A client brought me a very strong defamation case, but like so many defamation clients, she wasn’t really interested in money, she just wanted the defendant to remove her defamatory posts.
I sent the defendant a cease and desist letter, explaining that her posts could not be defended, and telling her that she could avoid legal action just by taking down the posts. I have this really good (in my never to be humble opinion) letter that explains how life is made of decisions, and how the wrong decision can send a person down a horrible and completely unnecessary path. Sometimes, if I’m in the mood, I even include a link to one of my online articles, which contains a YouTube video of the trailer from the movie Taken. You probably recall the speech given by Liam Neeson to the kidnapper on the phone:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my client go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will recover significant damages from you.
OK, I modified it slightly to fit the situation.
So I sent my killer letter to the defendant, and heard nothing.
I served the defendant with the complaint, and heard nothing.
I separately served the Defendant with a Statement of Damages, and heard nothing.
And so it went with the request for entry of default, the default prove-up packet, and the proposed judgment.
In all, I served the Defendant nine different times with court documents along the way, and she never responded.
Never, that is, until I served her with the $3,000,000 judgment, and a court order to take down the defamatory posts. Then I received a call from her attorney, asking if we would agree to vacate the judgment, and stating that they would bring a motion to vacate if we did not do so. He then did the usual posturing about how he didn’t really care whether or not we agreed to vacate, because no court would deny such a motion, especially given the merits of his client’s defenses.
I have advised my clients to vacate many defaults over the years, because sometimes you enter a default just to get the defendant’s attention. In a case where a defendant immediately moves to vacate the default, the court will almost always grant the relief if there are any extenuating circumstances, so it is pointless to force opposing counsel to bring the motion, and a waste of the client’s money to fight it.
But this wasn’t that type of case. Defendant was well aware of what was going on, and was merely choosing to ignore the situation. We had to go through the time and expense of the prove-up process. I didn’t see any reason to reward that behavior.
My client agreed that we should not voluntarily vacate the judgment, but surprisingly she instructed me to communicate an amazing offer to opposing counsel. She would agree to accept a tiny, tiny, tiny portion of the judgment as payment in full, if Defendant would post a retraction. Apparently, Defendant and her counsel were so confident they would win on the motion to vacate that they never even responded to this generous offer.
I knew better.
I certainly won’t say that there was no chance that the motion to vacate would be granted, but there is a procedural twist that 90% of attorneys miss on certain default situations. Here in California, a defaulted defendant has six months to file a motion to vacate entry of default. After six months, the defendant can still seek equitable relief, but the standard is much higher. If the defendant knew of the complaint and just blew it off, many judges won’t grant equitable relief.
In this case, opposing counsel acted very quickly after entry of judgment to bring the motion to vacate, and most attorneys seem to think that is sufficient, thinking the clock begins ticking as of the date of the judgment.
Au contraire mon frère. While it is true that the motion to vacate the default judgment can be brought within six months of the judgment, there is case authority stating that it is a meaningless gesture to vacate the judgment if it leaves the initial default in place. Wouldn’t you know it, in our case, almost like it had been planned, six months had passed between entry of default and entry of default judgment. When defense counsel brought the motion to vacate, Defendant was well within the six months for the default judgment, but she was outside the six months for the initial default.
The Court did a very detailed analysis of all the reasons Defendant had offered for failing to answer the complaint, but found them all to be insufficient. Defendant acknowledged that she had been served (she pretty much had to since the process server had taken a video of service), so the court found that since she was outside the six months, she had to show that equity dictated vacating the default, and that there was no such showing. As to the judgment, the court followed the law and concluded that even if Defendant’s excuses were sufficient under the more lenient, within six months standard, it would be pointless to vacate the judgment while leaving the default in place.
Defendant now has a three million dollar judgment against her that could have been avoided by simply taking down the clearly defamatory posts.
Lessons from today’s war story.
As stated, defense counsel never even responded to our offer, but in the heat of the battle he made a comment to me that lead me to believe the offer had not been taken seriously. I suppose, therefore, that the first lesson is to treat every offer very seriously. I’m sure Defendant is now very upset that she did not take the offer, and if her attorney failed to explain the long odds of getting the judgment vacated, there will be some malpractice exposure. I have seen far too many attorneys who get so wrapped up in the law that they oversell the odds of victory to their client. When defense counsel first called to ask if we would vacate the default, his attitude was that it was crystal clear that his client would prevail on the merits. I obviously didn’t agree, or I would not have taken the case, but the more salient point is that the merits were of little import at that point. A motion to vacate turns on why the defendant failed to answer, not on the merits of the defense that will be presented.
And lesson two is that what I do have are a very particular set of skills; skills I have acquired over a very long career . . .