60(b). Ariz. R. Civ. P. 55(c). To set aside a judgment under Rule

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60(b)(1), a defendant must show “mistake, inadvertence, surprise, or
excusable neglect” in failing to timely answer. Further, such a defendant
must prove prompt action in seeking relief and a meritorious defense. See
DeHoney, 122 Ariz. at 371.

¶13 The court must deny a motion to vacate a default judgment
when a moving defendant fails to provide “sufficient facts to explain the
failure to take the responsive action required by the rules.” Richas v. Sup.
Ct., 133 Ariz. 512, 515 (1982). Clerical and secretarial errors in a large law
firm or insurance office can constitute excusable neglect, under appropriate
circumstances. Id. at 516. But unexplained errors cannot. Id. Ultimately,
“[d]iligence is the ‘final arbiter of whether mistake or neglect is excusable.’”
Aloia v. Gore, 252 Ariz. 548, 552 ¶ 15 (App. 2022) (quoting City of Phoenix v.
Geyler, 144 Ariz. 323, 332 (1985)).

¶14 “The general test of what is excusable is whether the neglect
or inadvertence is such as might be the act of a reasonably prudent person
under the same circumstances.” Coconino Pulp & Paper Co. v. Marvin, 83
Ariz. 117, 120 (1957). A reasonably prudent attorney with knowledge of
service would file an answer “immediately after learning of the entry of
default.” See Baker Int’l Assocs., Inc. v. Shanwick Int’l. Corp., 174 Ariz. 580, 585
(App. 1993) (emphasis added).

¶15 Here, Defaulted Defendants argue that their counsel erred in
calendaring the deadline for a responsive pleading because they believed
all the applications for entry of default were filed the same day. But
Defaulted Defendants do not show the diligence required to constitute
excusable neglect or mistake under Rule 60(b)(1). The record shows that as
early as December 12, 2023, Foster knew AOS had initiated default
proceedings. Defaulted Defendants do not explain why Foster or other
defense counsel did not check the online docket on December 12, 2023—or
shortly thereafter—to confirm the filing date and calculate the response
deadline. Because Foster had the documents as of December 20, 2023, that
point is particularly telling here. If Foster or his staff had simply opened
and read the attachments, they would have known the applications were
filed on December 11, 2023, not December 15, 2023, and that the actual
response date was December 26, 2023, not January 2, 2024. Instead, Foster
admitted to the court that he incorrectly assumed the applications were
filed on the same date as Johnson’s.

¶16 Beyond the above, the deliberate choice to not check the
online docket to see when AOS filed the applications for entry of default,
the assumption that the applications for all the defendants were all filed the

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same day, and the failure to read the applications for entry of default that
defense counsel had in his possession were not actions of a reasonably
prudent attorney. See Baker, 174 Ariz. at 585; see also Hirsch, 136 Ariz. at 310
(finding no reasonably prudent person would have failed to answer or
request additional time to answer when the attorney could have seen an
entry in a litigation log reminding him of the answer deadline and the
attorney had the relevant documents in his possession but failed to timely
answer); Aloia, 252 Ariz. at 552–53 ¶¶ 15–19 (concluding that an attorney’s
failure to review the superior court’s easily accessible online docket to
determine when a judgment had been signed did not establish the due
diligence required to justify relief from judgment under Rule 60(b)(1)).

¶17 Defaulted Defendants’ reliance on industrial-commission
cases granting relief over the miscalculation of a deadline to file a request
for a hearing or for review is misplaced because those cases highlight the
workers’ compensation statutes’ remedial nature and concomitant liberal
interpretation standard. See e.g., Cook v. Indus. Comm’n, 133 Ariz. 310, 312
(1982) (also noting workers’ compensation proceedings are not
adversarial); Andrews v. Indus. Comm’n, 118 Ariz. 275, 276 (App. 1977).
Defaulted Defendants’ reliance on Geyler, 144 Ariz. 323, cited supra, also
provides no basis to vacate the court’s ruling. In Geyler, the superior court
distribution center stamped two additional dates on a judgment with
corresponding explanations that were partially obscured. 144 Ariz. at 326-
27. An attorney mis-calendared the deadline to move to amend the
judgment based on his erroneous assumption about which date was the
judgment-entry date. Id. at 327. The Arizona Supreme Court vacated the
superior court’s order denying a motion for relief from judgment because
the record showed the mistake was excusable. Id. at 333. Unlike in Geyler,
here there is no confusion about when the applications for entry of default
were filed.

¶18 We also note that the cases on which Defaulted Defendants
rely are of a vintage that predates the ubiquity of computer-assisted
calendaring, internet, electronic access to court dockets, email, texting, and
a host of other advances that improve accuracy and efficiency. Such
advances are a significant distinguishing factor between this case and those
relied on by Defaulted Defendants because the circumstances of law
practice at the time of those cases do not represent the “same
circumstances” present in this case. See Coconino Pulp & Paper Co., 83 Ariz.
at 120 (“The general test of what is excusable is whether the neglect or
inadvertence is such as might be the act of a reasonably prudent person
under the same circumstances.” (emphasis added). Though the general test for
excusable neglect remains unchanged, current technology and modern

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legal practices inform what presently constitutes reasonably prudent
action.

¶19 Because Defaulted Defendants have failed to establish
mistake, inadvertence, surprise, or excusable neglect in failing to timely
answer, we do not consider the other elements required to set aside a
default judgment. See Hirsch, 136 Ariz. at 309. Attorney fault is attributable
to the client. See Gen. Elec. Cap. Corp. v. Osterkamp, 172 Ariz. 185, 190 (App.
1992). The court did not abuse its discretion in denying the motion for relief
from judgment.

CONCLUSION

¶20 For the foregoing reasons, we affirm the court’s ruling. We
award costs to AOS upon compliance with Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 21. Because the underlying dispute is contractual,
we also grant AOS’s request for reasonable attorneys’ fees upon compliance
with ARCAP 21. A.R.S. § 12-341.01.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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