This case was last updated from Los Angeles County Superior Courts on 01/20/2021 at 10:38:12 (UTC).

DAVID L. RUKSTALIS, JR. VS. GINA M. OGILVIE

Case Summary

On 07/10/2017 DAVID L RUKSTALIS, JR filed a Contract - Debt Collection lawsuit against GINA M OGILVIE. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are WILLIAM D. STEWART and CURTIS A. KIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6984

  • Filing Date:

    07/10/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

WILLIAM D. STEWART

CURTIS A. KIN

 

Party Details

Plaintiffs and Cross Defendants

RUKSTALIS DAVID LAW OFFICES OF

RUKSTALIS DAVID L. JR.

RUKSTALIS DAVID L. JR. DBA LAW OFFICES OF DAVID RUKSTALIS

Defendants and Cross Plaintiffs

OGILVIE GINA M.

OGILVIE GINA MARIE

OGILVIE GINA M. GINA MARIE OGILVIE

Not Classified By Court

LAW OFFICES OF PHILIP LANDSMAN

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

LANDSMAN PHILIP ALAN

COOK ERROL LAMONT

RUKSTALIS DAVID LEE JR

SCHUMAN STEVEN A.

LANDSMAN PHILIP LAW OFFICES OF

Defendant and Cross Plaintiff Attorneys

THE FULLMAN FIRM PC

FULLMAN ADAM CHRISTIAN

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE ADVANCING HEARING SET ON DECEMBER 18, 2020 AND...) OF 12/07/2020

12/7/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE ADVANCING HEARING SET ON DECEMBER 18, 2020 AND...) OF 12/07/2020

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND [PROPOSED] ORDER CONTINUING HEARING ON OCTOBER 23, 2020

10/6/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND [PROPOSED] ORDER CONTINUING HEARING ON OCTOBER 23, 2020

Opposition - AMENDED OPPOSITION TO CROSS-DEFENDANT'S MOTION TO DISMISS CROSS-COMPLAINT AND SET ASIDE CROSS-DEFENDANT'S DEFAULT ON GINA OGILVIE'S CROSS-COMPLAINT

10/8/2020: Opposition - AMENDED OPPOSITION TO CROSS-DEFENDANT'S MOTION TO DISMISS CROSS-COMPLAINT AND SET ASIDE CROSS-DEFENDANT'S DEFAULT ON GINA OGILVIE'S CROSS-COMPLAINT

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

8/31/2020: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Statement of the Case - STATEMENT OF THE CASE RE AUGUST 28, 2020 HEARING

8/17/2020: Statement of the Case - STATEMENT OF THE CASE RE AUGUST 28, 2020 HEARING

Request for Entry of Default / Judgment

7/8/2020: Request for Entry of Default / Judgment

Minute Order - MINUTE ORDER (EX-PARTE PROCEEDINGS TO CONTINUE TRIAL AND DISCOVERY CUTOFF A...)

3/25/2020: Minute Order - MINUTE ORDER (EX-PARTE PROCEEDINGS TO CONTINUE TRIAL AND DISCOVERY CUTOFF A...)

Order - ORDER PROPOSED RE DEFENDANT GINA M. OGILVIE MOTION TO COMPEL DEPOSITION TESTIMONY OF PLAINTIFF AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $2073.50

2/28/2020: Order - ORDER PROPOSED RE DEFENDANT GINA M. OGILVIE MOTION TO COMPEL DEPOSITION TESTIMONY OF PLAINTIFF AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $2073.50

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE HEARING SET FOR 1...)

1/9/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE HEARING SET FOR 1...)

Declaration - DECLARATION OF ADAM C. FULLMAN IN SUPPORT OF DEFENDANT GINA M. OGILVIE'S MOTION TO COMPEL DEPOSITION TESTIMONY OF PLAINTIFF AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $2073.50

12/13/2019: Declaration - DECLARATION OF ADAM C. FULLMAN IN SUPPORT OF DEFENDANT GINA M. OGILVIE'S MOTION TO COMPEL DEPOSITION TESTIMONY OF PLAINTIFF AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $2073.50

Ex Parte Application - EX PARTE APPLICATION OF DAVID L. RUKSTALIS, JR. REGARDING NOTICE OF EX PARTE HEARING

10/3/2019: Ex Parte Application - EX PARTE APPLICATION OF DAVID L. RUKSTALIS, JR. REGARDING NOTICE OF EX PARTE HEARING

Proof of Service by Mail

7/9/2019: Proof of Service by Mail

Order - ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

6/28/2019: Order - ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

Notice of Case Management Conference

7/10/2017: Notice of Case Management Conference

Civil Case Cover Sheet

7/10/2017: Civil Case Cover Sheet

Notice of Ruling

12/11/2018: Notice of Ruling

Notice of Ruling - AT CASE MANAGEMENT CONFERENCE

8/20/2018: Notice of Ruling - AT CASE MANAGEMENT CONFERENCE

103 More Documents Available

 

Docket Entries

  • 02/11/2021
  • Hearing02/11/2021 at 09:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Dismiss

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  • 02/11/2021
  • Hearing02/11/2021 at 09:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Trial Setting Conference

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  • 02/11/2021
  • Hearing02/11/2021 at 09:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Hearing on Ex Parte Application re Plaintiff's Motion to Continue Trial and Discovery Cutoff and to Compel Defendant to Attend her Deposition

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  • 12/18/2020
  • Docketat 1:30 PM in Department A, William D. Stewart, Presiding; Hearing on Ex Parte Application (re Plaintiff's Motion to Continue Trial and Discovery Cutoff and to Compel Defendant to Attend her Deposition) - Not Held - Continued - Court's Motion

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  • 12/18/2020
  • Docketat 1:30 PM in Department A, William D. Stewart, Presiding; Trial Setting Conference - Not Held - Continued - Court's Motion

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  • 12/18/2020
  • Docketat 1:30 PM in Department A, William D. Stewart, Presiding; Hearing on Motion to Dismiss (Deft Gina Ogilvie's Cross Complaint & Set Aside Plaintiff's Default on Cross Complaint Filed by Pltff David L. Ruksalis) - Not Held - Continued - Court's Motion

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  • 12/09/2020
  • DocketNotice (OF CONTINUED HEARING DATE); Filed by David L. Jr. Rukstalis (Plaintiff)

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  • 12/07/2020
  • Docketat 3:03 PM in Department A, William D. Stewart, Presiding; Court Order

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  • 12/07/2020
  • DocketCertificate of Mailing for ((Court Order re ADVANCING HEARING SET ON DECEMBER 18, 2020 AND...) of 12/07/2020); Filed by Clerk

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  • 12/07/2020
  • DocketDeclaration (of Expert Witness Mark Henninger in Support of Cross-Complainant's Opposition to Motion to Dismiss Cross-Complaint and Set Aside Default on Cross-Complainant)); Filed by Gina M. Ogilvie (Cross-Complainant)

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145 More Docket Entries
  • 12/07/2017
  • Docketat 08:30 AM in Department A; Case Management Conference (Conference-Case Management; Matter continued) -

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  • 12/07/2017
  • DocketMinute order entered: 2017-12-07 00:00:00; Filed by Clerk

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  • 09/26/2017
  • Docketat 08:30 AM in Department A; Order to Show Cause Re: Failure to File Proof of Service (OSC-Failure to File Proof of Serv; Matter continued) -

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  • 09/26/2017
  • DocketMinute order entered: 2017-09-26 00:00:00; Filed by Clerk

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  • 09/22/2017
  • DocketCase Management Statement; Filed by Rukstalis, David, Law Offices of (Plaintiff); David L. Jr. Rukstalis (Plaintiff)

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  • 07/10/2017
  • DocketNotice of Case Management Conference; Filed by Court

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  • 07/10/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Court

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  • 07/10/2017
  • DocketSummons; Filed by Rukstalis, David, Law Offices of (Plaintiff); David L. Jr. Rukstalis (Plaintiff)

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  • 07/10/2017
  • DocketCivil Case Cover Sheet; Filed by David L. Jr. Rukstalis (Plaintiff)

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  • 07/10/2017
  • DocketComplaint filed-Summons Issued; Filed by Rukstalis, David, Law Offices of (Plaintiff); David L. Jr. Rukstalis (Plaintiff)

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Tentative Rulings

Case Number: EC066984    Hearing Date: July 31, 2020    Dept: A

The Superior Court is re-opening under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology such as Court Call or LACourtConnect (when it becomes available on August 3 for Branch Civil)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Rukstalis v Ogilvie

Motion to Dismiss;

Ex Parte Application

Calendar:

09

Case No.:

EC066984

Hearing Date:

July 31, 2020

Action Filed:

July 10, 2017

Trial Date:

August 31, 2020

MP:

Plaintiff/Cross-Defendant David L. Rukstalis

RP:

Defendant/Cross-Complainant Gina M. Ogilvie

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 late reply on July 27, 2020. The reply was due on July 24, 2020.

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:

Motion to Dismiss

Standard of Review

Code Civ. Proc. § 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.)

Code Civ. Proc. § 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).)

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 to leave. Plaintiff contends that, but for the allegedly fraudulent exhibit, the cross-complaint was time-barred. Plaintiff further contends Defendant and her counsel, Mr. Fullman, intentionally misled the Court and State Bar by each claiming two different dates, two months apart, as the dates they discovered the event underpinning the cross-complaint. Finally, Plaintiff argues he was not served with the motion for leave to file the cross-complaint and was unaware that Defendant filed a default request on that cross-complaint, due to his health issues and multiple hospitalizations. Plaintiff additionally contends he was under the mistaken impression he was represented by counsel, Mr. Errol Cook, during the period when the cross-complaint was filed, when in reality he was not.

Defendant argues the motion is untimely because it was filed more than nine months after the entry of default, the Declaration of David L. Rukstalis, Jr. is unsworn, the Declaration fails to state facts showing extrinsic fraud in the entry of default, Plaintiff had actual knowledge of the cross-complaint's service as per a letter on July 11, 2019, and Plaintiff cites no legal authority supporting dismissal. Defendant also argues the motion presents no admissible evidence because the Declaration of Rukstalis contains no certification that it is made under penalty of perjury.

Any declaration or affidavit submitted into evidence is required to be certified by the declarant to be true under penalty of perjury. (Code Civ. Proc., § 2015.5.) While the original motion declaration had no perjury certification pursuant to CCP § 2015.5, the supplemental declaration in the reply brief does contain such certification. The Court will thus consider only the supplemental declaration in its analysis. Entry of default was entered for the cross-complaint on August 13, 2019. This is more than six months earlier than the instant motion, filed on June 29, 2020, and so precludes relief under CCP 473. Under CCP 473.5, however, a party may file a motion to asset aside the default and for leave to defend the action "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." The issue, then is whether Plaintiff was served with written notice that the default was entered within 180 days of the instant motion.

Plaintiff submits that he misunderstood Mr. Cook to be representing him during the period the cross-complaint was filed and serviced, Mr. Cook was in fact not representing him, and Mr. Cook additionally made Defendant aware of this non-representation, though it is unclear from the declaration exactly when Mr. Cook did so, and on what occasions. (Supp. Decl. Rukstalis, ¶¶ 37-39.) Plaintiff further contends that as of September 26, 2019, when he substituted in pro per as his own attorney, he was not served with any notice of the motion for leave to file the cross-complaint, that the cross-complaint was filed, or that a notice of default and request to enter default was entered into court. (Supp. Decl. Rukstalis, ¶ 41.)

The Court finds that Plaintiff received actual notice of the default when he substituted in as his own attorney on September 26, 2019. This is not within 180 days of of June 29, 2020, which precludes discretionary relief under CCP § 473.5. As stated earlier, the Court also cannot grant discretionary relief pursuant to CCP § 473 because it has been more than six months from the entry of default. Accordingly, the Court will deny the instant motion.

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Ex Parte

Notice of Service

"An ex parte application must be accompanied by a declaration regarding notice stating:

(1)  The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 3.1203, the applicant informed the opposing party where and when the application would be made;

(2)  That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or

(3)  That, for reasons specified, the applicant should not be required to inform the opposing party."

(Cal. Rules of Court, Rule 3.1204, subd. (b).)

The Court finds that Plaintiff has not submitted proof of service regarding the ex parte application, nor a declaration that the applicant attempted in good faith to inform the opposing party and was unable to do so, specifying such efforts, or why the application should not be required to do so.

Accordingly, the Court will deny the ex parte application.

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RULING:

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 July 31, 2020, 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.

THE EX PARTE APPLICATION IS DENIED.

DATE: _______________ _______________________________

JUDGE

Case Number: EC066984    Hearing Date: February 14, 2020    Dept: A

Rukstalis v Ogilvie

Motion to Compel Deposition

Calendar:

13

Case No.:

EC066984

Hearing Date:

February 14, 2020

Action Filed:

July 10, 2017

Trial Date:

April 27, 2020

MP:

Defendant/Cross-Complainant Gina M. Ogilvie

RP:

N/A

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:

Defendant filed the instant motion on December 13, 2019, which was originally set for oral arguments on January 10, 2020. Plaintiff, by ex parte application, requested a continuance of the motion, which the Court heard and granted on January 09, 2020, setting the new hearing date for February 14, 2020. To date, no opposition has been received.

RELIEF REQUESTED:

Defendant moves to compel Plaintiff’s deposition and seeks sanctions in the amount of $2,073.50.

DISCUSSION:

Standard of Review – Code of Civil Procedure §2025.450 permits a party to seek a motion to compel a deposition where a deponent fails to appear or produce documents at a deposition. The motion is permissible after a party fails to appear without having served a valid objection pursuant to Code of Civil Procedure §2025.410. Code of Civil Procedure §2025.450(a). The motion must include specific facts demonstrating good cause for the production of documents or items, and must be accompanied by a declaration setting forth facts demonstrating that a good faith and reasonable attempt at informal resolution has been made. Code of Civil Procedure §2025.450(b). Monetary sanctions are mandatory against an unsuccessful moving or opposing party unless they acted with substantial justification or imposition of sanctions would be unjust. Code of Civil Procedure §2025.450(g)(1).

On review of the moving papers, including the Declaration of Adam Fullman, the Court finds that Defendant is entitled to take Plaintiff’s deposition. As to the issue of sanctions, because there was no opposition, the Court will award sanctions in the amount of $1,273.50.

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RULING: Grant, as set forth 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

Defendant/Cross-Complainant Gina M. Ogilvie’s Motion to Compel Plaintiff’s Deposition came on regularly for hearing on February 14, 2020, 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 IS GRANTED, AND SANCTIONS ARE AWARDED IN THE AMOUNT OF $1,273.50. DEFENDANT IS ORDERED TO APPEAR FOR DEPOSITION AT THE OFFICE OF COUNSEL FOR PLAINTIFF ON March 24, 2020 at 10:00 AM or such other time and place as may be agreed in writing.

DATE: _______________ _______________________________

JUDGE