Relief from Default / Order of Examination
March 27, 2026 Dept. 9 Tentative Rulings
2. 23CV1958 ROTH vs. GT TRUCK REPAIR Relief from Default / Order of Examination
This is a motion requesting the Court to grant defendant relief from default pursuant to Code of Civil Procedure § 473(b). Defendant further argues that venue is improper in El Dorado County.
The Complaint, filed on November 13, 2023, arises from a vehicle repair to Plaintiff’s vehicle that was performed by Defendant’s business in Applegate, California, in Placer County. The Complaint was filed on Judicial Council Form JUD-100 and does not include attachments describing the facts underlying the claimed causes of action. The Summons and Complaint was served in May, 2024.
Although Defendant did not file an Answer to the Complaint, Defendant appeared at Case Management Conferences held on July 2, 2024, October 29, 2024, and April 15, 2025. After Defendant did not appear at the Case Management Conference scheduled for August 5, 2025, Plaintiff submitted an application for a default judgment, which was entered by the Court Clerk on August 20, 2025.
Venue
Code of Civil Procedure § 585.5(a) provides:
Every application to enter default under subdivision (a) of Section 585 shall include, or be accompanied by, an affidavit stating facts showing that the action is or is not subject to Section 1812.10 . . . of the Civil Code or subdivision (b) of Section 395.
The application for default form included a declaration by Plaintiff that the contract at issue came within both Sections 1812.10 and 395.
Civil Code § 1812.10 governs actions on a contract or installment account under Civil Code Title 2, Chapter 1 (“Retail Installment Sales”), including “services . . . furnished in connection with the repair of motor vehicles. Code of Civil Procedure § 395 applies to lawsuits arising from contracts for the provision of goods and services intended primarily or personal, household or family use, other than those contracts that come within the scope of Section 1812.10.
Regardless of which of these statutes would apply to this case, both statutes require that litigation related to contracts within their scope be filed in an appropriate venue, including “where the buyer resides at the commencement of the action.” Plaintiff’s address on the Complaint indicates that he resided in El Dorado County at the at the commencement of the action. Further, repairs on the vehicle were initiated within El Dorado County before the vehicle
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
March 27, 2026 Dept. 9 Tentative Rulings
was relocated to Defendant’s shop in Placer County. Accordingly, neither Code of Civil Procedure § 1812.10 or 395 require this matter to be heard in Placer County.
Relief from Default
Code of Civil Procedure § 473(b) provides:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.
Defendant never filed an Answer in this matter, but attaches a proposed Answer to the Defendant’s Declaration filed in support of Defendant’s motion. The motion for relief from default was filed on February 19, 2026, just within the six-month deadline.
However, it is not necessary to rely on “mistake, inadvertence, surprise, or excusable neglect” to relieve Defendant from the entry of default under Section 473(b). The Court may “correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order” pursuant to Section 473(d).
The Complaint was not sufficient to support entry of default. Code of Civil Procedure § 425.10 requires a Complaint to contain “a statement of facts constituting the cause of action, in ordinary and concise language.” California Rules of Court, Rule 3.1800 (“Default Judgments”) specifies that a request for default judgment based on declarations must include: “a brief summary of the case identifying the parties and the nature of plaintiff's claim; . . . [and] Declarations or other admissible evidence in support of the judgment requested; . . .” In this case, the Complaint contained neither of these required elements.
Where the Judicial Council form indicated that attachments were required to detail each listed cause of action, there were no attachments or allegations of facts or even recitation of the elements of the asserted causes of action in the Complaint. The only attachment was a repair receipt for the vehicle. The amount of damages was listed as $15,800 “according to proof”, but the attached repair bill was for $6,796.73. The Complaint is insufficient as a matter of law.
[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default (Waite v. Southern Pacific Co. (1923) 192 Cal. 467, 470-471 [221 P. 204]; Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099 [199 Cal.Rptr. 583] [in the context of deemed
March 27, 2026 Dept. 9 Tentative Rulings
admissions § 473 should be applied liberally “so cases can be tried on the merits”]; Flores v. Board of Supervisors, supra, 13 Cal.App.3d at p. 483.)
Elston v. City of Turlock, 38 Cal. 3d 227, 233, 695 P.2d 713 (1985). TENTATIVE RULING #2: DEFENDANT’S MOTION IS GRANTED. THE ORDER FOR APPEARANCE AND EXAMINATION IS VACATED. NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999).
NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING. LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M.
LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
6