Judge: Michael E. Whitaker, Case: SC125247, Date: 2023-10-23 Tentative Ruling

Case Number: SC125247    Hearing Date: March 26, 2024    Dept: 207

TENTATIVE RULING - No. 1

MOTIONS

Plaintiff Yazmin Ortiz (“Plaintiff”) demurs to the answer and the first amended answer filed by Defendants Rudy Eisler, individually and as trustee for the Eisler Family Living Trust; Stephen Eisler, individually and as trustee for the Eisler Family 2000 Living Trust; Theresa Eisler, individually and as trustee for the Eisler Family 2000 Living Trust; Wendy Eisler, individually and as trustee for the Eisler Family Living Trust; Eisler Investments; West End Properties; Robert Sundeen; Carole Sundeen; and Dustin Wells (“Defendants”).  Plaintiff also moves to strike the answer and first amended answer. 

The Court notes that the demurrer and motion to strike the original answer were mooted by virtue of Defendants’ filing a first amended answer.  Therefore, the Court addresses only the demurrer and motion to strike the first amended answer.

Defendants oppose both motions.  Plaintiff did not reply.

MEET AND CONFER REQUIREMENT

            Code of Civil Procedure section 430.41, subdivision (a) requires that “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” 

The statute further requires “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 430.41, subd. (a)(1).)  “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”  (Ibid.)

“The parties shall meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc. § 430.41, subd. (a)(2).)  “The demurring party shall file and serve with the demurrer a declaration stating either” the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request.  (Id., subd. (a)(3).) 

Here, the Friday before filing the instant demurrer and motion to strike, Plaintiff called Defense counsel’s office, asking to speak to Mr. Thomas Citron, who was not available, so Plaintiff hung up without asking to speak to Katherine A. Tatikian, who filed and served Defendants’ answer, and who was available.  (Ortiz Decl. ¶ 3; Tatikian Decl. ¶ 4.) 

Therefore, the Court agrees with Defendants that Plaintiff’s meet and confer efforts were insufficient.

CONCLUSION AND ORDER

Because Plaintiff has failed to adequately meet and confer with Defendants prior to filing the instant demurrer and motion to strike the first amended answer, the Court continues the hearing on both motions to April 18, 2024 at 8:30 A.M. in Department 207 so the parties may adequately meet and confer in a good faith attempt to resolve their disputes with respect to the pleadings without the need for judicial intervention.  Plaintiff and Defendants shall file declarations regarding compliance with Code of Civil Procedure section 430.41, subdivision (a), by no later than April 11, 2024. 

The Clerk of the Court shall provide notice of the Court’s ruling. 

DATED:  March 26, 2024                                                      ___________________________

                                                                                    Michael E. Whitaker

                                                                                    Judge of the Superior Court

TENTATIVE RULING - No. 2

MOTION

            Plaintiff Yazmin Ortiz (“Plaintiff”) moves for reconsideration of the Courts February 7, 2024 order denying Plaintiff leave to file a supplemental complaint. 

Defendants Rudy Eisler, individually and as trustee for the Eisler Family Living Trust; Stephen Eisler, individually and as trustee for the Eisler Family 2000 Living Trust; Theresa Eisler, individually and as trustee for the Eisler Family 2000 Living Trust; Wendy Eisler, individually and as trustee for the Eisler Family Living Trust; Eisler Investments; West End Properties; Robert Sundeen; Carole Sundeen; and Dustin Wells (“Defendants”) oppose the motion and Plaintiff replies.

UNTIMELY OPPOSITION

Plaintiff objects to Defendants’ opposition as untimely.   

Code of Civil Procedure, section 1005 provides that “all moving and supporting papers shall be served and filed at least 16 court days before the hearing” and “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”  (Code Civ. Proc., § 1005, subd. (b).)  The Court has discretion whether to consider late filed papers.  (Cal. Rules of Court, rule 3.1300(d).)

Plaintiff originally filed the Motion for Reconsideration, without a proof of service, on February 20, and noticed the hearing for March 18, 2024.  On March 15, the Court granted Plaintiff’s ex parte request to continue the hearing date on Plaintiff’s pending demurrers and motion to strike, and also rescheduled the hearing on the Motion for Reconsideration to March 26.  (See March 15, 2024 Minute Order.)  Nine court days prior to March 26 is March 13.  Defendants filed the opposition on March 15.

  To explain the delay, Defendants’ counsel points out that there is no proof of service indicating the motion for reconsideration was ever served and declares that she did not receive actual notice of Plaintiff’s motion for reconsideration until the March 15, 2024 hearing.  (Tatikian Decl. ¶ 2.)  In reply, Plaintiff provides a declaration demonstrating that she electronically served Defendants’ counsel, Thomas Citron, with the motion for reconsideration on February 20, 2024, via the e-filing service Plaintiff used for the filing.

Therefore, the Court finds that service was lawfully effectuated and there is no due process violation.  Notwithstanding, the Court also exercises its discretion and considers Defendants’ opposition, considering counsel’s representation that she had no actual notice that the motion had been filed until the March 15 hearing, and there being no evidence of prejudice to Plaintiff, as Plaintiff timely filed a reply.

LEGAL STANDARD

Under Code of Civil Procedure section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.  The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”  (Code Civ. Proc., § 1008, subd. (a).)  Where the statutory requirements are met, reconsideration should be granted; upon reconsideration, however, the court may simply reaffirm its original order.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) 

The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time[.]” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations &citations omitted; see New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 21 [on a motion for reconsideration, a party must present new or different facts, circumstances, or law, which the moving party “could not, with reasonable diligence, have discovered or produced” in connection with the original hearing].)

ANALYSIS

            Plaintiff moves for reconsideration of the Court’s February 7 Minute Order denying Plaintiff’s motion to file a supplemental complaint.  The “new information and circumstances” upon which Plaintiff bases her motion are (1) Plaintiff was previously unaware of the need to provide the Court sufficient facts, such as case numbers, to analyze her contentions that two other cases she filed were dismissed with instructions to re-file those claims in this case for purposes of consolidation (Mot. for Leave to File Supplemental Complaint at p. 5; Reply at p. 5.); and (2) Defendants filed an answer and an amended answer to the operative complaint after the Court’s order denying Plaintiff leave.

            Case Numbers

            As explained in the Court’s February 7, 2024 Minute Order, “Plaintiff’s newfound awareness or understanding of the legal and procedural requirements for properly filing her claims does not constitute ‘new facts[.]’”  (February 7, 2024 Minute Order at p. 6.)  Similarly, that Plaintiff did not understand she failed to provide the Court sufficient evidence to prevail on her motion until after she read the Court’s denial order also does not constitute “new information or circumstances” warranting reconsideration.

            In any event, upon reviewing case numbers BC685414 and 18STCV06997, the Court notes that both cases were dismissed for failure to prosecute because Plaintiff failed to serve Defendants.  The Court sees no evidence to support Plaintiff’s narrative that those cases were dismissed for the purpose of consolidation, with instructions for Plaintiff to re-file those causes of action in this case instead.  Plaintiff’s narrative also does not comport with the consolidation procedures outlined in Superior Court Local Rule 3.3(g) and Code of Civil Procedure section 1048, subdivision (a).  As such, the newly-provided case numbers do not constitute “new information” or “circumstances” warranting reconsideration.

            Prejudice

            Nor does the fact that Defendants answered the operative complaint after the Court’s ruling constitute “new information” or “circumstances” impacting the Court’s prior prejudice analysis. 

By way of background, the Court sustained Defendants’ demurrer and granted Defendants’ motion to strike as to the first amended complaint on December 6, 2022, giving Plaintiff 30 days’ leave to amend the twelfth cause of action as to Defendants Eisler Investments and West End Properties only, and to amend Plaintiff’s claim for injunctive relief.  (December 6, 2022 Minute Order at p. 10.)  Plaintiff contends she did timely submit a second amended complaint, which the clerk refused to file.  However, the second amended complaint Plaintiff submitted far exceeds the scope of the leave granted.  As such, Plaintiff did not timely file a second amended complaint in conformance with the Court’s December 6 order.

Plaintiff also moved for reconsideration of that order on December 16, which the Court denied on February 6.  That same day, Plaintiff moved for leave to amend the complaint. 

On February 3, Plaintiff also filed an appeal from an order entered on December 6, 2022, described as “An order granting Anti-SLAPP Motion to Strike (CA CCP 425.16) Attorney Fees at trial and appellate courts.”  On July 19, 2023, the appellate court dismissed the appeal. 

On October 23, 2023, the Court heard and denied Plaintiff’s motion for leave to amend the complaint, on both procedural and substantive grounds.  (See October 23, 2023 Minute Order.)  On January 10, 2024, Plaintiff moved to file a supplemental complaint, which the Court denied on February 7. 

Thus, Defendants’ delay in answering the operative complaint makes sense considering Plaintiff’s repeated attempts to amend and/or supplement the operative complaint.  In any event, Plaintiff did not seek an entry of default.  Thus, even if Defendants’ answer were technically untimely, Plaintiff has not been prejudiced.  And in the interim, the parties have continued to prepare for trial, submitting jury instructions, witness lists, trial exhibits, etc. and otherwise continue to prepare for trial.  Thus, the recent answer does not prejudice Plaintiff, or otherwise reduce the prejudice Defendants will face if Plaintiff is permitted to expand the causes of action from one to thirty-two on the eve of trial.

Therefore, Defendants’ recent answer also does not constitute new facts or circumstances warranting reconsideration.

CONCLUSION AND ORDER

            Therefore, finding no new facts or circumstances warranting reconsideration, the Court denies Plaintiff’s motion for reconsideration.

            The Clerk of the Court shall provide notice of the Court’s ruling.  

DATED:  March 26, 2024                                          ___________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court