Judge: Lee W. Tsao, Case: VC066122, Date: 2024-04-02 Tentative Ruling

Case Number: VC066122    Hearing Date: April 2, 2024    Dept: C

Alberto Muratalla, et al vs. Jimmy Muratalla

Case No.: VC066122

Hearing Date: April 2, 2024 @ 9:30 AM

#6

Tentative Ruling

Cross-Complainant Maria Gonzalez Navarro’s Motion to Set Aside Dismissal is GRANTED.

Cross-Complainant to give notice.

Background

On or about February 17, 2017, Plaintiff ALBERTO MURATALLA (“Plaintiff”) brought the instant action against Defendant JIMMY MURATALLA, who was deceased on August 6, 2018, for one cause of action for partition and sale of the subject property located at 9027 Hagel Street, Bellflower, Los Angeles County, California (“Property”). The Estate of Jimmy Muratalla (“Defendant”) disputes Plaintiff’s allegations and claims full ownership of the subject Property.

Defendant/Cross-Complainant Maria Gonzalez was named in the instant case on November 9, 2021, as a named defendant, and filed her Answer on April 29, 2022. On or about February 22, 2023, Defendant/Cross-Complainant was granted leave to file a Cross Complaint against ESTATE OF ALBERTO MURATALLA, an entity of unknown form; MARTIN MURATALLA, as co-Administrator of the Estate of Alberto Muratalla; TERESA SEPULVEDA, as co-Administrator of the Estate of Alberto Muratalla, and against ESTATE OF JIMMY MURATALLA; MANNY MURATALLA, as Administrator of the Estate of Jimmy Muratalla, as the Real Parties in Interest. The Cross-Complaint was filed on March 23, 2023.

On or about June 16, 2023, the Court called to hearing the Trial Setting Conference and Order to Show Cause, re: service/answer/responsive pleading/default as to the Cross Defendants on the cross complaint. The former counsel for Defendant/Cross-Complainant, Reyes Valenzuela, Esq. failed to appear. The Court continued the Trial Setting Conference and set an Order to Show Cause, re: Dismissal as to why the Cross-Complaint should not be dismissed for counsel for the cross-complainant’s failure to appear on June 16, 2023, for August 25, 2023.

On or about August 25, 2023, the Court called to hearing the Trial Setting Conference and Order to Show Cause, re: Dismissal as to why the Cross-Complaint should not be dismissed for counsel for the cross-complainant’s failure to appear on June 16, 2023. The former counsel for Defendant/Cross-Complainant, Reyes Valenzuela, Esq. again failed to appear. The Court ordered the cross-complaint filed on March 23, 2023 dismissed without prejudice (“Dismissal”). (Chan Decl., Exhibit C.) Defendant/Cross-Complainant seeks to set aside the Dismissal and to reinstate her Cross Complaint filed on March 23, 2023.

This motion was unopposed as of March 27, 2024.

Legal Standard

“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….” (emphasis added.) (CCP §473(b).)

Discussion

Defendant/Cross-Complainant Maria Gonzalez moves to set aside dismissal of Cross-Complaint that was entered on August 25, 2023.

This motion was filed on January 25, 2024.

The Court finds that since the motion was filed within six months the motion is timely.

At any time, “[t]he court…may, on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP §473(d).)

The Court finds that the previous attorney not attending the default hearings came as a surprise to Cross-Complainant accordingly, the Motion to Set Aside is GRANTED.