IS IT UNETHICAL FOR AN ATTORNEY TO NOT GRANT RELIEF FROM DEFAULT?
IS IT UNETHICAL FOR AN ATTORNEY TO NOT GRANT RELIEF FROM DEFAULT?
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IS IT UNETHICAL FOR AN ATTORNEY TO NOT GRANT RELIEF FROM DEFAULT?

| Jun 13, 2019 | Firm News

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This is a good read of ethics and attorneys’ duties.

Here is what Code of Civil Procedure section 583.130 says:

“It is the policy of the state 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.” That is not complicated language. No jury instruction defining any of its terms would be necessary if we were submitting it to a panel of non-lawyers. The policy of the state is that the parties to a lawsuit “shall cooperate.” Period. Full stop.

Yet the principle the section dictates has somehow become the Marie Celeste of California law – a ghost ship reported by a few hardy souls but doubted by most people familiar with the area in which it’s been reported. The section’s adjuration to civility and cooperation “is a custom, More honor’d in the breach than the observance.”

In this case, we deal here with more evidence that our profession has come unmoored from its honorable commitment to the ideal expressed in section 583.130, and – in keeping with what has become an unfortunate tradition in California appellate law – the California Court of Appeal urges a return to the professionalism it represents.

From 2011 to 2015, Appellant Attorney Joanna T. Vogel (Vogel) represented plaintiff/respondent Angele Lasalle (Lasalle) in the dissolution of a registered domestic partnership with Minh Tho Si Luu. Lasalle repeatedly failed to provide discovery in that case, and the court defaulted her as a terminating sanction. She said her failure to provide discovery was caused by Vogel not keeping her informed of discovery orders, so she sued Vogel for legal malpractice.

Vogel was served with the complaint on March 3, 2016. Thirty five days went by. On the 36th day, Thursday April 7, Lasalle’s attorney sent Vogel a letter and an email – the content was the same – telling her that the time for a responsive pleading was “past due” and threatening to request the entry of a default against Vogel unless he received a responsive pleading by the close of business the next day, Friday April 8. Our record does not include the time of day on Thursday when either the email was sent or the letter mailed, so we cannot evaluate the chance of the letter reaching Vogel in Friday’s post except to say it was slim.

Counsel did not receive any response from Vogel by 3 p.m. the following Monday, April 11. He filed a request for entry of default and emailed a copy to Vogel at 4:05 p.m. That got Vogel’s attention and she emailed her request for an extension at 5:22 p.m., but by then the default was a fait accompli.

Vogel acted rather quickly now that her default had been entered. She found an attorney by Friday April 15th,3 and that attorney had a motion to set aside the default on file a week later. Quoted is the entirety of Vogel’s declaration in support of the set aside motion in the margin.

“I am an attorney at law, and the defendant in this matter. [¶] When I was served with the summons and complaint, I was in the middle of a number of family law matters in court as the attorney. [¶] I was also involved in my own divorce, wherein I had just discovered my husband had failed to pay the taxes on our property, and it had gone into default. Also he failed to pay the mortgage on the family residence and it went into default. [¶] I received the summons and complaint and the discovery and had met with an attorney to represent me. I then learned that the lawyer had just associated with one of the other defendants in this matter. [¶] I therefore, determined to find a new attorney and contacted the plaintiff’s attorney to request a brief extension to respond to the complaint. While waiting to hear back and without having the courtesy of the extension, I received the notice of default. [¶] I was served with discovery before I even answered the complaint, and had begun to work on that as well. [¶] I am a single mother and between taking care of the family, the practice of law, and trying to revive [sic] the files of from the plaintiff, I did fail to timely file my answer. [¶] As soon as I could, I contacted [the attorney who filed the motion] and retained him to represent me. I provided for him the summons and complaint, but have yet to gather the files together to answer what appears to be an unverified complaint. [¶] I have attached hereto my proposed answer. [¶] I state the above facts to be true and so state under penalty of perjury this 16th day of April in Fullerton, California.”

Vogel’s set-aside motion was made pursuant to those provisions of subdivision (b) of section 473 that commit the matter to the trial court’s discretion in cases of “mistake, inadvertence, surprise, or excusable neglect.” There was no “falling on the sword” affidavit of fault that might have triggered application of those provisions of section 473 requiring a set-aside when an attorney confesses fault.

In opposing relief, respondent’s counsel asked the trial court to take judicial notice of state bar disciplinary proceedings against Vogel stemming from two unrelated cases, which had resulted in a stayed suspension of Vogel’s license to practice.

This is how the California Court of Appeal surmised on the state bar disciplinary proceedings: Next, there 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. Evidence Code section 1101 represents the Legislature’s general disapproval of the use of specific instances of a person’s character to establish some bad act. We note the statute is not limited to criminal cases by its terms, though it usually shows up in criminal cases. (See People v. Nicolas (2017) 8 Cal.App.5th 1165, 1176 [“The purpose of this evidentiary rule ‘is to assure that a defendant is tried upon the crime charged and is not tried upon an antisocial history.’ [Citation.]”.) Nonetheless, the point is the same: judicial decisions should fit the facts of a case and not be based on some general evaluation of a person’s personal history. The fact Vogel had failed to comply with standards of professional conduct in the past should not have colored the determination of whether she deserved an extension in this case.

The court denied the set-aside motion in a minute order filed June 9, 2016, in which the trial judge expressly took judicial notice of Vogel’s prior discipline. A year later, a default judgment was entered against Vogel for $1 million. She has appealed from both that judgment and the order refusing to set aside the default.

The California Court of Appeal sympathized with the court below and opposing counsel. We have all encountered dilatory tactics and know how frustrating they can be. But the California Court of Appeal  could not see this as such a situation, and could not countenance the way this default was taken, so the California Court of Appeal  reversed the judgment.

See LaSalle v. Vogel.

If you are  faced with such legal issues, you need a highly skilled and tenacious attorney as your advocate!  Contact the Law Office of Robert Rodriguez!

Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts.  Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.

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