1 O 2 3 4 5 6 7 United States District Court 8 9 Central District of California 10

11 ROSEMARIE MESA, Case № 2:21-cv-03550-ODW (MARx)

12 Plaintiff, ORDER GRANTING DEFENDANT 13 v. VICTOR LUIS MESA’S MOTION TO

DISMISS [36]

14 VICTOR LUIS MESA, et al., 15 16 Defendants. 17 18 19 20 I. INTRODUCTION 21 Defendant Victor Luis Mesa (“Defendant”) moves to dismiss the claims asserted 22 against him in Plaintiff Rosemarie Mesa’s First Amended Complaint. (See generally 23 Mot. Dismiss, ECF No. 36; First Am. Compl. (“FAC”), ECF No. 16.) As explained 24 below, the Court GRANTS Defendant’s Motion.1 25 26 27

28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 Plaintiff pleads few facts regarding her claims against Defendant. Plaintiff 3 alleges that on or about September 19, 2004, decedent Joseph Mesa, who was at the 4 time over sixty-five years old, sold real property located at 1213 W. “L” Street, 5 Wilmington, California, 90744 to Defendant Victor Luis Mesa for approximately 6 $90,000. (FAC ¶¶ 14–15.) Plaintiff further asserts that, at the time of sale, the property 7 had a market value of around $400,000. (Id. at ¶ 15.) Plaintiff finally alleges that she 8 did not discover the circumstances of the sale until April 5, 2021. (Id. at ¶ 16.) 9 On April 26, 2021, Plaintiff Rosemarie Mesa, as a personal representative for the 10 Estate of Joseph Mesa and as an individual, initiated this action against Defendant 11 Victor Luis Mesa and others. (Compl., ECF No. 1.) On August 4, 2021, Plaintiff filed 12 the operative First Amended Complaint, alleging fourteen causes of action, ten of which 13 are asserted against Defendant: (1) fraud by intentional misrepresentation; (2) fraud by 14 negligent misrepresentation; (3) intentional infliction of emotional distress; 15 (4) declaratory relief; (5) conspiracy to participate in racketeering and violation of the 16 RICO Act under 18 U.S.C. § 1962(d); (6) conspiracy against civil rights, 42 U.S.C. 17 § 1985(3); (7) interference with contractual relationship; (8) cancellation of 18 instruments; (9) quiet title; and (10) set aside fraudulent transfer. (See generally FAC.) 19 On September 3, 2021, Defendant Victor Luis Mesa filed a Motion to Dismiss as 20 to the claims against him. (See generally Mot.) A hearing on the Motion was scheduled 21 for October 4, 2021. (Id.) On September 13, 2021, Plaintiff filed a Notice of 22 Non-Opposition. (Notice of Non-Opp’n, ECF No. 39.) On September 17, 2021, 23 Defendant filed a Reply in reliance on Plaintiff’s Notice of Non-Opposition. (Reply, 24 ECF No. 40.) Subsequently, on September 25, 2021, Plaintiff filed an Opposition to 25 Defendant’s Motion. (Opp’n, ECF No. 41.) As explained below, Plaintiff’s filing of 26 her Notice of Non-Opposition and the untimely filing of her Opposition render 27 Defendant’s Motion unopposed. Accordingly, the Court GRANTS Defendant’s 28 Motion to Dismiss Plaintiff’s claims to the extent they are asserted against Defendant. 1 III. DISCUSSION 2 Under the Local Rules of the Central District of California, a plaintiff must file 3 an opposition to a motion to dismiss no later than twenty-one days prior to the hearing 4 date. C.D. Cal. L.R. 7-9. A plaintiff’s failure to file a timely opposition “may be 5 deemed consent to the granting . . . of the motion.” C.D. Cal. L.R. 7-12. See also, 6 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (holding that a court may dismiss an 7 action based on a party’s failure to comply with the court’s Local Rules). 8 Prior to dismissing an action pursuant to a local rule, courts must weigh: (1) the 9 public interest in expeditious resolution of cases, (2) the court’s need to manage its 10 docket, (3) the risk of prejudice to defendants, (4) public policy favoring disposition of 11 cases on the merits, and (5) the availability of less drastic measures. Ghazali v. Moran, 12 46 F.3d 52, 53 (9th Cir. 1995) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th 13 Cir. 1986)). However, “[e]xplicit findings with respect to these factors are not 14 required.” Ismail v. Cty. of Orange, SACV 10-00901 VBF (AJW), 2012 WL 12964893, 15 at *1 (C.D. Cal. Nov. 7, 2012) (citing Henderson, 779 F.2d at 1424; accord, Malone v. 16 U.S. Postal Serv., 833 F.2d 128, 129 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988)). 17 In Ghazali, the Ninth Circuit found these factors favored granting the motion to dismiss 18 when the plaintiff received notice of the motion, had ample opportunity to respond, yet 19 failed to do so. See Ghazali, 46 F.3d at 54. 20 Here, Defendant argues that Plaintiff’s allegations are insufficient to support her 21 claims. (See generally, Mot.) However, the Court need not, and does not, reach the 22 merits of the Motion because Plaintiff filed a Notice of Non-Opposition, which 23 Defendant relied upon in filing his Reply. (See generally Mot.; Reply at 2–3.) 24 Additionally, Plaintiff failed to timely oppose the Motion. Applying Local Rule 7-9 to 25 Plaintiff’s noticed hearing date of October 4, 2021, Plaintiff’s opposition was due to be 26 filed on September 13, 2021. See C.D. Cal. L.R. 7-9. Plaintiff’s September 25, 2021 27 Opposition was thus untimely. Consequently, the Court is inclined to consider the 28 motion as unopposed, and therefore grant, Defendant’s Motion. 1 A review of the Ghazali factors further supports granting the Motion. □□□□□□□□□□□ 2 || Notice of Non-Opposition explicitly and unambiguously states that Plaintiff elected not 3 || to oppose the Motion. (Notice of Non-Opp’n 1.) Plaintiff did not file a notice of error 4|| or make any attempt to retract her Notice of Non-Opposition. Consequently, in his 5 || Reply, Defendant relied on Plaintiff's choice to not oppose. (Reply 2-3.) Plaintiff also 6 || had ample opportunity to timely file an opposition, yet still filed her Opposition late, 7 || further depriving Defendant of a chance to reply. Thus, there is a significant risk of 8 | prejudice to Defendant if his Motion is not granted. Because Plaintiff did not file a 9 || timely opposition, and because Plaintiff instead filed a Notice of Non-Opposition, the 10 || Court deems Defendant’s Motion unopposed. 11 IV. CONCLUSION 12 The Court GRANTS Defendant’s Motion to Dismiss, (ECF No. 36). Thus, 13 | Plaintiffs action with respect to Defendant Mesa is DISMISSED without leave to 14 | amend. 15 16 IT IS SO ORDERED. 17 oe 18 January 7, 2022 Shaya 19 _OTISD.WRIGHT,.N 71 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28