Thursday, June 13, 2019
Court of Appeal:
Professional Ethics, Opinion Says, Require Adequate Warning Before Default Is Sought
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has reversed a $1 million default judgment in a malpractice action against an attorney because the plaintiff’s counsel did not give an adequate warning to the defendant that he would seek an entry of default if she did not file her overdue answer to the complaint.
The reversal comes in an opinion by Justice William W. Bedsworth, filed Tuesday. It reverses a judgment by Orange Superior Court Judge Randall J. Sherman.
The decision brings back to Square One the malpractice action against Garden Grove attorney Joanna T. Vogel, accused of causing a default judgment against the plaintiff, her former client, by not advising her of discovery orders.
Irvine attorney Frank W. Battaile, the lawyer for plaintiff Angele Lasalle, advised Vogel by email on Thursday April 7, 2016, that her answer to the complaint had been due five days earlier and that unless he received it by the close of business the following day, he would seek an entry of default.
There was no response from Vogel.
The following Monday, at 4:03 p.m., Battaile electronically filed in Orange Superior Court a request to enter default. Vogel, through counsel, responded with a motion for relief from default.
In a declaration, Vogel said, in part:
“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.”
The motion pursuant to Code of Civil Procedure §473 was denied, and a year later, judgment was entered.
In his opinion reversing that judgment, Bedsworth proclaimed that Lasalle’s lawyer breached professional ethics by not giving sufficient forewarning that he would seek an entry of default. He cited Code of Civil Procedure §583.130 which 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.”
“Attorneys who do not do so are practicing in contravention of the policy of the state and menacing the future of the profession.”
He pointed also to the State Bar Civility Guidelines which, he posited, “deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed.
“[I]t 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.”
Inadequacy of Notice
Although Battaile did warn Vogel that entry of default would be sought if she did not file an answer by the next day, Bedsworth faulted the shortness of the time allotted and the means of communication of the advisement: email, as opposed to a telephonic communication. He did not delineate how much time need be provided in a warning.
The jurist wrote that “the short-fuse deadline given by respondent’s counsel” was “unreasonably short,” saying that it “set Vogel up to have her default taken immediately.”
As to the notice being provided by email, he said:
“We all learned in law school that due process requires not just notice, but notice reasonably calculated to reach the object of the notice….While there is no due process problem in the case before us now (Vogel has not complained she wasn’t actually served), emails are a lousy medium with which to warn opposing counsel that a default is about to be taken. We find it significant that by law emails are insufficient to serve notices on counsel in an ongoing case without prior agreement and written confirmation….
“Indeed, the sheer ephemerality of emails poses unacceptable dangers for issues as important as whether an entire case will be decided by default and not on the merits. While some emails seem to live on for years despite efforts to bleach them out, others have the half-life of a neutrino. We ourselves have learned the hard way that spam filters can ambush important, non-advertising messages from lawyers who have an important legal purpose and keep them from reaching their intended destination—us. We have, on occasion, had to reschedule oral arguments because notices to counsel of oral argument dates and times sent by email got caught in spam filters and did not reach those counsel, or their requests for accommodation did not reach us.”
“The choice of email 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.”
The full opinion in Lasalle v. Vogel is provided in today’s Slip Opinion Supplement at Page 2691. Excerpts relating to Bedsworth’s comments on ethics of the legal profession appears below.
Justice Bedsworth Provides Dissertation on Professional Legal Ethics
(The following is excerpted from Justice William W. Bedsworth’s opinion in Lasalle v. Vogel, G055381.)
ERE 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.” [Hamlet, Act I, Scene 4, ll. 15-16.] 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—we urge a return to the professionalism it represents.
Three decades ago, our colleagues in the First District, dealing with a case they attributed to a “fit of pique between counsel,” addressed this entreaty to California attorneys, “We conclude by reminding members of the Bar that their responsibilities as officers of the court include professional courtesy to the court and to opposing counsel. All too often today we see signs that the practice of law is becoming more like a business and less like a profession. We decry any such change, but the profession itself must chart its own course. The legal profession has already suffered a loss of stature and of public respect. This is more easily understood when the public perspective of the profession is shaped by cases such as this where lawyers await the slightest provocation to turn upon each other. Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.” (Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641.)
In 1994, the Second District lambasted attorneys who were cluttering up the courts with what were essentially personal spats. In the words of a clearly exasperated Justice Gilbert, “If this case is an example, the term ‘civil procedure’ is an oxymoron.” (Green v. GTE California (1994) 29 Cal.App.4th 407 408.)
In 1997, another appellate court urged bench and bar to practice with more civility. “The law should not create an incentive to take the scorched earth, feet-to-the-fire attitude that is all too common in litigation today.” (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 17.)
By 2002, we had lawyers doing and saying things that would have beggared the imagination of the people who taught us how to practice law. We had a lawyer named John Heurlin who wrote to opposing counsel, “I plan on disseminating your little letter to as many referring counsel as possible, you diminutive shit.” Admonishing counsel to “educate yourself about attorney liens and the work product privilege,” Mr. Heurlin closed his letter with the clichéd but always popular, “See you in Court.” That and other failures resulted in Mr. Heurlin being sanctioned $6,000 for filing a frivolous appeal and referred to the State Bar. Our court thought publishing the ugly facts of the case, which they did in DeRose v. Heurlin (2002) 100 Cal.App.4th 158, would get the bar’s attention. It didn’t.
Almost a decade later, in a case called In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537, the First District tried again. They said, “We close this discussion with a reminder to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth,’ nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.”
Six months later, our court said this, “Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It’s time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions.” We sanctioned counsel $10,000. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293 (Kim).)
This is not an exhaustive catalogue. Were we writing a compendium rather than an opinion, we could include keening from every state, because, “Incivility in open court infects the process of justice in many ways. It compromises the necessary public trust that the system will produce fair and just results; it negates the perception of professionalism in the legal community, and it erodes respect for all people involved in the process.” (In re Hillis (Del. 2004) 858 A.2d 317, 324.)
Courts have had to urge counsel to turn down the heat on their litigation zeitgeist far too often. And while the factual scenarios of these cases differ, they are all variations on a theme of incivility that the bench has been decrying for decades, with very little success.
It’s gotten so bad the California State Bar amended the oath new attorneys take to add a civility requirement. Since 2014, new attorneys have been required to vow to treat opposing counsel with “dignity, courtesy, and integrity.”
That was not done here. Dignity, courtesy, and integrity were conspicuously lacking.
We are reluctant to come down too hard on respondent’s counsel or the trial court because we think the problem is not so much a personal failure as systemic one. Court and counsel below are merely indicative of the fact 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.
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