Leyva v. Ortiz CA3

Filed 1/20/23 Leyva v. Ortiz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ---- GUADALUPE LEYVA et al., C095423 Plaintiffs, Cross-defendants and Respondents, (Super. Ct. No. STK- CV-URP-2016-0007213) v. JOSE DE JESUS ORTIZ, Defendant, Cross-complainant and Appellant; LORENZO ORTIZ, Defendant and Appellant. When Natividad Ortiz1 passed away in 1981, her estate went through probate. In 1983, interest in the residence she owned was divided in equal shares to each of her nine children (the appellants and respondents). Respondents brought the instant suit seeking to sell the property and divide the sales proceeds alleging, in part, they were never 1 Also known as Maria Hernandez Ortiz. 1 notified of the division of property in 1983. The trial court ruled in respondents’ favor. However, before the trial judge, Judge George Abdallah, ruled on the matter, the presiding judge of the San Joaquin County Superior Court ordered Judge Abdallah disqualified pursuant to Code of Civil Procedure section 170.3.2 On appeal, appellants challenge the merits of the trial court’s ruling, but also claim the trial court’s order of judgment was void because Judge Abdallah was disqualified prior to ruling on the matter. We agree the trial judge had been disqualified prior to entering its ruling and the judgment is thereby void. Thus, we vacate the judgment and remand to the trial court.3 FACTUAL AND PROCEDURAL BACKGROUND Given the nature of the resolution on this appeal, we need not recite the facts of the underlying lawsuit. It suffices to say that the underlying case involves an intrafamilial dispute over the ownership of the family home. In 1983, appellant Jose de Jesus Ortiz was the administrator of Natividad’s estate. Ann Cerney,4 a local probate attorney at the time, represented appellants during the course of the administration. On May 19, 1983, a judgment directing final distribution was issued, distributing to each of Natividad’s nine surviving children a one-ninth undivided interest in her house. In 2016, respondents filed a complaint for partition under sections 872.210 and 872.230, seeking to sell the house and divide the proceeds among the eight children and one descendant of the ninth child who was now deceased. One of the issues in the case is 2 Undesignated statutory references are to the Code of Civil Procedure. 3 Because we conclude the judgment was void, we need not address appellants’ challenges to the merits of the judgment. On remand the parties will have the opportunity to relitigate the merits. 4 Appellants allege, and respondents do not assert otherwise, that “Retired Judge Elizabeth Humphreys, who is also the spouse of Judge Abdallah, was the sole associate attorney at the Law Offices of Ann Cerney during the course of administration.” …

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