Daily Blast - June 14, 2019 - Lewis Brisbois Bisgaard & Smith LLP

The court of appeal has had enough of incivility in the legal profession. In Lasalle v. Vogel (June 11, 2019) No. G055381, __Cal.App.5th__, Division Three of the Fourth District Court of Appeal held that “[t]he policy of this state is that the parties to a lawsuit ‘shall cooperate.’ Period. Full stop.” (Slip opn., p. 2, quoting Code Civ. Proc., § 583.130.) Attorneys who do not cooperate with one another “are practicing in contravention of the policy of the state and menacing the future of the profession.” (Id. at p. 16.)

Code of Civil Procedure section 583.130 says: “It is the policy of this 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.” (Id. at p. 2.) “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.” (Ibid.) Attorneys today are forced “to sail between Scylla and Charybdis” – torn between the civility taught in law schools and required in the oath new attorneys have had to take since 2014, “and their obligation to represent their client as effectively as possible.” (Id. at pp. 10-11.) “We ask too much of people with families and mortgages … when we ask them to choose ‘dignity, courtesy, and integrity’ over easy ‘fish in a barrel’ victories that are perceived to have statutory support.” (Ibid.) “We owe ourselves an easier choice, and the legislature has given it to us in section 583.130.” (Ibid.)

Based on the standard in section 583.130, the court of appeal concluded that the trial court abused its discretion in not setting aside a default judgment. While several factors combined to convince the court of that, first on the court’s list was counsel’s “use of email to give ‘warning.’” (Id. at p. 11.) “Email has many things to recommend it; reliability is not one of them.” (Ibid.) “While some emails seem to live on for years despite efforts to bleach them out, others have the half-life of a neutrino.” (Id. at p. 12.) “The choice of email to announce an impending default” seemed to the court “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 was difficult for the court “to see this as a genuine warning – especially when 19th century technology – the telephone – was easily available and orders of magnitude more certain.” (Ibid.)

The court acknowledged older authority for the proposition that “giving any warning at all” before seeking a default “is an ‘ethical’ obligation as distinct from a ‘legal’ one,” but held that “to the extent it was possible for a party seeking a default with unseemly haste to commit an ethical breach without creating a legal issue, that distinction was erased by section 583.130.” (Id. at pp. 8, 10.) “Quiet speed and unreasonable deadlines do not qualify as ‘cooperation’ and cannot be accepted by the courts” because they are “contrary to legislative policy and … destructive of the legal system and the people who work within it.” (Id. at 10.) Allowing conduct like this “to flourish has been counterproductive and corrosive” and has led to “an insidious decline in the standards of the profession that must be addressed.” (Id. at pp. 7, 10.)

The court of appeal’s opinion is attached. Have a great weekend and be excellent to each other.