Lasalle v. Vogel, 36 Cal. App. 5th 127

Vogel, an attorney, was sued for legal malpractice after her client Lasalle was defaulted in a dissolution proceeding; Vogel was served March 3, 2016.
On day 36, Lasalle's counsel sent an email and mailed a letter warning Vogel that a responsive pleading was overdue and demanded a response by the next day; no effective response was received.
Lasalle's counsel requested entry of default April 11; default was entered before Vogel's request for extension arrived; Vogel retained new counsel and moved to set aside the default under Code Civ. Proc. § 473(b).
Trial court denied the set-aside motion, taking judicial notice of Vogel's unrelated prior disciplinary history; a default judgment for $1,000,000 followed.
The Court of Appeal reversed, concluding the trial court abused its discretion because the default was obtained by unreliable warning (email + mailed letter with an unreasonable 24‑hour deadline), there was little prejudice to plaintiff from vacatur, Vogel offered an excusable explanation, and some damages (emotional distress) were legally improper.

Issue	Plaintiff's Argument (Lasalle)	Defendant's Argument (Vogel)	Held
Whether the trial court abused discretion in denying § 473(b) motion to set aside default	Warning was ethically sufficient; failure to answer was Vogel's fault and relief should be denied	Warning was inadequate (email unreliable, mailed short‑notice); excusable neglect and meritorious defense justify relief	Reversed: abuse of discretion; vacatur should have been granted
Whether counsel had an obligation to give reasonable written notice before seeking default	No legal obligation beyond ethics; Bellm supports that warning is ethical, not legal	Statutory policy § 583.130 requires cooperation and reinforces duty to give reasonable warning	Court treats warning as tied to statutory policy favoring cooperation; stealth defaults contrary to § 583.130
Whether prior disciplinary history could justify denial of relief	Prior discipline shows pattern of poor communication and justifies denial	Prior discipline is improper character evidence for this discretionary relief decision	Trial court erred to rely on prior discipline; such history is an improper basis to deny § 473(b) relief
Whether plaintiff would be prejudiced by setting aside the default	Plaintiff would be prejudiced by delay and expense of further litigation	Prejudice is minimal given short time between default and motion; some awarded damages were legally improper	Little prejudice shown; vacatur appropriate and some damages (emotional distress) were legally unavailable

Rappleyea v. Campbell, 8 Cal.4th 975 (section 473 standard; orders denying relief scrutinized carefully)
Bellm v. Bellia, 150 Cal.App.3d 1036 (ethical duty to warn before taking default; historically treated as ethical, not legal, obligation)
Fasuyi v. Permatex, Inc., 167 Cal.App.4th 681 (attorney ethically obliged to warn and courts condemn racing opposing counsel to entry of default)
Smith v. Los Angeles Bookbinders Union, 133 Cal.App.2d 486 (quietly taking default without counsel's knowledge is uncommendable and grounds to vacate)
Elston v. City of Turlock, 38 Cal.3d 227 (policy favoring disposition on the merits over procedural defaults)
Viner v. Sweet, 30 Cal.4th 1232 (elements required to prove legal malpractice; relevance to complexity of malpractice case)
Robinson v. Varela, 67 Cal.App.3d 611 (short‑notice defaults and other pressures can make failure to answer excusable)