Lawyer’s Ignorance of Law Was No Basis for Relief From Default

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Amazing that an attorney did NOT know the rules - not really. It is shocking how many attorneys are not well versed on the rules to the detriment of their clients.


Court of Appeal:

Lawyer’s Ignorance of Law Was No Basis for Relief From Default


Says Failure to File Responsive Pleading Was Not Excused Based on Notion of  Self-Represented Attorney That Arbitration Clause Precluded a Need to Do So



An attorney’s ignorance of the law was no excuse for failing to file a responsive pleading to a malpractice complaint, the Court of Appeal for this district held yesterday, overturning an order granting relief from default.


The unpublished opinion, authored by Justice Thomas Willhite of Div. Four, announces the issuance of a writ of mandate directing the Los Angeles Superior Court to vacate an order granted by Judge John P. Doyle pursuant to Code of Civil Procedure §473(b), and to issue a new order denying relief.


The attorney-vs.-attorney action was brought by Westwood family law attorney Douglas A. Bagby against Pasadena lawyer Joseph. D. Davis, who represented Bagby in a personal injury action, garnering a judgment in excess of $5 million. Their dispute concerns attorney fees.


Davis Writes Letter


Bagby brought suit on May 26, 2017, and the summons and complaint were served on Davis on June 1 of that year. Rather than filing an answer or otherwise responding within 30 days, Davis on July 12 wrote a letter to Bagby saying he was going to petition to compel arbitration, as required by the contingency fee agreement.


A case management conference (“CMC”) was scheduled for Aug. 30. Davis filed a case management statement on Aug. 16, indicating he would file a petition to compel arbitration unless the trial judge ordered the case into arbitration at the conference.


Meanwhile, Bagby, on Aug. 24, advised Davis that unless an answer were filed by Aug. 28, he would seek entry of default. No answer was filed; default was sought Aug. 29, 2017.


Case Management Conference


The fact of the entry was not known when the CMC was held the following day. Doyle queried why a petition to compel arbitration had not been filed, and Davis expressed the hope the Doyle would simply proceed to order it, to which the jurist responded:


“No judge in history has ever just ordered arbitration.”


In subsequent proceedings, Doyle granted a petition to compel arbitration and relieved Davis from default; Bagby obtained an alternative writ from the Court of Appeal; Doyle scrapped his order that the case go to arbitration but confirmed the order granting relief from default.


There was no basis for granting that relief, Willhite said, because Davis had failed in his effort to show “mistake” or “excusable neglect,” bases under §473(b) for granting relief.


He cited a 2009 opinion by this district’s Div. Two saying that relief is precluded where a mistake “is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.”


 Willhite said:

“Davis had the burden to show he exercised ordinary care under the circumstances to avoid entry of his default….He did not.”


Neglect Not Excusable


 The “neglect,” he declared, was not “excusable,” explaining:

“Here, Davis’s course of conduct was well below the standard of professional competence….He failed to file an answer to the complaint after Bagby announced his intention to seek Davis’ default unless he answered the complaint by August 28….


“As one trained in the law, Davis is charged with knowledge both of the limits of his own professional competence as an attorney and the means to enlarge his understanding. His inexcusable negligence as an attorney must be imputed to him as a client.”


‘Unreasonably Uninformed’


Willhite went on to say:

“Davis, a seasoned litigator who, by his own account, has been practicing law in California for many decades, does not dispute that he was properly served with the summons and complaint on June 1, 2017. The summons informed him that he had 30 days to respond, or risk an adverse judgment….Instead, Davis attributes his failure to answer to his inexperience dealing with this particular issue coupled with a hope or belief that the court would simply order the parties at the CMC into arbitration, despite Bagby’s assurance that he intended to seek Davis’ default. At best, Davis was, despite his experience, unreasonably uninformed….Davis is a seasoned litigator. Yet, his only response to the complaint was the July 12 letter he sent to Bagby. To the extent Davis believed that letter was a sufficient substitute for filing a proper response to the complaint, his actions do not constitute excusable neglect.”

The case is Bagby v. Superior Court, B287188.


Bagby represented himself in the writ proceeding, joined by Kenneth E. Chyten of Oxnard. Davis also acted in pro per, joined by Burbank lawyer Charlotte E. Costan.