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Court of Appeal:
No Reversal Where Default Taken Day After Answer Was Due
Justices Say Plaintiff’s Lawyer Breached Ethics, but Defendant Failed to Show Delay in Pleading Was Excusable
By a MetNews Staff Writer
A lawyer committed an ethical breach in taking the defendant’s default the day after the answer was due without providing any forewarning that he would do so, the Third District Court of Appeal has held, but nonetheless declared that a judge did not abuse his discretion in denying a motion seeking discretionary relief under Code of Civil Procedure §473(b).
Acting Presiding Justice Harry E. Hull Jr. authored the unpublished opinion, filed Thursday. The defendant’s perfidiousness was a factor in his conclusion that the motion was justifiably rejected.
Hull also determined that, following a prove-up, Stanislaus Superior Court Judge George J. Abdallah Jr. properly awarded judgment in favor of Bay Area dog breeder Charles Armstrong against defendant Taura Gordon, a Las Vegas realtor. The parties jointly owned a French Bulldog, “Picardy,” in Gordon’s custody but, under their agreement, she was to deliver the dog, a female, to Armstrong for mating purposes, with a split between them of profits from the anticipated sale of puppies,
Gordon reneged. She initially asserted, falsely, that Picardy had died and tried to register that dog with the American Kennel Club (“AKC”) under a different name.
The appeals court slashed the award of damages, however, from $300,000, plus $14,218.87 in prejudgment interest, to $130,000 in damages, with a consequent lowering of prejudgment interest to $6,696.56. An award of damages in the lower sum was required, Hull said, explaining that although Picardy had given birth to one litter of puppies, through arrangement with a breeder other than Armstrong—establishing that the plaintiff suffered a cognizable financial loss by virtue of Gordon not going through with the deal with him—damages based on future litters were too speculative to be sustained.
Contention on Appeal
Gordon argued in her opening brief on appeal that “[t]aking this default without prior warning violated counsel’s ethical obligations, requiring the default be vacated pursuant to Lasalle v. Vogel….”
The 2019 Court of Appeal decision she cited was from the Fourth District’s Div. Three. There, then-Justice William Bedsworth (now retired) wrote:
“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, ‘The quiet speed of plaintiffs’ attorney in seeking a default judgment without the knowledge of defendants’ counsel is not to be commended.’ ”
He was quoting from a 1955 decision by this district’s Court of Appeal in Smith v. Los Angeles Bookbinders Union.
Gordon also cited the 2008 Court of Appeal decision by the First District’s Div. Two in Fasuyi v. Permatex, Inc. which, she said, “emphasized the ethical duty to alert the defendant of an impending default.”
Hull’s Response
Hull agreed that Armstrong’s lawyer, Kevin Rooney of the Stockton firm of Downey Brand LLP, violated both his “ethical duty and legal policy” in applying for entry of a default the day after the answer was due without a forewarning, adding that “there is no evidence that setting the default aside would be prejudicial to Armstrong.” He noted, however, that Abdallah “found no credible evidence of excusable neglect,” the ground for relief from default, under §473(b), upon which Gordon had relied.
That section provides, in part:
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
The jurist wrote:
“The record contains no credible evidence showing that Gordon’s neglect in filing a response to the complaint was excusable. Gordon gave no reason for believing her answer was due at an October case management conference. Her belief was unreasonable in light of her summons expressly informing her the answer was due 30 days after she was served on April 25, 2022. Gordon asserted her press of business kept her from finding California counsel. But press of business is not evidence of excusable neglect.”
Disability Claim
Gordon maintained, in her opening brief on appeal, that her “bi-polar disorder and post-traumatic stress disorder were significant factors leading to her not filing the answer in a timely fashion, especially in conjunction with other factors.” She provided documentary evidence in the trial court that she suffers those disabilities.
Hull responded:
“The evidence shows that despite her disabilities, she was able to maintain a busy work schedule, and after being served she was able to take a trip to Boston, attend social gatherings, and write and forward a letter to the AKC two days before her answer was due falsely stating the dog which the AKC was inquiring about was not Picardy and that she did not know who Picardy was. Gordon was able to function in her daily life.
“Then there is Gordon’s credibility.”
The jurist cited evidence that Gordon not only lied to the AKC, but boasted to a friend that she would thwart Armstrong’s claim through mendacity. Hull said that “more significantly,” Gordon “falsely told the trial court the dog had died,” drawing the conclusion that [f]rom all the above evidence, the trial court found Gordon and her assertions of psychological disability not to be credible.”
Cited Cases Distinguished
Distinguishing cases cited by Gordon, Hull said:
“Here, unlike in Fasuyi and Lasalle, the evidence of inexcusable neglect is clear. Gordon went about her life and career after being served having no justifiable reason for not responding to the complaint. She did not cooperate with Armstrong and Rooney, despite their numerous attempts to initiate settlement discussions and learn her intention for responding to the complaint.”
He continued:
“She engaged in deception and duplicitousness against the parties and the court by falsely claiming Picardy had died. And the trial court found that she and the evidence of her disability affecting her ability to respond were not credible. Under these unique circumstances, where evidence of excusable neglect and mistake is absent, we cannot say the trial court abused its discretion when it denied Gordon’s motion to set aside the default.”
Reduction of Damages
Hull said that expert testimony as to the value of French Bulldog puppies showed that Armstrong’s share of the proceeds from the sale of the first litter would reasonably be set at $130,000, but that damages could not be awarded in a higher amount, despite testimony the plaintiff’s testimony that bitches of that breed customarily have three or four litters. He wrote:
“Gordon’s argument as to the speculative nature of recovering profits on unborn animals, however, carries greater weight regarding any additional litters Picardy may have. Disagreeing with the trial court, we conclude that any evidence of lost profits from additional litters Picardy might birth is too speculative and not reasonably certain. There is too much uncertainty as to the actual damages Armstrong would sustain on additional litters. That Picardy successfully gave birth to one litter of five puppies does not establish to a reasonable certainty that she will successfully give birth to at least two additional litters of five healthy puppies, that she will be bred with Pinky each time, or that either dog would be alive and able to successfully complete the breeding process in the future. The damage award thus must be modified.”
The case is Armstrong v. Gordon, C097489.
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