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This case was last updated from Los Angeles County Superior Courts on 04/11/2019 at 20:49:42 (UTC).

THE E-TAIL NETWORK INC. VS GAIK MARKARIAN

Case Summary

On 10/02/2012 THE E-TAIL NETWORK INC filed a Contract - Debt Collection lawsuit against GAIK MARKARIAN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM D. STEWART. The case status is Disposed - Judgment Entered.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****9464

  • Filing Date:

    10/02/2012

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

WILLIAM D. STEWART

 

Party Details

Plaintiffs

THE E

THE E-TAIL NETWORK INC.

Defendant

MARKARIAN GAIK

Attorney/Law Firm Details

Plaintiff Attorney

COHN GEORGE L. ATTORNEY AT LAW

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 02/20/2014
  • Writ of Execution; Filed by Sheriff/Police

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  • 08/08/2013
  • Writ of Execution; Filed by Sheriff/Police

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  • 07/31/2013
  • Memorandum of Costs

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  • 07/31/2013
  • Writ-Other; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 03/01/2013
  • Abstract of Judgment - Civil and Small Claims; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 02/27/2013
  • at 08:30 AM in Department A; Case Management Conference (Conference-Case Management; Matter Placed Off Calendar) -

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  • 02/07/2013
  • Memorandum of Costs; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 02/07/2013
  • Writ-Other; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 12/17/2012
  • at 08:30 AM in Department A; (Order to Show Cause; OSC Discharged) -

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  • 12/12/2012
  • Declaration; Filed by The E-Tail Network Inc. (Plaintiff)

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1 More Docket Entries
  • 12/12/2012
  • Default Judgment

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  • 12/12/2012
  • Waiver; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 12/12/2012
  • Request for Dismissal-Partial; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 12/12/2012
  • Default Entered; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 12/12/2012
  • Request for Entry of Default / Judgment; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 11/29/2012
  • Proof of Service of Summons and Complaint; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 10/02/2012
  • Notice; Filed by Court

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  • 10/02/2012
  • Notice of Case Management Conference; Filed by null

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  • 10/02/2012
  • Complaint; Filed by The E-Tail Network Inc. (Plaintiff)

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  • 10/02/2012
  • Summons; Filed by Plaintiff

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Tentative Rulings

Case Number: EC059464    Hearing Date: February 11, 2021    Dept: A


Case Number: EC066984    Hearing Date: February 11, 2021    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology LACourtConnect

If it is indispensable for counsel to be present in court, face masks (without a valve) are mandated (unless a court orders otherwise) and social distancing rules are in force.

 

 

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances.

  1. Argument is limited to three minutes, unless the court grants a request for additional time.

  2. The reading of argument is feckless and nugatory.

  3. State your name at the beginning of all statements.

  4. Do not speak directly to other counsel without permission of court.

  5. Do not interrupt or attempt to speak over another speaker.

  6. Do not announce your presence until called by your name or case name.

  7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

  8. Maintain silence in your surroundings – no keyboarding, dogs barking, children crying, etc.

FURTHER, effective January 11, 2021, the court makes available its Remote Audio Appearance Program (RAAP) service which enables any person with commonly available devices to listen to court proceedings which are otherwise open to the public. There is no cost for this service and no recording of any kind is permitted – such would be a violation of court rules and punishable as such.

Information is available at: http://www.lacourt.org/newsmedia/ui/CourtroomSeating.aspx

Rukstalis v Ogilvie

Motion to Dismiss; Ex Parte Application

Calendar:

09

Case No.:

EC066984

Hearing Date:

February 11, 2021

Action Filed:

July 10, 2017

Trial Date:

Not Set

Dismiss

MP:

Plaintiff/Cross-Defendant David L. Rukstalis

RP:

Defendant/Cross-Complainant Gina M. Ogilvie

Ex Parte

MP:

Defendant/Cross-Complainant Gina M. Ogilvie

RP:

Plaintiff/Cross-Defendant David L. Rukstalis

ALLEGATIONS:

In this action, Plaintiff David L. Rukstalis, Jr. dba Law Offices of David Rukstalis (“Plaintiff”) alleges that he and Defendant Gina M. Ogilvie (“Defendant”) entered into a written agreement on February 6, 2015, such that Plaintiff agreed to render legal services on behalf of Defendant and Defendant would make payments pursuant to invoices. Plaintiff alleges that Defendant breached the agreement on June 27, 2017 by failing to make payments due.

Plaintiff filed his Complaint on July 10, 2017, alleges causes of action for: (1) Breach of Contract; and (2) Common Counts.

Defendant filed a Cross-Complaint on June 28, 2019, against Plaintiff, alleging a single cause of action for Breach of Fiduciary Duty.

PRESENTATION:

The Court entered entry of default for the cross-complaint on August 13, 2019.

Plaintiff filed the ex parte application on July 23, 2020. No opposition or reply was filed.

Plaintiff filed the motion to dismiss on June 29, 2020, Defendant filed an opposition on July 20, 2020, and Plaintiff filed a reply on July 27, 2020.

On July 31, 2020, the Court continued the instant matters to August 28, 2020 due to Plaintiff's medical condition, to allow Plaintiff to file additional briefing, and Defendant to file a supplemental reply, and waived notice.

On August 28, 2020, the Court continued the instant matters to October 23, 2020 and granted parties leave to file supplemental briefs. Notice was waived.

On October 06, 2020, the Court continued the instant matters pursuant to written stipulation between the parties to December 18, 2020 and directed moving party to give notice, including a copy of the minute order.

The Court received amended opposition, filed by Defendant, to the Motion to Dismiss on October 08, 2020. No further briefing filed by Plaintiff was received by the Court.

On December 07, 2020, the Court continued the instant matters to February 11, 2021 and directed Plaintiff to give notice, including a copy of the minute order. A copy of the minute order was mailed to counsel for Plaintiff.

RELIEF REQUESTED:

Plaintiff moves to dismiss the Cross-Complaint and to set aside the associated default.

Plaintiff moves for an order continuing the trial for four months and the discovery cutoff date to November 7, 2020, and to compel the Defendant to attend her deposition in person.

DISCUSSION:

Standard of Review – Motion to Dismiss – CCP § 473(b) provides that the trial 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.” In order for the Court to grant discretionary relief, the moving party must (1) “be accompanied by a copy of the answer or other pleading proposed to be filed therein,” (2) “be made within a reasonable time, in no case exceeding six months,” but (3) “[n]o affidavit or declaration of merits shall be required of the moving party.” (Code Civ. Proc., § 473, subd. (b).) Whether the filing is made within a reasonable time is a matter left to the discretion of the trial court, and depends upon the specific circumstances of the delay, including the cause for the attorney’s mistake, inadvertence, surprise, or excusable neglect. (Minick v. City of Petaluma (2016) 3 Cal. App. 5th 15; Comunidad En Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1133–34.)

CCP § 473.5(a) provides "[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered." This motion must be "accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect." (Code Civ. Proc., § 473.5, subd. (b).)

Cross-Complaint Entry of Default – On review of the case, the Court finds that the entry of default was premature, and that the default was erroneously entered by the Court on August 13, 2020. Defendant's proof of service on the Cross-Complaint was filed on July 09, 2019 and sent by regular mail. Plaintiff had 30 days to respond pursuant to CCP § 471.5 and 5 additional days pursuant to CCP § 1013 for service by mail to a California address for a total of 35 days to answer. CCP § 12 provides that the calendar calculation excludes the first day and includes the last, and so Plaintiff had until the close of business on August 13, 2019 to respond to the Cross-Complaint. As the Court mistakenly made the entry of default on August 13, 2019, the Court will, on its own motion, set aside the entry of default as to the Cross-Complaint.

Merits – Plaintiff contends that Defendant manufactured fraudulent documents in support of its motion for leave to file the cross-complaint. Specifically, Plaintiff argues Defendant created a "draft" email on her phone and dated this draft 04/30/15 and used the document as a supporting exhibit for the Motion For Leave to File Cross-Complaint. (Decl. Rukstalis, ¶¶ 13-20.) Plaintiff contends that, but for the allegedly fraudulent exhibit, the cross-complaint was time-barred. This issue is not ripe for discussion at this time on that basis, because the document in question is a cross-complaint. CCP 431.70 provides for offset in the event the cross-claim is barred.

Standard of Review – Ex Parte – "A request for ex parte relief must be in writing and must include all of the following:

(1)  An application containing the case caption and stating the relief requested;

(2)  A declaration in support of the application making the factual showing required under rule 3.1202(c);

(3)  A declaration based on personal knowledge of the notice given under rule 3.1204;

(4)  A memorandum; and

(5)  A proposed order." (Cal. Rules of Court, Rule 3.1201.)

Pursuant to California Rules of Court, Rule 3.1202(c), "An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."

Merits – In Plaintiff's Statement of the Case, filed on August 17, 2020, he asserts that the parties have agreed to resolve the deposition issue in good faith without the need for further intervention by the Court, and that the parties agree that the instant matter should be set for trial at the earliest possible date. (Statement, ¶¶ 3, 5.) As Plaintiff was the moving party for the application, and in light of Defendant's non-opposition, the ex parte application is mooted.

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RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff/Cross-Defendant David L. Rukstalis Jr.'s Motion to Dismiss and Ex Parte Application came on regularly for hearing on February 11, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO DISMISS IS DENIED WITHOUT PREJUDICE; MOTION TO SET ASIDE IS GRANTED ON THE COURT’S OWN MOTION. MOVING PARTY TO ASNWER WITHIN FIVE DAYS OF NOTICE.

THE EX PARTE APPLICATION IS MOOTED AND TAKEN OFF CALENDAR

DATE: _______________ _______________________________

JUDGE

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