DEFAULT MOTIONS – PROFESSIONALISM/CIVILITY – ABUSE OF DISCRETION
LaSalle v. Vogel (2019) 36 Cal.App.5th 127 provides Justice William Bedsworth, writing for the Court, with a platform to talk about the big picture issue of declining civility and professionalism in the practice of law, the more immediate problem that attorneys are rushing to file default motions without first talking to opposing counsel and that, in the instant matter, before it, the trial court abused its discretion for multiple reasons for not vacating the default.
In LaSalle, the plaintiff sued Vogel, her former attorney, for legal malpractice. Thirty-five days after the complaint was served and Vogel had not responded, LaSalle’s attorney notified Vogel that her default would be entered unless the attorney received a responsive pleading the next day, a Friday. The attorney filed a request for entry of default the following Monday when no responsive pleading had been filed. Immediately after being emailed a copy of the default request, Vogel asked for an extension and then moved to set aside the default, pursuant to the “mistake, inadvertence, surprise, or excusable neglect” language of C.C.P. sec. 473, subd. (b). In a supporting declaration, Vogel stated that she had a busy family law practice; was going through a difficult divorce; was attempting to address problems caused by her former husband’s failing to make house payments and pay property taxes; faced conflict issues when looking for an attorney to represent her in the default proceeding and had asked for an extension to file a responsive pleading. In opposing relief, LaSalle’s counsel asked the trial court to take judicial notice of state bar disciplinary proceedings against Vogel stemming from two unrelated cases. The court denied the set-aside motion in which it took judicial notice of the prior discipline. Ultimately, a default judgment was entered for $1 million. The appellate court reversed the judgment.
Bedsworth first reviewed several examples of egregious attorney conduct in published decisions to show that the courts have been trying, with little success, to remind counsel “that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility.” (Id. at p. 133-134.) Perhaps, he mused, the continuing lack of civility was a reflection of the fact that “practitioners have become inured to this kind of practice. They have heard the mantra so often unthinkingly repeated that, “This is a business,” that they have lost sight of the fact the practice of law is not a business. It is a profession. And those who practice it carry a concomitantly greater responsibility than businesspeople.” (Id. at p. 134; emphasis in the original.)
Bedsworth then looked at the speed with which LaSalle’s attorney had filed the default motion and reminded that Smith v. Los Angeles Bookbinders Union (1955) 133 Cal.App.2d 486, 500 had advised, “The quiet speed of plaintiffs’ attorney in seeking a default judgment without the knowledge of defendants’ counsel is not to be commended.” (Id. at p. 135.) He found support for the same proposition in The State Bar Civility Guidelines, which “deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed. (Citation.) Accordingly, it is now well acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default. (Citation.)” (Id. at p. 135; emphasis in the original.)
Bedsworth next discussed the relevance and importance of C.C.P. section 583.130, which provides “that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition,” which reinforces the ethical obligation to warn opposing counsel of an intent to take a default. “Quiet speed and unreasonable deadlines do not qualify as “cooperation” and cannot be accepted by the courts” (id. at p. 137) because they are “contrary to legislative policy” and “destructive of the legal system and the people who work within it.” (Ibid.) The practice has led to increased litigation and causes practitioners to choose “between the civility we teach in law schools … and their obligation to represent their client as effectively as possible.” (Ibid.)
With sec. 583.130 as a foundation, Bedsworth concluded that the trial judge had abused his discretion in not setting aside the default because of several factors: Email notice “is ill suited for a communication on which a million dollar lawsuit may hinge” (Id. at pp. 13-138.) “The choice of e-mail to announce an impending default seems to us hardly distinguishable from stealth. And since the other course adopted by respondent’s trial attorney was mailing a letter on Thursday in which he demanded a response by Friday, it is difficult to see this as a genuine warning—especially when 19th century technology—the telephone—was easily available and orders of magnitude more certain.” (Id. at p. 138.) The second factor was “the short-fuse deadline given by respondent’s counsel. It was unreasonably short. It set Vogel up to have her default taken immediately.” (Ibid.; emphasis in the original.) “The third factor is the total absence of prejudice to Lasalle from any set-aside, given the relatively short time between respondent seeking the default and Vogel asking to be relieved from it.” (Id. at pp. 138-139.) “The fourth factor is the unusual nature of the malpractice claim in this case. … this legal malpractice action covering the entirety of a family law action lies at the opposite end of the spectrum and was “pretty much the opposite of simple debt collection.” (Ibid.) “A fifth factor … was the presence of a plainly meritorious defense to … part of Lasalle’s default judgment (which) eventually included emotional distress damages …., which are … contrary to law.” (Ibid., emphasis in the original.) Sixth, “was the trial court’s taking judicial notice of, and reliance on, Vogel‘s two previous instances of discipline for not having properly communicated with clients on previous cases.” (Ibid.) (W)e are disappointed that Vogel‘s explanation of her botched reply in this case was not considered adequate.” (Ibid.)
In conclusion, and in reversing the trial court’s judgment, Bedsworth reminded and observed that “section 583.130 says it is the policy of this state that ‘all parties shall cooperate in bringing the action to trial or other disposition.’ Attorneys who do not do so are practicing in contravention of the policy of the state and menacing the future of the profession.” (Id. at p. 141.)
Judge Michael D. Marcus (Ret.)
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