Fasuyi v. Permatex, Inc.
California Court of Appeal
84 Cal. Rptr. 3d 351 (2008)
Omotayo Fasuyi (plaintiff) sued Permatex, Inc. (defendant) after brake fluid burned and whitened his skin. Fasuyi's attorney served the complaint through the legal department of Permatex's parent company, ITW, which forwarded it to an insurance carrier expected to respond -- but no response was ever filed. Fasuyi's attorney requested a default without first warning ITW, despite their prior contact, and without including a required statement of damages. The trial court entered default and awarded $236,500 plus costs; only afterward did Fasuyi file an amended proof of service claiming a statement of damages had in fact been served. Permatex moved to set aside the judgment, arguing no valid statement of damages had been served and that its failure to respond was mere inadvertence; the trial court denied the motion.
Whether a default judgment may be set aside when the underlying default resulted from the defendant's mistake, inadvertence, surprise, or excusable neglect.