This case was last updated from Los Angeles County Superior Courts on 01/15/2021 at 18:26:29 (UTC).

XANTI MURALLES VS DAN MIKOLASKO COSNTRUCTION

Case Summary

On 11/28/2016 XANTI MURALLES filed a Contract - Other Contract lawsuit against DAN MIKOLASKO COSNTRUCTION. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are PETER A. HERNANDEZ, DUKES, ROBERT A. and OKI, DAN THOMAS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8891

  • Filing Date:

    11/28/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PETER A. HERNANDEZ

DUKES, ROBERT A.

OKI, DAN THOMAS

 

Party Details

Plaintiffs and Cross Defendants

MURALLES XANTI

MURALLES CARLOS

DAN MIKOLASKO CONSTRUCTION INC.

WILSON DAVID

Defendants and Cross Defendants

DAN MIKOLASKO CONSTRUCTION INC

MIKOLASKO DANIEL

DAN MIKOLASKO CONSTRUCTION INC.

AMERICAN CONTRACTORS INDEMNITY COMPANY

Defendant and Cross Plaintiff

AMERICAN CONTRACTORS INDEMNITY COMPANY

Attorney/Law Firm Details

Plaintiff Attorneys

SMITH ESQ. KATHLYNN E.

SMITH KATHLYNN ELIZABETH

Defendant and Cross Plaintiff Attorneys

WOO ESQ. AMBER N.

GROSSMAN MARC E. LAW OFFICES OF

WRAGLER JOSEPH LAW OFFICES OF

BEMIS GARY A.

 

Court Documents

Notice of Lien

1/12/2021: Notice of Lien

Request for Dismissal

7/17/2019: Request for Dismissal

Objection - OBJECTION EVIDENTIARY OBJECTIONS TO DECLARATION OF DAN MIKOLASKO IN SUPPORT OF OPPOSITION TO PLAINTIFFS' 473(B) MOTION

2/19/2020: Objection - OBJECTION EVIDENTIARY OBJECTIONS TO DECLARATION OF DAN MIKOLASKO IN SUPPORT OF OPPOSITION TO PLAINTIFFS' 473(B) MOTION

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

2/26/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Legacy Document - LEGACY DOCUMENT TYPE: Default Entered

1/25/2017: Legacy Document - LEGACY DOCUMENT TYPE: Default Entered

Motion to Compel - Motion to Compel Responses to Request for Production of Documents and Request for Monetary Sanctions, $1,410.00 Against Deft. Dan Mikolasko Construction, Inc. and Atty of Record, Th

2/24/2017: Motion to Compel - Motion to Compel Responses to Request for Production of Documents and Request for Monetary Sanctions, $1,410.00 Against Deft. Dan Mikolasko Construction, Inc. and Atty of Record, Th

Legacy Document - LEGACY DOCUMENT TYPE: Motion to Compel

4/13/2017: Legacy Document - LEGACY DOCUMENT TYPE: Motion to Compel

Minute Order - Minute order entered: 2017-05-25 00:00:00

5/25/2017: Minute Order - Minute order entered: 2017-05-25 00:00:00

Substitution of Attorney

7/12/2017: Substitution of Attorney

Legacy Document - LEGACY DOCUMENT TYPE: Motion for Leave

7/17/2017: Legacy Document - LEGACY DOCUMENT TYPE: Motion for Leave

Legacy Document - LEGACY DOCUMENT TYPE: Notice

8/15/2017: Legacy Document - LEGACY DOCUMENT TYPE: Notice

Minute Order - Minute order entered: 2017-08-22 00:00:00

8/22/2017: Minute Order - Minute order entered: 2017-08-22 00:00:00

Legacy Document - LEGACY DOCUMENT TYPE: Default Entered

10/10/2017: Legacy Document - LEGACY DOCUMENT TYPE: Default Entered

Legacy Document - LEGACY DOCUMENT TYPE: Notice

10/23/2017: Legacy Document - LEGACY DOCUMENT TYPE: Notice

Writ - Return

2/19/2019: Writ - Return

Declaration - Declaration DECLARATON OF KATHYLNN E. SMTH IN SUPPORT OF PLAINTIFFS CARLO AND XANTI MURALLES' CLOSING BRIEF FOLLOWING THE BIFURCATED TRIAL ON THE ISSUE OF THE COMPLIANCE IWTH THE CONTRAC

3/4/2019: Declaration - Declaration DECLARATON OF KATHYLNN E. SMTH IN SUPPORT OF PLAINTIFFS CARLO AND XANTI MURALLES' CLOSING BRIEF FOLLOWING THE BIFURCATED TRIAL ON THE ISSUE OF THE COMPLIANCE IWTH THE CONTRAC

Brief - Brief DEFENDANT'S CLOSING ARGUMENT

3/4/2019: Brief - Brief DEFENDANT'S CLOSING ARGUMENT

Statement of Decision - STATEMENT OF DECISION CONCERNING THE FIFTH CAUSE OF ACTION

5/20/2019: Statement of Decision - STATEMENT OF DECISION CONCERNING THE FIFTH CAUSE OF ACTION

135 More Documents Available

 

Docket Entries

  • 01/12/2021
  • DocketNotice of Lien; Filed by CARLOS MURALLES (Plaintiff); XANTI MURALLES (Plaintiff)

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  • 05/18/2020
  • Docketat 08:30 AM in Department O, Peter A. Hernandez, Presiding; Non-Jury Trial - Not Held - Vacated by Court

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  • 03/03/2020
  • Docketat 10:30 AM in Department O, Peter A. Hernandez, Presiding; Ruling on Submitted Matter

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  • 03/03/2020
  • DocketMinute Order ( (Ruling on Submitted Matter;)); Filed by Clerk

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  • 03/03/2020
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter;) of 03/03/2020, Court Order); Filed by Clerk

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  • 03/03/2020
  • DocketOrder (Denying Motion To Set Aside July 17, 2019 Voluntary Dismissal And Interlocutory Order On Fifth Cause Of Action); Filed by Clerk

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  • 02/26/2020
  • Docketat 10:51 AM in Department O, Peter A. Hernandez, Presiding; Nunc Pro Tunc Order

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  • 02/26/2020
  • Docketat 08:30 AM in Department O, Peter A. Hernandez, Presiding; Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) - Held - Taken under Submission

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  • 02/26/2020
  • DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473);)); Filed by Clerk

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  • 02/26/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by CARLOS MURALLES (Plaintiff); XANTI MURALLES (Plaintiff)

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255 More Docket Entries
  • 12/14/2016
  • DocketNotice-Case Management Conference; Filed by Attorney for Plaintiff

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  • 12/07/2016
  • DocketRtn of Service of Summons & Compl; Filed by Attorney for Plaintiff

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  • 12/07/2016
  • DocketRtn of Service of Summons & Compl; Filed by CARLOS MURALLES (Plaintiff); XANTI MURALLES (Plaintiff)

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  • 12/07/2016
  • DocketRtn of Service of Summons & Compl; Filed by CARLOS MURALLES (Plaintiff); XANTI MURALLES (Plaintiff)

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  • 12/02/2016
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/02/2016
  • DocketNotice-Case Management Conference; Filed by Clerk

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  • 11/28/2016
  • DocketComplaint; Filed by CARLOS MURALLES (Plaintiff); XANTI MURALLES (Plaintiff)

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  • 11/28/2016
  • DocketCivil Case Cover Sheet; Filed by CARLOS MURALLES (Plaintiff); XANTI MURALLES (Plaintiff)

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  • 11/28/2016
  • DocketComplaint Filed

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  • 11/28/2016
  • DocketSummons (on Complaint)

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Tentative Rulings

Case Number: KC068891    Hearing Date: February 26, 2020    Dept: O

Plaintiffs Xanti and Carlos Muralles’s motion to set aside their voluntary dismissal of the First, Second, Third, Fourth and Fifth Causes of Action with prejudice is DENIED.

Plaintiffs Xanti and Carlos Muralles (“Plaintiffs”) move to set aside to set aside their voluntary dismissal of the First through Fourth, and Sixth Causes of Action with prejudice pursuant to Code of Civil Procedure section 473(b).

ATTORNEY FAULT: 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. (CCP § 473(b).)

The Court is in receipt of declarations from Plaintiffs Xanti and Carlos Muralles (“Plaintiffs”) and their current counsel D. Scott Doonan. Plaintiffs explain in their declarations that they were under the mistaken belief that if they were successful on the bifurcated Fifth Cause of Action for Disgorgement under Business and Professions Code section 7031 of their First Amended Complaint (“FAC”), any relief granted in their favor would be against not only Defendant Dan Mikolasko Construction, Inc., but also against Dan Mikolasko as an individual under the theory of alter ego. (See Declaration of Xanit Muralles (“X. Muralles Decl.”) ¶ 4; Declaration of Carlos Muralles (“C. Muralles Decl.”) ¶ 2.) On that belief and the Court’s ruling on the Fifth Cause of Action in favor of Plaintiffs, Plaintiffs moved for a voluntary dismissal of the First through Fourth, and Sixth Causes of Action (“the other causes of action”). Based on the Court’s records on this case and Plaintiffs’ exhibits, it appears that at the time Plaintiffs requested the voluntary dismissal of the other causes of action, Plaintiffs were represented by the firm Hunt Ortmann Palffy Nieves Darling & Mah, Inc. (X. Muralles Decl., ¶ 7, Ex. C.) Mr. Doonan is the current counsel for Plaintiffs. (X. Muralles Decl., ¶ 9; Declaration of D. Scott Doonan ¶ 1.)

However, the declarations fail to meet the standard under Code of Civil Procedure section 473(b). Section 473(b)’s relief from entry of a dismissal applies to an involuntary dismissal of the action. An involuntary dismissal is initiated by the court or by the other party for a failure to act by the party. Here, Plaintiffs and their counsel demonstrate through their declarations that the decision to dismiss the remaining causes of action was a conscious and voluntary decision by Plaintiffs based upon what later turned out to be a flawed case strategy. The Plaintiffs here simply failed to provide authority for the relief requested.

Moreover, to the extent the dismissal was predicated on their prior counsel’s mistake, the Court is not in receipt of any declaration from Plaintiffs’ former counsel attesting to its fault. These declarations do not establish personal knowledge that Plaintiffs’ former counsel did in fact make a mistake in dismissing the other causes of action.

There are certainly other avenues of relief the Plaintiffs can pursue, but they have failed to show that relief under Section 473(b) is warranted. The Motion is DENIED.

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