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Fasuyi v. Permatex (Cal. Ct. App. - Oct. 15, 2008)

By Shaun Martin

Nothing at all from either the Ninth Circuit or the California appellate courts today. What's a person supposed to do for recreational reading?

Fortunately, late yesterday, the California Court of Appeal came out with this opinion. Which is one that you will definitely use if you ever want to get out of a default judgment. At the end, Justice Richman says that the opinion doesn't stand for the proposition that every "defendant who has properly involved the insurer and nevertheless ends up in default is always entitled to relief. Nor do we hold that a plaintiff?s attorney must warn a defendant?s attorney before taking a default." But the perceived need to include those two sentences is fairly instructive. It's a very pro-warning, anti-default opinion. Not wrongly so, IMHO: I always prefer adjudication on the merits. But, still, it's a very powerful piece.

There are also a couple of random things in here that make the opinion especially worth reading, including but by no means limited to its style as well as the relative reverence accorded to the views of the Rutter Group. I also think it's interesting that the opinion easily equates professionalism and courtesy with ethics (e.g., that an unprofessional or discourteous act, like not warning counsel that you may take their default, is necessarily an unethical act as well). I'm not entirely persuaded that's true: It depends on what we mean by "unethical," and that word may perhaps have different connotations for different people.

So there's a lot in here to feast upon. As well as to use if your client ever pulls a "whoopsie" and incurs a default judgment against it.

Full post as published by California Appellate Report on October 16, 2008 (boomark / email).