DEFENDANT’S MOTION TO VACATE ORDER DIRECTING SALE BY PARTITION
TYRE v TYRE
DEFENDANT’S MOTION TO VACATE ORDER DIRECTING SALE BY PARTITION
This is a dispute seeking partition of property (“Mobile Home”) brought by Ethan Tyre (“Plaintiff”) against Brianna Tyre (“Defendant.”) Both parties represent themselves pro se. Now before the Court is Defendant’s Motion to Vacate the Court’s Order Directing Partition by sale of the Mobile Home.
I.
Background
Plaintiff filed his Complaint for Partition on July 24, 2025. Defendant denied the allegations in her Answer. On April 24, 2026, the Court granted Plaintiff’s motion for partition by sale of the mobile home. In that Order, the Court appointed Michael Wright as referee and set a CMC for October 14, 2026.
Defendant moves to vacate the Court’s April 24, 2026, Order on the grounds that she was not provided notice of the hearing on Plaintiff’s motion until the day after the hearing. She asserts that her inability to present her side of the case at that hearing prejudiced her, violated her rights, and the Court must vacate the Order in order to allow matters to proceed on their merits.
II. Legal Standard and Discussion
“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...” (Code Civ. Proc. § 473(b).) A moving party need only establish “mistake, inadvertence, surprise, or excusable neglect” by a preponderance of the evidence. (Luz v. Lopes (1960) 55 Cal.2d 54, 62.)
Defendant has failed to adhere to the procedural requirements delineated in Code of Civil Procedure section 473, subdivision (b), which necessitates the denial of this motion. Code of Civil Procedure section 473, subdivision (b) explicitly states, “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[.]” Given that Plaintiff has not included a copy of any opposition to the original motion with this motion, the Court is unable to grant the motion based on this provision.
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Additionally, the Court has on file a Proof of Service signed under penalty of perjury reflecting service by mail of the original motion was effected on defendant on April 2, 2026, at the post office box reflected as correct on all of defendant’s filed pleadings. No evidence has been presented to the Court that the original motion was not delivered to this post office box, therefore the presumption of valid service has not been rebutted. Accordingly, Defendant’s motion to vacate is DENIED.
The clerk shall provide notice of this ruling to the parties forthwith. Plaintiff to submit a formal Order and Judgment complying with Rule 3.1312 in conformity with this Ruling.