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Attorney Duty Regarding Default
If a party does not timely respond, an attorney can file a request for entry of a default and later seek a default judgment. But should an attorney take these actions without giving any notice to the attorney representing the defaulting party? Last month, the Fourth District Court of Appeal published a decision addressing this issue. To find out what they decided, watch the video above and read my summary of the case below.
New Civil Procedure Decision
Shapell Socal Rental Properties v. Chico's FAS (2022) _ Cal.App.5th _ , 2022 WL 9755390: The Court of Appeal reversed the trial court’s order denying defendant’s motion to set aside a default and a default judgment. The case involved a commercial lease, where the tenant started paying lower rent due to COVID-19 issues. Counsel for defendant notified plaintiff of their representation of defendant, and asked plaintiff to give them notice of any actions regarding the lease. Counsel for plaintiff sought a default, and later a default judgment, without notifying defendant’s counsel. The Court of Appeal held that an attorney has both an ethical and statutory obligation to warn opposing counsel, if counsel’s identity is known, of an intent to seek a default and to give counsel a reasonable opportunity to file a responsive pleading. (LaSalle v. Vogel (2019) 36 Cal.App.5th 127, 137 (LaSalle)), and that duty is reinforced by a statutory obligation arising under Code of Civil Procedure section 583.130. The trial court abused its discretion in denying the motion to set aside the default and default judgment and failing to address the breach of ethical and statutory duties by plaintiff’s counsel. (C.A. 4th, October 17, 2022.)
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