By: Roger J. Buffington, Esq. and Riley Anderson, JD.
For a long time, courtesy and etiquette among counsel has required a plaintiff to extend ordinary professional courtesy to a newly-sued defendant before entering default. Most attorneys will make significant efforts to “meet and confer” to allow a defendant to properly respond to a complaint before entering default. This despite California Rules of Court, Rule 3.110(g) requiring that a plaintiff file a request for entry of default within 10 days after the time for service has elapsed, e.g. usually 30 days following service. This rule is obviously (and understandably) intended to move cases along when a recalcitrant defendant for whatever reason fails to properly respond to a civil complaint.
A default judgment, at least theoretically, is the same as judgment entered after a trial and a verdict. A defendant can incur a default judgment by ignoring a complaint and failing to file a responsive pleading with the court.
There are many reasons that defendants sometimes fail to respond as required. Sometimes a defendant does not understand that he or she is actually being sued. The caption may not actually contain the specific defendant’s name. Sometimes the allegations do not seem (to the defendant) to involve the defendant. This is particularly possible in DOE defendant amendments where the name of a previously unknown defendant does not appear anywhere in the caption or the allegations. Here at Buffington Law Firm we have dealt with these types of situations many times.
Technically, if a plaintiff enters default against a defendant, eventually the plaintiff can obtain actual judgement against that defendant. Needless to say, this is a harsh remedy. Usually what happens is that eventually the defendant retains competent counsel and either through negotiation or court action the default is reversed. When this is necessary, particularly if court action is required, it involves significant legal expense on the part of the defendant, and sometimes the plaintiff as well. Defaults are to be avoided whenever possible.
The California Court of Appeal recognizes that quick defaults usually simply tie up the courts, represent added expense, and needlessly prolongs the case. In Lasalle v. Vogel [(2019) 36 Cal. App. 5th 127] the Court of Appeal demanded and established a more lenient and forgiving standard. In Lasalle, supra, the Court of Appeal recognized that sometimes when a plaintiff quickly defaulted a tardy defendant that this represents a tactic, rather than a good faith belief that default was appropriate. Lamenting the loss of civility and the rise of cynicism, the court relies on California Code of Civil Procedure Section 583.130’s call that “all parties shall cooperate” to determine that seeking a default with “unseemly haste” is no longer just an ethical breach, but a legal one. [Vogel, supra, at 137]. The ethical obligation to warn opposing counsel of an intent to take a default has been strengthened and reinforced by statute. [Id.] “Quiet speed and unreasonable deadlines do not qualify as ‘cooperation’ and cannot be accepted by the courts.” [Id.].
In Vogel, 36 days after serving the complaint, the plaintiff emailed and mailed a letter notifying defendant Vogel that her response was past due and that if she did not reply by the following day by the close of business then plaintiff would request an entry of default. [Lasalle, supra at 131]. After receiving no response, plaintiff filed a request for entry of default at 4:05 the next day. [Id. Vogel responded just over an hour after receiving a copy of the entry for default and requesting an extension, but it was too late. Id.
On appeal, the court determined that there were many reasons why the actions taken by plaintiff violated the general courtesy, dignity, and cooperation demanded in the legal profession. [Id. at 137–40]. The incredibly short opportunity to respond, the poor communication method of email, and Vogel’s clearly adequate explanation for her botched reply, among other reasons, all demonstrated that the default should not have been granted. Id. Quiet speed and unreasonable deadlines are not indicative of the integrity, courtesy, dignity, and cooperation demanded of attorneys. Id. at 137.
The case law of Vogel appears to be in tension with the deadline announced in Rule 3.110(g). The question then becomes, which view applies? Rules of court comes from the Judicial Council’s authority to “adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute.” [Cal. Const., art. VI, § 6, subd. (d)].. Additionally, the California Constitution requires that “The rules adopted shall not be inconsistent with statute.” Id. No case appears to have directly answered the question of when case law and rules of court conflict. It is accepted that a trial court may not adopt local rules that conflict with the rules of court. [See In re Marriage of Woolsey (2013) 220 Cal. App. 4th 881, 895; Elkins v. Superior Court (2007) 41 Cal. 4th 1337, 1351]. And it is clear from the California Constitution itself that rules of court are subordinate to statute.
Regardless of the lack of clarity on the winner of a conflict between case law and rules of court, the clear winner of a statute over rules of court is sufficient to make a determination here. Vogel rests its conclusion almost entirely on the existence of California Code of Civil Procedure Section 583.130. Vogel, at 136–37. The court interpreted this statute to find requirements that the parties cooperate properly about the entering of default judgments. Id. It is this statutory provision that the court determined was not followed and therefore permitted overturning the decision below. Id. Thus, it was actually the active working out of Section 583.130 that conflicted with Rule of Court 3.110(g). Therefore, Rule 3.110(g) should be subordinate to the Vogel decision.
This does not mean that in every instance there will always be a contradiction between Vogel and Rule 3.110(g). Vogel itself noted that “Since every section 473 motion must be evaluated on its own facts, we can hold only that this one should have been granted.” Vogel, at 140. Section 583.130 and Vogel do not demand a particular waiting time before a default can be filed. What they do demand is cooperation between the parties. It is possible that sufficient cooperation may take place within the 10 day deadline of Rule 3.110. But if circumstances demonstrate that true cooperation has not or cannot take place within the deadline, then the Rules of Court deadline must fall to the cooperation requirements of Section 583.130.
In our opinion, the takeaway from all of this is that sudden defaults, taken either without warning or with little warning, are flat-out inappropriate. When attorneys use this as a tactic to exert pressure on their opponents (and many do) this is a serious violation of ethics. This is the clear message contained in Lasalle v. Vogel [(2019) 36 Cal. App. 5th 127].