Brochtrup

Defendants appeal from a summary judgment that was primarily based upon matters deemed admitted arising from an improper response to plaintiff’s request for admissions. Defendants claim that the trial court abused its discretion in denying their motion for relief from default in responding to the request for admissions. For the reasons that follow, we shall reverse with directions.

Statement of Facts

On October 2,1981, plaintiff filed a verified complaint against defendants for an accounting, breach of fiduciary duty, constructive trust, breach of contract, quantum meruit, money had and received, and fraud and deceit. On November 6, 1981, the defendants filed a verified answer to the complaint.

On February 3,1984, plaintiff filed his first motion for summary judgment based on defendants’ failure to respond to plaintiff’s first set of requests for admissions. This motion was successfully opposed by defendants’ attorney on the grounds that the warning required by Code of Civil Procedure section 2033 had not been appropriately placed with the request for admissions.

On September 5, 1984, plaintiff propounded a second set of requests for admissions to defendants. On…