Metropolitan News-Enterprise


Thursday, October 16, 2008


Page 3


Court Holds Denial of Motion to Set Aside Default Abuse of Discretion

Justices Fault Plaintiff’s Lawyer for Not Warning Defendant


By a MetNews Staff Writer


An Alameda Superior Court judge abused his discretion by not setting aside a default and default judgment, where plaintiff’s counsel did not warn the defendant he intended to seek the default and the defense moved for relief 15 days after it learned of the judgment, the First District Court of Appeal ruled yesterday.

Div. Two reversed Judge Winton McKibben’s order denying Permatex, Inc.’s motion to set aside the $236,500 in favor of Omotayo Fasuyi, who claims he was injured when a brake-cleaning product manufactured by the defendant dripped on him. Among other damages, he alleged in his complaint, he was subjected to ridicule because the substance turned his skin white.

Fasuyi is African American.

In moving to set aside the judgment, Permatex presented evidence that it had not been served with a statement of damages, as required in personal injury cases; that it had forwarded the summons and complaint to its insurance broker promptly after being served; that the broker forwarded the documentation to the insurer; and that upon receiving notice of the judgment, it had asked plaintiff’s counsel to stipulate that the default and judgment be set aside but counsel refused.

McKibben denied the motion without comment following a hearing that was not reported.

But Justice James Richman, writing for the Court of Appeal, noting the lack of an explanation for denying the motion and of a hearing transcript, said the order could not be affirmed on the basis of deference alone. The usual rule that the absence of a transcript precludes a finding of abuse of discretion does not apply in this circumstance, Richman said in a footnote.

The motion should have been granted, Richman elaborated, because “all legal principles favored Permatex.”

When the defendant forwarded the paperwork to the insurance broker, and the broker forwarded it to the insurer and received confirmation that the matter would be tended to, the defendant was entitled to assume that the complaint would be responded to in a timely manner, the justice said.

He wrote:

“That is the record here.  No lack of cooperation from the defense side.  Indeed, the converse.  No deception.  No duplicitousness.  No stonewalling.  No evasion. And no disregard of any warning.  In fact, no warning.”

Richman rejected the argument that the plaintiff was prejudiced by delay.

There would have been no delay had his lawyer “done what he should have” and notified the defendant that it had missed the deadline, the justice said. “Beyond that,” Richman wrote, Fasuyi waited almost two years to file his lawsuit, and took four months to serve it, beyond the time allowed” by court rules and the case management order.

The case is Fasuyi v. Permatex, Inc., A117760.


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