By a MetNews Staff Writer
The Orange Superior Court’s controversial and frequently reversed judge, Derek W. Hunt, was countermanded yesterday in an opinion of the Fourth District Court of Appeal’s Div. Three which expressed astonishment that he denied a motion to grant relief from a default where the defendant’s lawyer was not notified that it was coming.
Hunt was publicly admonished by the Commission on Judicial Performance on July 5 for having “engaged in misconduct in four civil cases,” having “denied the parties a full right to be heard before making orders” in three cases and having “made remarks reflecting poor demeanor and engaged in conduct that gave an appearance of bias” in another matter.
Justice Maurice Sanchez authored the opinion. It reverses Hunt’s order denying a motion by Chico’s FAS, Inc. (“CFI”) to set aside default and default judgment against it in an action by Shapell Socal Rental Properties, LLC and, “[i]n the interest of justice,” requires that the case be assigned, on remand, to a judge other than Hunt.
Sanchez cited his division’s 2009 decision in LaSalle v. Vogel. There, Acting Presiding Justice William W. Bedsworth wrote that Code of Civil Procedure §583.130’s declaration that “[i]It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition” bars seeking a default without warning.
Bedsworth recited that “it is now well acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default.”
In yesterday’s decision, Sanchez observed:
“This case demonstrates the unfortunate reality that some members of the legal profession have not demonstrated the yearned-for professionalism and that the hopes expressed in LaSalle remain a dream.”
The plaintiff’s lawyer, Gregg A. Martin of the Century City firm of Hamburg, Karic & Martin, LLP, did not provide a warning to Shapell’s lawyer, Angela V. Sayre of Foley & Mansfield, LLP, before seeking a default. When CFI moved for relief from default, Sanchez said, “CFI called out Shapell on its counsel’s ethical and statutory violation, and “Shapell’s response was to call CFI’s argument ‘specious’—a nose-thumbing at LaSalle.”
“The trial court inexplicably denied CFI’s motion and failed to address the breach of ethical and statutory duties by Shapell’s counsel. We cannot abide that result. Several factors applicable to motions for relief from default, along with counsel’s breach of ethics and of section 583.130, support our decision to reverse the order denying CFI’s motion to set aside the default and default judgment.”
Sanchez went on to say:
“CFFs argument was not specious: It is the law. Shapell’s trial counsel had an ethical and statutory duty to advise CFFs counsel of the intent to seek entry of default and default judgment….Counsel breached that duty.”
In finding that Hunt abused his discretion in denying relief, the justice noted that his comment that CFI concern over CFI playing “fast and loose” in its approach to the litigation “was entirely misdirected” and said that Hunt “completely ignored the ethical and statutory violation committed by Shapell’s counsel.”
The case is Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc., G060411.
Sayre and Margaret I. Johnson of Foley & Mansfield represented CFI and Martin and Ann S. Lee of the Hamburg firm joined with Joseph S. Klapach of Klapach & Klapach in acting for CFI.
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