This case was last updated from Los Angeles County Superior Courts on 06/13/2019 at 04:28:23 (UTC).

YAZMIN ORTIZ VS RUDY EISLER ET AL

Case Summary

On 12/04/2017 YAZMIN ORTIZ filed an Other - Injunction lawsuit against RUDY EISLER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ERNEST M. HIROSHIGE. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5414

  • Filing Date:

    12/04/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Other - Injunction

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ERNEST M. HIROSHIGE

 

Party Details

Plaintiff and Appellant

ORTIZ YAZMIN

Respondents and Defendants

EISLER INVESTMENTS

EISLER WENDY

EISLER THERESA

SUNDEEN ROBERT

FLOYD HARRIS

EISLER RUDY

EISLER STEPHEN

SUNDEEN CAROLE

WELLS DUSTIN

WEST END PROPERTIES

DOES 1 - 100

10 More Parties Available

 

Court Documents

EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDERS

2/13/2018: EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDERS

Minute Order

4/9/2018: Minute Order

EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDERS

7/13/2018: EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDERS

NOTICE OF APPEAL

9/11/2018: NOTICE OF APPEAL

NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

9/12/2018: NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

Unknown

10/16/2018: Unknown

Proof of Service by Mail

11/5/2018: Proof of Service by Mail

Unknown

11/7/2018: Unknown

Minute Order

11/7/2018: Minute Order

Motion re:

1/22/2019: Motion re:

Unknown

2/5/2019: Unknown

Motion for Reconsideration

3/4/2019: Motion for Reconsideration

Request

3/19/2019: Request

Minute Order

4/3/2019: Minute Order

Unknown

4/3/2019: Unknown

Unknown

4/19/2019: Unknown

Proof of Service by Mail

5/28/2019: Proof of Service by Mail

COMPLAINT FOR DAMAGES FOR WRONGFUL EVICTION, CONVERSION, TRESPASS, FORCIBLE DETAINER, NEGLIGENT SUPERVISION, BREACH OF COVENANT OF FAIR DEALING, UNFAIR BUSINESS PRACTICES, NEGLIGENCE, VIOLATION OF CA

12/4/2017: COMPLAINT FOR DAMAGES FOR WRONGFUL EVICTION, CONVERSION, TRESPASS, FORCIBLE DETAINER, NEGLIGENT SUPERVISION, BREACH OF COVENANT OF FAIR DEALING, UNFAIR BUSINESS PRACTICES, NEGLIGENCE, VIOLATION OF CA

30 More Documents Available

 

Docket Entries

  • 06/06/2019
  • Clerk's Notice of Non-Compliance of Default on Appeal; Filed by Clerk

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  • 05/30/2019
  • Appeal - Notice of Filing of Notice of Appeal (AMENDED); Filed by Clerk

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  • 05/28/2019
  • Proof of Service by Mail; Filed by Yazmin Ortiz (Plaintiff)

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  • 05/28/2019
  • Ntc Designating Record of Appeal APP-003/010/103; Filed by Yazmin Ortiz (Plaintiff)

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  • 05/10/2019
  • Appeal - Notice of Default Issued; Filed by Clerk

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  • 04/22/2019
  • Appeal - Notice of Filing of Notice of Appeal (for Notice of Appeal, filed 4/19/19 ("U")); Filed by Clerk

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  • 04/19/2019
  • Appeal - Notice of Appeal/Cross Appeal Filed (No Proof of Service;); Filed by Yazmin Ortiz (Appellant)

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  • 04/03/2019
  • at 09:00 AM in Department 54, Ernest M. Hiroshige, Presiding; Hearing on Motion for Reconsideration (of the order denying motion to set aside and vacate the order of dismissal) - Held - Motion Denied

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  • 04/03/2019
  • Certificate of Mailing for (Minute Order (Hearing on Motion for Reconsideration of the order denying mo...) of 04/03/2019 and Copy of the Court's written ruling); Filed by Clerk

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  • 04/03/2019
  • Minute Order ( (Hearing on Motion for Reconsideration of the order denying mo...)); Filed by Clerk

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44 More Docket Entries
  • 04/04/2018
  • First Amended Complaint

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  • 02/13/2018
  • at 11:48 AM in Department 54; Ex-Parte Proceedings (Exparte proceeding; Denied) -

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  • 02/13/2018
  • Ex-Parte Application; Filed by Yazmin Ortiz (Plaintiff)

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  • 02/13/2018
  • EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDERS

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  • 02/13/2018
  • Minute Order

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  • 01/18/2018
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/18/2018
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 12/04/2017
  • ORDER ON COURT FEE WAIVER

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  • 12/04/2017
  • Complaint; Filed by Yazmin Ortiz (Plaintiff)

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  • 12/04/2017
  • COMPLAINT FOR DAMAGES FOR WRONGFUL EVICTION, CONVERSION, TRESPASS, FORCIBLE DETAINER, NEGLIGENT SUPERVISION, BREACH OF COVENANT OF FAIR DEALING, UNFAIR BUSINESS PRACTICES, NEGLIGENCE, VIOLATION OF CA CIVIL CODE 1962, BREACH OF WRITTEN RENTAL AGREEMENT, IN

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Tentative Rulings

b'

Case Number: BC685414 Hearing Date: July 16, 2021 Dept: 54

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Superior Court\r\n of California

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County of Los\r\n Angeles

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YAZMIN ORTIZ,

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Plaintiff,

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Case No.:

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BC685414

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vs.

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Tentative Ruling

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RUDY EISLER, et al.,

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Defendants.

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Hearing Date: July 16, 2021

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Department 54, Judge Maurice Leiter

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Plaintiff’s Motion to Set Aside Order of Dismissal

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Moving Party:\r\nYazmin Ortiz

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Responding Party: N/A

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T/R: THE COURT DENIES PLAINTIFF’S MOTION FOR\r\nRELIEF FROM DISMISSAL.

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PLAINTIFF TO\r\nNOTICE.

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If the parties wish to submit on the tentative, please email\r\nthe courtroom at SMCdept54@lacourt.org with\r\nnotice to opposing counsel (or self-represented party) before 8:30 am on the\r\nday of the hearing

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The Court\r\nconsiders the moving papers.

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BACKGROUND

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On December 4, 2017, Plaintiff Yazmin Ortiz sued Rudy Eisler and others,\r\nasserting 20 causes of action arising out of an alleged wrongful conviction. On\r\nApril 4, 2018, Plaintiff filed a first amended complaint, alleging 31 causes of\r\naction, including for unlawful eviction, breach of contract, and intentional\r\ninfliction of emotional distress.

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On January 18, 2018, the Court ordered Plaintiff to notify all parties\r\nof a case management conference scheduled for April 9, 2018. On April 9, 2018,\r\nPlaintiff appeared at the scheduled case management conference. Plaintiff had\r\nnot served defendants and defendants did not appear. The Court issued a minute\r\norder stating it had not held the case management conference. The Court set an\r\n“Order To Show Cause Re: Failure To Serve,” for June 1, 2018.

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By June 1, 2018, Plaintiff still had not served defendants. Instead,\r\nPlaintiff filed an ex parte application seeking an extension of time until\r\nSeptember 1, 2018 to serve Defendants. Plaintiff’s explanation for not serving\r\nDefendants was: “An offer of settlement and because there is another case\r\npending that will affect the causes of action on this case as well as the\r\ndefendants named.”

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On June 1, 2018, the Court held a hearing on the order to show cause and\r\non Plaintiff’s ex parte application. On July 13, 2018, the Court granted\r\nPlaintiff’s application for an extension of time and also set another “Order To\r\nShow Cause Re: Failure To Serve” for July 13, 2018.

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On July 11, 2018, Plaintiff filed a notice of related case, claiming\r\nthat case no. SC125247 involved the same parties and the same or similar\r\nclaims. By the July 13, 2018 hearing, Plaintiff still had not served Defendants\r\nor filed a declaration as to her diligence in trying to serve Defendants.\r\nInstead, she filed a second ex parte application, asking for another extension\r\nof time.

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On July 13, 2018, the trial court held a hearing on the order to show\r\ncause. Plaintiff appeared and presented argument. Defendants did not appear.\r\nFollowing the hearing, the Court issued a minute order finding that Plaintiff\r\nhad failed to serve the complaint and had not filed a declaration of due\r\ndiligence regarding her efforts. The Court sustained the order to show cause\r\nand dismissed the action.

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On September 11, 2018, Plaintiff filed a notice of appeal from the order\r\nof dismissal.

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On February 13, 2019, Plaintiff filed a motion for relief from the\r\ndismissal order pursuant to Code Civ. Proc. section 473(b). On February 20,\r\n2019, the Court denied the motion as untimely and for failure to provide\r\nadequate grounds. On March 4, 2019, Plaintiff moved for reconsideration of the\r\nFebruary 20, 2019, order. The Court denied the motion on April 3, 2019, finding\r\nthat Plaintiff had presented no new facts or circumstances.

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On April 19, 2019, Plaintiff filed a notice of appeal from the February\r\n20, 2019, and April 3, 2019, orders.

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On April 22, 2021, the Court of Appeal issued a decision: 1) affirming\r\nthe Court’s dismissal order, and 2) reversing as void the Court’s orders\r\ndenying Plaintiff’s motion for relief and motion for reconsideration. The Court\r\nof Appeal found that Plaintiff’s September 11, 2018 notice of appeal divested\r\nthe Court of jurisdiction to consider her motion for relief. As a result, the order\r\ndenying the motion for relief from the dismissal order was void, as was the\r\nmotion for reconsideration. The Court of Appeal remanded the matter to the\r\nCourt for further proceedings on the motion for relief.

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The Court now turns to Plaintiff’s motion for relief.

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ANALYSIS

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Code Civ. Proc.,\r\nsection 473(b), provides that a judge may, on any terms as may be just, relieve\r\na party or a party\'s attorney from an order taken against the party or\r\nattorney, through the party\'s or attorney\'s mistake, inadvertence, surprise, or\r\nexcusable neglect. (Id.) Further, section 473(b) provides for both\r\ndiscretionary and mandatory relief. (Pagnini v Union Bank, N.A. (2018)\r\n28 Cal.App.5th 298, 302.)

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“Thus, in determining the merits of a Code of Civil\r\nProcedure section 473 motion, the court should take into account the\r\ncircumstances of the case and the prejudice, if any, to the parties.\r\n[Citations]" (Carrasco v. Craft (1985) 164 Cal.App.3d 796,\r\n803 (bold emphasis added).

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Plaintiff\r\nmoves for relief from the dismissal of the action on July 13, 2018.

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As\r\ndiscussed, on July 13, 2018 the Court dismissed the operative complaint\r\npursuant to California Rules of Court, rule 3.110(b). That rule provides that\r\n“[t]he complaint must be served on all named defendants and proofs of service\r\non those defendants must be filed with the court within 60 days\r\nafter the filing of the complaint…” (Id.)

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Plaintiff\r\ndid not serve the defendants within 60 days of filing the complaint or in the\r\nfollowing 6 to 7 months leading up to the dismissal of the complaint. The Court\r\non January 18, 2018 issued an order to show cause regarding dismissal for\r\nfailure to comply with this time limit. Following Plaintiff’s failure to comply\r\nwith that initial order, the Court issued subsequent orders to show cause on\r\nApril 9 and June 1, 2018, until the Court ultimately dismissed the case on July\r\n13, 2018.

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Plaintiff\r\nasserts she did not serve the complaint because she was ill, she had not been\r\nable to find the defendants’ addresses, and a related case was pending that\r\nwould affect the causes of action in this case. Plaintiff’s declaration states:\r\n1) Plaintiff had been ill for the entire period of time since the filing of\r\nthis action’s complaint; 2) Plaintiff had been unable to ascertain the address\r\nof the proper defendants; 3) Plaintiff had not been able to serve the summons\r\nand complaint in this case due to her illness; and 4) there was/is an appeal\r\npending that has some issues that can affect the issues in this action.

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Plaintiff’s\r\nexplanation does not justify the 7-month delay in serving the summons and\r\ncomplaint. Indeed, it appears Plaintiff was able to file the complaint and an\r\namended complaint here and prosecute her alternative case during this period.\r\nAs she indicated at the time, her not serving the complaint in this case was a\r\nstrategic choice. “In propria persona litigants are entitled to the same, but\r\nno greater, rights than represented litigants and are presumed to know the\r\ndelay-reduction rules.” (Wantuch v. Davis (1995) 32 Cal.App.4th 786,\r\n795.)

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Plaintiff\r\nwas afforded several opportunities to serve the Summons and Complaint over\r\nseveral months. Plaintiff had ample time to serve the defendants. From January\r\nthrough early July 2018, the Court extended the 60-day period under rule\r\n3.110(b) and gave Plaintiff numerous opportunities to serve Defendants.\r\nPlaintiff failed to take action after three orders to show cause.

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Plaintiff’s Motion for Relief from Dismissal Order is\r\nDENIED.

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