Tentative Ruling: Robert Ottinger v. Paul P. Weishaar, et al
Case Number
25CV04836
Case Type
Hearing Date / Time
Wed, 03/04/2026 - 10:00
Nature of Proceedings
(1) Motion to Set Aside Default; (2) Default Prove-Up
Tentative Ruling
For Plaintiff Robert Ottinger: Self-represented
For Defendants Paul P. Weishaar and PPW Motorcars, LLC: Andrew Wyatt
RULING
(1) For the reasons stated herein, the motion of Defendants to set aside default is granted. The defaults of Defendants Paul P. Weishaar and PPW Motorcars, LLC, entered on December 5, 2025, are each vacated. Any response to Plaintiff’s complaint or challenge to service must be filed and served on or before April 3, 2026. No request for entry of default, if appropriate, as against any Defendant may be filed by Plaintiff prior to April 3, 2026.
(2) For the reasons stated herein, the default prove-up is ordered off-calendar.
Background
The complaint filed on August 5, 2025, by Plaintiff Robert Ottinger (Ottinger or Plaintiff) alleges five causes of action against Defendants Paul P. Weishaar (Weishaar) and PPW Motorcars, LLC, (PPW) (collectively, Defendants): (1) fraud; (2) conversion; (3) quantum meruit; (4) promissory fraud; and (5) negligent misrepresentation. Briefly, Plaintiff alleges in the complaint that Defendants deceived or defrauded Plaintiff into purchasing a 1972 Mercedes Benz SL 350 on September 3, 2024, by advertising, and representing to Plaintiff, that the vehicle was in operable or excellent condition when in fact, the vehicle was severely damaged. (Compl., ¶¶ 1-2 & 10-27.)
On December 5, the defaults of Defendants were entered as requested by Plaintiff.
On December 29, Defendants filed a motion for an order setting aside the defaults entered on December 5 (the motion to vacate). The motion to vacate was calendared for hearing on March 4, 2026.
In support of the motion to vacate, Defendants submit a declaration of attorney Andrew M. Wyatt (attorney Wyatt), who asserts that they are “specially appearing” for Defendants. (Wyatt Dec., ¶ 1.)
Attorney Wyatt states that on December 1, they informed Plaintiff of a scheduling conflict that prevented attorney Wyatt from appearing at a case management conference scheduled in this case on December 3. (Wyatt Dec., ¶¶ 1-3 & attachment 1 [Dec. 1 email from attorney Wyatt to Plaintiff].) In that communication, attorney Wyatt requested that Plaintiff agree to a continuance of the December 3 case management conference, and notified Plaintiff that Defendants intended to file a motion to quash the summons and complaint. (Ibid. & attachment 1, exhibit A [motion to quash].) Plaintiff responded to attorney Wyatt’s communication, and stated that Plaintiff, who wanted to make the same request, would agree to a request a continuance of the December 3 case management conference. (Wyatt Dec., ¶ 4 & attachment 1.)
On December 2, attorney Wyatt’s paralegal emailed Plaintiff to confirm that the parties had agreed they would request a continuance of the December 3 case management conference, and that Plaintiff would communicate this request to the Court. (Wyatt Dec., ¶ 4 & attachment 1.)
Attorney Wyatt further states that they later discovered that Plaintiff did not request a continuance of the December 3 case management conference, and instead filed requests to enter the defaults of Defendants, which were entered on December 5. (Wyatt Dec., ¶ 6.) Attorney Wyatt asserts that they were surprised by this discovery, because Plaintiff had agreed to request a continuance of the December 3 case management conference. (Wyatt Dec., ¶ 7.)
Plaintiff opposes the motion to vacate. In support of that opposition, Plaintiff submits a declaration of Katherine Roussos (attorney Roussos), who is an associate with Plaintiff’s law firm. (Roussos Dec., ¶ 1.) Attorney Roussos states that service was completed on Defendants by certified mail on October 22, and that no response to the complaint had been filed or served as of November 22. (Roussos Dec., ¶¶ 2 & 4.)
Attorney Roussos further states that, prior to the December 3 case management conference, Plaintiff attempted to contact attorney Wyatt regarding this case. (Roussos Dec., ¶ 5.) Attorney Roussos does not dispute that they received a response from attorney Wyatt on December 1, at which time the parties discussed and agreed to request a continuance of the December 3 case management conference because both Plaintiff and attorney Wyatt could not attend that conference. (Ibid.)
Attorney Roussos appeared on behalf of Plaintiff at the December 3 case management conference, and stated to the Court that Plaintiff heard from Defendants and that the parties requested a continuance of that conference. (Roussos Dec., ¶ 6.) According to attorney Roussos, the Court “stated that no continuance would be granted and ordered the request for default to be filed no later than December 5, 2025, with prove up to be scheduled on February 4, 2026.” (Ibid.)
On January 28, 2026, Plaintiff filed a notice of a motion for an order granting default judgment (the default prove-up), which is supported by Plaintiff’s declaration. Defendants oppose the default prove-up, which was calendared for hearing on February 4.
On February 4, the Court entered a minute order adopting its tentative ruling on the default prove-up as follows: “The default prove-up will be continued to March 4 so that either the default will be set aside or the prove-up can go forward.”
Analysis
Code of Civil Procedure section 473, subdivision (b), “provides for both discretionary and mandatory relief. (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The statute provides: “The Court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s 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.” (Code Civ. Proc., § 473, subd. (b).)
The statute further provides: “the Court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the Court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)
Code of Civil Procedure section 473 “is remedial in its nature and is to be liberally constructed. [Citation.] The policy of the law is to have every litigated cause tried on its merits; and it looks with disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Reed v. Williamson (1960) 185 Cal.App.2d 244, 248.) “When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.)
The motion to vacate was made within one month from the date the defaults of Defendants were entered in this case. That motion is also accompanied by a motion to quash service of the summons and complaint that Defendants propose to file in this action. For these reasons, the Court finds that the motion to vacate is procedurally appropriate and timely.
In addition, the available information and evidence, including information presented in the declaration of attorney Wyatt under penalty of perjury, is also sufficient to attest to Plaintiff’s and attorney Wyatt’s surprise in regard to the parties’ agreement to request a continuance of the December 3 case management conference, and what attorney Wyatt effectively asserts was an unexpected filing of requests to enter the defaults of Defendants after that agreement was made, or two days after the December 3 case management conference. Plaintiff’s opposition to the motion to vacate presents no reasoned factual or legal argument showing why there is prejudice to Plaintiff.
Under the totality of the circumstances present here, and for all reasons further discussed above, the Court will grant the motion to vacate, and order that the defaults of Defendants entered in this case on December 5, 2025, be vacated.
Further, as the Court’s ruling herein moots the default prove-up, the Court will order that default prove-up off calendar.