Request for Order to set aside default; Request for Order regarding home title and mortgage
LAW & MOTION TENTATIVE RULINGS DEPARTMENT 5 May 21, 2026 8:30 AM/1:30 PM
17. ANGELA SCHULER V. MARTIN SCHULER 23FL0273
Respondent filed a Request for Order (RFO), on January 29, 2026, seeking an order setting aside the default entered on August 1, 2024. Proof of Service shows Petitioner was mail served on January 29, 2026.
Petitioner has not filed a Responsive Declaration.
Petitioner filed a RFO on March 3, 2026, requesting an order to have Petitioner’s name removed from Respondent’s home title and mortgage. Respondent was served on March 13, 2026.
Petitioner filed a Request to Reschedule on March 11, 2026. The court granted the request on March 12, 2026, and the hearings on both RFO was rescheduled for May 21, 2026, at 1:30 PM in Department 5.
Respondent has not filed a Responsive Declaration to Petitioner’s RFO.
“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.” Cal. Civ. Pro. § 473(b). Family Code section 2122 also vests the court with the authority to set aside a judgment in matters of actual fraud or perjury. Fam. Code § 2122. In either case, the burden is on the moving party to establish grounds for relief.
Austin v. L.A. Unified School Dist., 244 Cal. App. 4th 918 (2016); See also Fam. Code § 2121 (“Before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.”) The moving party is tasked with not only establishing that grounds for relief exist but also establishing that the error was excusable on the part of the moving party. Austin at 929; See also Huh v.
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In addition to establishing grounds for relief, the moving party must make its motion within the legally specified time frames. In matters of actual fraud or perjury, the motion shall be brought within one year of the date the moving party either discovered or should have discovered the fraud or perjury; and in instances of mental incapacity, the motion is to be brought within two years. Fam. Code § 2122 (a), (b) & (d).
In the matter at hand, Respondent fails to meet his burden of establishing grounds for relief or set aside. The court finds Respondent has failed to bring the action within the statutory time frame. The court finds Respondent was aware of the divorce proceedings
LAW & MOTION TENTATIVE RULINGS DEPARTMENT 5 May 21, 2026 8:30 AM/1:30 PM
and the default was entered on August 1, 2024. Proof of Service shows Respondent was served with the notice of default on August 2, 2024. As such, Respondent’s request is denied.
Turning next to Petitioner’s request, the court finds Respondent has not filed a Responsive Declaration to Request for Order, therefore, the court deems his failure to do so as an admission that Petitioner’s moving papers have merit. See El Dorado County, Local Rule 7.10.02(C). The court grants Petitioner’s request. Respondent is ordered to refinance the home located at 5287 Loch Leven Dr. Pollock Pines CA 95762, for the purpose of removing Petitioners’ name for the mortgage within 60 days of this order. If Respondent is unable to refinance the residence, he is ordered to place the home for sale on the 61st day with a neutral real estate professional agreed upon by the parties and provide proof of the homes listing to Petitioner’s counsel. The court reserves on Petitioner’s request under Family Code section 271 for sanctions.
Petitioner is directed to prepare the Findings and Orders After Hearing (FOAH); however, this order is effective immediately upon the court’s adoption of the tentative ruling and is not conditioned on the preparation of the FOAH.
TENTATIVE RULING #17: THE COURT FINDS RESPONDENT HAS FAILED TO MEET HIS BURDEN OF ESTABLISHING GROUNDS FOR RELIEF OR SET ASIDE. THE COURT FINDS RESPONDENT HAS FAILED TO BRING THE ACTION WITHIN THE STATUTORY TIME FRAME. THE COURT FINDS RESPONDENT WAS AWARE OF THE DIVORCE PROCEEDINGS AND THE DEFAULT WAS ENTERED ON AUGUST 1, 2024. PROOF OF SERVICE SHOWS RESPONDENT WAS SERVED WITH THE NOTICE OF DEFAULT ON AUGUST 2, 2024. AS SUCH, RESPONDENT’S REQUEST IS DENIED.
THE COURT GRANTS PETITIONER’S REQUEST. RESPONDENT IS ORDERED TO REFINANCE THE HOME LOCATED AT 5287 LOCH LEVEN DR. POLLOCK PINES CA 95762, FOR THE PURPOSE OF REMOVING PETITIONERS’ NAME FOR THE MORTGAGE WITHIN 60 DAYS OF THIS ORDER. IF RESPONDENT IS UNABLE TO REFINANCE THE RESIDENCE, HE IS ORDERED TO PLACE THE HOME FOR SALE ON THE 61ST DAY WITH A NEUTRAL REAL ESTATE PROFESSIONAL AGREED UPON BY THE PARTIES AND PROVIDE PROOF OF THE HOMES LISTING TO PETITIONER’S COUNSEL. THE COURT RESERVES ON PETITIONER’S REQUEST UNDER FAMILY CODE SECTION 271 FOR SANCTIONS.
PETITIONER IS DIRECTED TO PREPARE THE FINDINGS AND ORDERS AFTER HEARING (FOAH); HOWEVER, THIS ORDER IS EFFECTIVE IMMEDIATELY UPON THE
LAW & MOTION TENTATIVE RULINGS DEPARTMENT 5 May 21, 2026 8:30 AM/1:30 PM
COURT’S ADOPTION OF THE TENTATIVE RULING AND IS NOT CONDITIONED ON THE PREPARATION OF THE FOAH.
NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY PHONE CALL TO THE COURT AT (530) 621-6725 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 PHONE CALL OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07.