Filed 6/11/19

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANGELE LASALLE,

 Plaintiff and Respondent,

v.

JOANNA T. VOGEL, 

 Defendant and Appellant.

 G055381

 (Super. Ct. No. 30-2016-00836641)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Randall 

J. Sherman, Judge. Reversed with directions.

Law Offices of Dorie A. Rogers, Dorie A. Rogers and Lisa R. McCall for 

Defendant and Appellant.

Law Office of Frank W. Battaile and Frank W. Battaile for Plaintiff and 

Respondent.
2

Here is what Code of Civil Procedure1 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.”2 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.

FACTS

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 

 

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated. 

2 Hamlet, Act I, Scene 4, ll. 15-16.
3

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. We quote the entirety of Lasalle’s declaration in support of 

the set aside motion in the margin.4

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 

 

3 It took Vogel four days because she initially contacted an attorney who had just decided to 

represent one of the codefendants – other attorneys who had represented Lasalle, but are not parties to this appeal. 

4 “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 counsel at the time is not Vogel’s appellant’s counsel on appeal.
4

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. 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. 

We sympathize with the court below and opposing counsel. We have all 

encountered dilatory tactics and know how frustrating they can be. But we cannot see 

this as such a situation, and cannot countenance the way this default was taken, so we 

reverse the judgment.

DISCUSSION

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.)
5

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-thefire 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 
6

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 
7

is not a business. It is a profession. And those who practice it carry a concomitantly 

greater responsibility than businesspeople. 

So what we review in this case is not so much a failure of court and counsel 

as an insidious decline in the standards of the profession that must be addressed. “The 

term ‘officer of the court,’ with all the assumptions of honor and integrity that append to 

it must not be allowed to lose its significance.” (Kim, supra, at p. 292.) We reverse the 

order in this case because that significance was overlooked.

An order denying a motion to set aside a default is appealable from the 

ensuing default judgment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 

(Rappleyea).) We acknowledge the standard of review for an order denying a set aside 

motion is abuse of discretion. (Ibid.) But there is an important distinction in the way that 

discretion is measured in section 473 cases. The law favors judgments based on the 

merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in 

this area doubts must be resolved in favor of relief, with an order denying relief 

scrutinized more carefully that an order granting it. As Justice Mosk put it in Rappleyea, 

“Because the law favors disposing of cases on their merits, ‘any doubts in applying 

section 473 must be resolved in favor of the party seeking relief from default [citations]. 

Therefore, a trial court order denying relief is scrutinized more carefully than an order 

permitting trial on the merits.’ (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; see 

also Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136.)” (Id. at p. 

980.)5

Warning and notice play a major role in this scrutiny. Six decades ago, 

when bench and bar conducted themselves as a profession, another appellate court, in 

language both apropos to our case and indicative of how law ought to be practiced, said, 

 

5 Indeed, some cases go so far as to say “‘very slight evidence will be required to justify a court in 

setting aside the default.’ [Citation.]” (Miller v. City of Hermosa Beach, supra, at p. 1136.) More on this point 

below. 
8

“The quiet speed of plaintiffs’ attorney in seeking a default judgment without the 

knowledge of defendants’ counsel is not to be commended.” (Smith v. Los Angeles 

Bookbinders Union (1955) 133 Cal.App.2d 486, 500 (Bookbinders).)6

In contrast to the stealth and speed condemned in Bookbinders, courts and 

the State Bar emphasize warning and deliberate speed. The State Bar Civility Guidelines 

deplore the conduct of an attorney who races opposing counsel to the courthouse to enter 

a default before a responsive pleading can be filed. (Fasuyi v. Permatex, Inc. (2008) 167 

Cal.App.4th 681, 702 (Fasuyi), quoting section 15 of the California Attorney Guidelines 

of Civility and Professionalism (2007).) Accordingly, it 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. (Id. at pp. 701-702.)

In that regard we heartily endorse the related admonition found in The 

Rutter Group practice guide, and we note the authors’ emphasis on reasonable time: 

“Practice Pointer: If you’re representing plaintiff, and have had any contact with a 

lawyer representing defendant, don’t even attempt to get a default entered without first 

giving such lawyer written notice of your intent to request entry of default, and a 

reasonable time within which defendant’s pleading must be filed to prevent your doing 

so.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter 

Group 2008) § 5:73, p. 5-19 (rev. #1, 2008) as quoted in Fasuyi, supra, 167 

Cal.App.4th at p. 702.) 

To be sure, there is authority to the effect giving any warning at all is an 

“ethical” obligation as distinct from a “legal” one. The appellate case usually cited these 

days for this ethical-legal dichotomy is Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 

1038 (Bellm). Indeed, it was the most recent case cited by the trial court’s minute order 

denying Vogel’s set aside motion.

 

6 Disapproved on other grounds in MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 551.
9

Bellm was written at a time when incivility was surfacing as a problem in 

the legal profession.7 “Like tennis, the legal profession used to adhere to a strict etiquette 

that kept the game mannerly. And, like tennis, the law saw its old standards crumble in 

the 1970s and 1980s. Self-consciously churlish litigators rose on a parallel course with 

Jimmy Connors and John McEnroe.” (Gee & Garner, The Uncivil Lawyer: (1996) 15 

Rev. Litig. 177, 190.) Thus the majority opinion in Bellm lamented the “lack of 

professional courtesy” in counsel’s taking a default without warning (See Bellm, supra, 

150 Cal.App.3d at p. 1038 [“we decry this lack of professional courtesy”]) but deemed it 

an ethical issue rather than a legal one and affirmed the trial court’s denial of relief. The 

Bellm dissent would have found an abuse of discretion. (Bellm, supra, 150 Cal.App.3d at 

p. 1040 (dis. opn. of Haning J.).)

But Bellm was handed down on January 19, 1984. That was only two 

weeks after section 583.130, quoted above, went into effect. The section obviously could 

not have been briefed or argued in that case, so the Bellm court did not have the benefit of 

the statute. The statute was passed to curb what the Legislature considered an 

inappropriate rise in motions to dismiss for lack of prosecution – sometimes brought, like 

this one, as soon as a time limit was exceeded. As the Law Revision Commission 

phrased it: 

“Over the years the attitude of the courts and the Legislature toward 

dismissal for lack of prosecution has varied. From around 1900 until the 1920’s the 

dismissal statutes were strictly enforced. Between the 1920’s and the 1960’s there was a 

process of liberalization of the statutes to create exceptions and excuses. Beginning in 

the late 1960’s the courts were strict in requiring dismissal. In 1969, an effort was made 

in the Legislature to curb discretionary court dismissals, but ended in authority for the 

 

7 The incivility lamentations we quoted earlier began in 1989, although this case certainly falls into 

the voice-crying-in-the-desert type of entreaty that grew louder a few years later.
10

Judicial Council to provide a procedure for dismissal. In 1970, the courts brought an 

abrupt halt to strict construction of dismissal statutes and began an era of liberal 

allowance of excuses that continued to the early 1980’s. The judicial attitude in the latter 

time was stated by the Supreme Court: ‘Although a defendant is entitled to the weight of 

the policy underlying the dismissal statute, which seeks to prevent unreasonable delays in 

litigation, the policy is less powerful than that which seeks to dispose of litigation on the 

merits rather than on procedural grounds.’” (Wheeler v. Payless Super Drug Stores 

(1987) 193 Cal.App.3d 1292, 1295, quoting Denham v. Superior Court (1970) 2 Cal.3d 

557, 566; see also Hocharian v. Superior Court (1981) 28 Cal.3d 714.)

So 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. The ethical obligation to warn opposing counsel of an intent to 

take a default is now reinforced by a statutory policy that all parties “cooperate in 

bringing the action to trial or other disposition.” (§ 583.130.) Quiet speed and 

unreasonable deadlines do not qualify as “cooperation” and cannot be accepted by the 

courts.

We cannot accept it because it is contrary to legislative policy and because 

it is destructive of the legal system and the people who work within it. Allowing it to 

flourish has been counterproductive and corrosive. First, it has led to increased litigation. 

Unintended defaults inevitably result in motions to overturn them (this case, exemplary in 

no other way, demonstrates well the resources consumed by such motions) or lawsuits 

against the defaulted party’s attorney (who thought enough of his client’s position to 

agree to represent him and then bungled it). There are plenty of demands on our legal 

resources without adding such matters.

But worse than that, it forces practitioners to sail between Scylla and 

Charybdis. They are torn between the civility we teach in law schools, require in their 

oath, and legislate in statutes like section 583.130, and their obligation to represent their 
11

client as effectively as possible. We ask too much of people with families and mortgages 

– not to mention ex-spouses who fail to make tax and mortgage payments – when we ask 

them to choose “dignity, courtesy, and integrity” over easy “fish in a barrel” victories that 

are perceived to have statutory support. We owe ourselves an easier choice, and the 

legislature has given it to us in section 583.130. 

With that in mind, we conclude that by standards now applicable to such 

motions, the trial judge here abused his discretion in not setting aside the default. Several 

factors combine to convince us of that.

The first is the use of email to give “warning.” Email has many things to 

recommend it; reliability is not one of them. Between the ease of mistaken address on 

the sender’s end and the arcane vagaries of spam filters on the recipient’s end, email is 

ill-suited for a communication on which a million dollar lawsuit may hinge.8 A busy 

calendar, an overfull in-box, a careless autocorrect, even a clumsy keystroke resulting in 

a “delete” command can result in a speedy communication being merely a failed one. 

We all learned in law school that due process requires not just notice, but 

notice reasonably calculated to reach the object of the notice. (See Mullane v. Central 

Hanover Bank & Trust Co. (1950) 339 U.S. 306, 318.) 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. 

(§§ 1013, subd. (e); 1010.6, subd. (a)(2)(A)(ii); Cal. Rules of Court, rule 2.251(b).) 

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 

 

8 The default judgment obtained against Lasalle by respondent was exactly $1,000,000.
12

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 second factor we consider is the short-fuse deadline given by 

respondent’s counsel. It was unreasonably short. It set Vogel up to have her default 

taken immediately. “[T]he quiet taking of default on the beginning of the first day on 

which defendant’s answer was delinquent was the sort of professional discourtesy which, 

under [Bookbinder] justified vacating the default.” (Robinson v. Varela (1977) 67 

Cal.App.3d 611, 616 (Robinson).) 

The third factor is the total absence of prejudice to Lasalle from any setaside, given the relatively short time between respondent seeking the default and Vogel 

asking to be relieved from it. “When evaluating a motion to set aside a default judgment 

on equitable grounds, the ‘court must weigh the reasonableness of the conduct of the 

moving party in light of the extent of the prejudice to the responding party.’” (Mechling 

v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1248-1249.) Setting aside this

default would have involved little wasted time, and the de minimis expenses incurred 

could have been easily recompensed.
13

The fourth factor is the unusual nature of the malpractice claim in this case. 

Some cases are suited for defaults: An impecunious debtor who is sued for an 

unquestionably meritorious debt may very well make a rational decision not to spend 

good money after bad by contesting the case. (See Ostling v. Loring (1994) 27 

Cal.App.4th 1731, 1751 [discussing dynamics bearing on whether a defendant might 

elect to default a given claim].) But this legal malpractice action covering the entirety of 

a family law action lies at the opposite end of the spectrum. 

Because of the facts alleged in the complaint – namely that Vogel had been 

responsible for losing Lasalle’s entire dissolution case – Lasalle’s damages called for 

litigation of multiple items of property characterization, credits, reimbursement claims, 

and perhaps even claims for support. (See d’Elia v. d’Elia (1997) 58 Cal.App.4th 415, 

418, fn. 2 [“every item of marital property presents a host of challenging issues”].) This 

means the malpractice claim here was going to require a trial within a trial about some 

complex issues indeed. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [plaintiff must 

prove that “but for the alleged negligence of the defendant attorney, the plaintiff would 

have obtained a more favorable judgment or settlement in the action in which the 

malpractice allegedly occurred.”].) That’s pretty much the opposite of simple debt 

collection.
14

A fifth factor favoring a set-aside here was the presence of a plainly 

meritorious defense to at least part of Lasalle’s default judgment. That judgment 

eventually included emotional distress damages of $100,000. Those damages are 

contrary to law. In Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1038-1039, this 

court squarely held that emotional distress damages are not recoverable in an action for 

family law legal malpractice. Even if we were not directing the trial court to set aside the 

default, we would have to reduce the judgment by at least this amount as contrary to law, 

and its inclusion only underscores the impossibility of respondent’s 24-hour deadline for 

answering the complaint. 

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,9 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.

And finally, we are disappointed that Vogel’s explanation of her botched 

reply in this case was not considered adequate. A single mother who is juggling the 

 

9 Subdivision (a) of which provides: “Except as provided in this section and in Sections 1102, 

1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an 

opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered 

to prove his or her conduct on a specified occasion.” By their terms all four statutory exceptions are limited to 

criminal actions.
15

inevitable pressures of that role and a caseload of family law matters, and has just learned 

that her ex- has failed to pay the property taxes or make the house payment – thus, 

ironically, throwing those into default – deserves some consideration. 

To be sure, Vogel’s declaration in support of her set aside might have been 

more polished – but then again she had very little time to prepare it. As we have noted, 

one of the considerations in a section 473 motion is how much time has elapsed since the 

default. The clock was ticking, and the obligations noted in the last paragraph were not 

about to disappear. 

In a case like this one, where there would have been no real prejudice had 

the set-aside motion been granted, the rule is that a party’s negligence in allowing a 

default to be taken in the first place “will be excused on a weak showing.” (Aldrich v. 

San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740, italics added.) 

Vogel’s declaration crossed that threshold. 

We do not hold that every section 473 motion supported by a colorable 

declaration must be granted. Since every section 473 motion must be evaluated on its 

own facts, we can hold only that this one should have been granted. As we have said, 

Vogel was notified by unsatisfactory means of an unreasonably short deadline (just being 

out of the office for one day – for example, on another case – would have prevented her 

from meeting it), and she had significant family emergencies of her own, including an 

urgent need to take care of taxes and unpaid mortgage payments lest she lose her home. 

Her neglect was excusable. (See Robinson, supra, 67 Cal.App.3d at p. 616 [noting short 

period of time to respond, press of business, limited office hours during a holiday period 

and defense counsel’s preoccupation with other litigated matters made failure to timely 

file an answer “excusable”].) We hope the next attorney in these straits will not have 

such a compelling set of facts to offer . . . and that opposing counsel will act with 

“dignity, courtesy, and integrity.”

CONCLUSION AND DISPOSITION
16

Supreme Court Chief Justice Warren Burger long ago observed, “[L]awyers 

who know how to think but have not learned how to behave are a menace and a liability 

. . . to the administration of justice. . . . [¶] . . . [T]he necessity for civility is relevant to 

lawyers because they are the living exemplars – and thus teachers – every day in every 

case and in every court and their worst conduct will be emulated perhaps more readily 

than their best.” (Burger, Address to the American Law Institute, 1971, 52 F.R.D. 211, 

215.) In recognition of this fact, section 583.130 says it is the policy of this state 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. 

The judgment is reversed. Appellant will recover her costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.