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This case was last updated from Los Angeles County Superior Courts on 04/05/2019 at 20:41:51 (UTC).

LF ASSOC INC ET AL VS ROBERT ARENTZ

Case Summary

On 01/31/2014 LF ASSOC INC filed an Other - Arbitration lawsuit against ROBERT ARENTZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RAFAEL A. ONGKEKO. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6995

  • Filing Date:

    01/31/2014

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other - Arbitration

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RAFAEL A. ONGKEKO

 

Party Details

Plaintiffs and Petitioners

KELLER WILLIAMS REALTY- LOS FELIZ

KOSTREY JOHN

LF ASSOC INC.

Defendant and Respondent

ARENTZ ROBERT

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

BARTSCH DUANE L. ESQ.

 

Court Documents

SUMMONS

1/31/2014: SUMMONS

PETITION TO COMPEL ARBITRATION [CCP ? 1281.2]

1/31/2014: PETITION TO COMPEL ARBITRATION [CCP ? 1281.2]

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

2/20/2014: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

APPLICATION FOR PUBLICATIO

5/6/2014: APPLICATION FOR PUBLICATIO

NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

5/9/2014: NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

ORDER FOR PUBLICATION

5/19/2014: ORDER FOR PUBLICATION

DECLARATION OF PUBLICATION

7/1/2014: DECLARATION OF PUBLICATION

NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING ARBITRATION AND APPOINTING ARBITRATOR; ETC.

7/22/2014: NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING ARBITRATION AND APPOINTING ARBITRATOR; ETC.

Minute Order

8/19/2014: Minute Order

ORDER COMPELLING ARBITRATION AND APPOINTING ARBITRATOR

8/19/2014: ORDER COMPELLING ARBITRATION AND APPOINTING ARBITRATOR

NOTICE OF PETITION AND PETITION BY LF ASSOC, INC. D.B.A. KELLER WILLIAMS REALTY - LOS FELIZ AM) JOHN KOSTREY TO CONFIRM ARBITRATION AWARD; MEMORANDUM OF POINTS AND AUTHORITIES

11/5/2014: NOTICE OF PETITION AND PETITION BY LF ASSOC, INC. D.B.A. KELLER WILLIAMS REALTY - LOS FELIZ AM) JOHN KOSTREY TO CONFIRM ARBITRATION AWARD; MEMORANDUM OF POINTS AND AUTHORITIES

Minute Order

12/16/2014: Minute Order

NOTICE OF PETITION AND PETITION BY LF ASSOC, INC. D.B.A. KELLER WILLIAMS REALTY - LOS FELIZ AND JOHN KOSTREY TO CONFIRM ARBITRATION AWARD; MEMORANDUM OF POINTS AND AUTHORITIES

12/18/2014: NOTICE OF PETITION AND PETITION BY LF ASSOC, INC. D.B.A. KELLER WILLIAMS REALTY - LOS FELIZ AND JOHN KOSTREY TO CONFIRM ARBITRATION AWARD; MEMORANDUM OF POINTS AND AUTHORITIES

NOTICE OF RULING AT HEARING ON PETITION FOR JUDGMENT CONFIRMING ARBITRATION AWARD

12/18/2014: NOTICE OF RULING AT HEARING ON PETITION FOR JUDGMENT CONFIRMING ARBITRATION AWARD

Minute Order

1/14/2015: Minute Order

JUDGMENT ON ARBITRATION AWARD IN FAVOR OF PETITIONERS LF ASSOC., INC. D.B.A. KELLER WILLIAMS REALTY - LOS FELIZ AND JOHN KOSTREY AND AGAINST RESPONDENT ROBERT ARENTZ

1/14/2015: JUDGMENT ON ARBITRATION AWARD IN FAVOR OF PETITIONERS LF ASSOC., INC. D.B.A. KELLER WILLIAMS REALTY - LOS FELIZ AND JOHN KOSTREY AND AGAINST RESPONDENT ROBERT ARENTZ

NOTICE OF RULING AT HEARING ON PETITION FOR JUDGMENT CONFIRMING ARBITRATION AWARD

1/16/2015: NOTICE OF RULING AT HEARING ON PETITION FOR JUDGMENT CONFIRMING ARBITRATION AWARD

Minute Order

2/19/2015: Minute Order

7 More Documents Available

 

Docket Entries

  • 02/19/2015
  • at 08:30 AM in Department 73; Post-Arbitration Status Conference - Not Held - Advanced and Vacated

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  • 02/19/2015
  • Minute Order

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  • 01/30/2015
  • Abstract of Judgment - Civil and Small Claims; Filed by Creditor

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  • 01/30/2015
  • Abstract of Judgment - Civil and Small Claims; Filed by Creditor

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  • 01/30/2015
  • Abstract of Judgment - Civil and Small Claims; Filed by Creditor

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  • 01/16/2015
  • NOTICE OF RULING AT HEARING ON PETITION FOR JUDGMENT CONFIRMING ARBITRATION AWARD

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  • 01/16/2015
  • Notice of Ruling; Filed by LF Assoc, Inc. (Plaintiff); Keller Williams Realty- Los Feliz (Legacy Party); John Kostrey (Plaintiff)

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  • 01/14/2015
  • at 08:31 AM in Department 73; (Hearing on Petition; Petition granted) -

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  • 01/14/2015
  • JUDGMENT ON ARBITRATION AWARD IN FAVOR OF PETITIONERS LF ASSOC., INC. D.B.A. KELLER WILLIAMS REALTY - LOS FELIZ AND JOHN KOSTREY AND AGAINST RESPONDENT ROBERT ARENTZ

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  • 01/14/2015
  • Judgment; Filed by LF Assoc, Inc. (Plaintiff); Keller Williams Realty- Los Feliz (Legacy Party); John Kostrey (Plaintiff)

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21 More Docket Entries
  • 05/15/2014
  • Order; Filed by Plaintiff/Petitioner

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  • 05/09/2014
  • NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

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  • 05/06/2014
  • Application for Order to Publish; Filed by Plaintiff/Petitioner

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  • 05/06/2014
  • APPLICATION FOR PUBLICATIO

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  • 02/28/2014
  • at 08:30 AM in Department 73; Unknown Event Type

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  • 02/20/2014
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 02/20/2014
  • NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

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  • 01/31/2014
  • Petition; Filed by null

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  • 01/31/2014
  • SUMMONS

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  • 01/31/2014
  • PETITION TO COMPEL ARBITRATION [CCP 1281.2]

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Tentative Rulings

Case Number: BS146995    Hearing Date: March 29, 2021    Dept: 73

3/29/2021

Dept. 73

Rafael Ongkeko, Judge presiding

LF ASSOC, INC. D.B.A. KELLER WILLIAMS REALTY-LOS FELIZ; JOHN KOSTREY v. ROBERT ARENTZ (BS146995)

Counsel for co-petitioner/opposing party John Kostrey: Steven Revitz (Raiskin & Revitz)

Counsel for respondent/moving party Robert Arentz: David Almaraz (Alpert, Barr & Grant)

Other counsel (for co-petitioner LF Assoc., etc.): Duane Bartsch, Peter Haven (Bartsch & Haven)

Respondent’s Motion to Set Aside Default Judgment (filed 11/30/2020)

TENTATIVE RULING

The motion is denied.

Discussion

On January 31, 2014 Petitioners filed a petition to compel arbitration to initiate a contract-arbitration action based on claims that Defendant failed to pay a real estate broker’s commission to Petitioners. On May 6, 2014 Petitioners filed an application for an order for service by publication. On May 9, 2014 the clerk rejected the application. On May 15, 2014 Petitioners resubmitted their application with a proposed order, which the court granted on May 18, 2014. On Aug. 19, 2014 the case was then compelled to arbitration. On Nov. 4, 2014 Arbitrator David Milton (Judge ret.) issued an arbitration award in the amount of $28,555.19 in favor of Petitioners. On January 14, 2015 this court confirmed that award and entered judgment. Respondent was not present at the arbitration hearing or the hearing on the motion to confirm the arbitration award.

On November 30, 2020 Respondent filed a motion to vacate the default judgment on the grounds that service by publication was improper and, therefore, void. On December 22, 2020 Petitioners filed an opposition. On December 31, 2020 Respondent filed a reply.

Noting some procedural and service issues with the motion, the court continued the hearing to Feb. 26, 2021. On January 29, 2021 Respondent filed a proof of service of the moving papers, but did not serve counsel of record of co-petitioner LF Assoc. On February 19, 2021 Petitioner John Kostrey filed a surreply, which contains, among other things, a letter from counsel asking Respondent to inform the court that the Respondent’s unit was not yet sold at the time of publication. In that letter to Respondent’s counsel, Kostrey’s counsel states that his title company ran a title search on the property, which showed that Respondent’s trust still owned the property as of November 20, 2020. That title report, however, was not attached to the surreply.

At the hearing held on Feb. 26, 2021 the court was advised that Kostrey is an assignee of LF Assoc., but no substitution of attorney for LF Assoc. had been filed. The court adopted its tentative ruling requiring a proof of service of all parties’ papers on counsel of record (Bartsch & Haven) of co-petitioner LF Assoc., Inc dba Keller Williams Realty – Los Feliz. While notice of the continued hearing has been given to LF Assoc. via the Bartsch firm (now Bartsch Law Group), the court is still unsure whether all papers have been served on LF Assoc. Regardless, unless presented with contrary evidence, the court will deem LF Assoc. to have received substantial notice of these proceedings.

No other supplemental papers have been filed by any other party.

Analysis

When 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. 

(Cal. Civ. Proc. Code § 473.5(a)).

A “default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Under § 473(d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.”  (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) 

"A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article ...." (Cal. Civ. Proc. Code § 415.50(a)). “Section 415.50, authorizing service by publication, allows the court to acquire jurisdiction over a defendant who cannot be served personally or by substituted service under section 415.20 or 415.30, even after diligent effort.” (Olvera v. Olvera (1991) 232 Cal. App. 3d 32, 40). “Jurisdiction so acquired is constitutional.” (Id.) “However, it is recognized that such service is on many occasions unlikely to result in actual notice, and to some extent the same may be true of any form of substituted or constructive service.” (Id.) “Thus, section 473.5 reflects the understanding that if any form of service of summons does not result in actual knowledge, fundamental fairness may require that a subsequent default be set aside.” (Id.)

Here, Respondent argues that the default judgment, entered in 2015, should be set aside because service by publication was purportedly deficient. Respondent argues:

· After Petitioner filed their initial May 6, 2014 application for publication, on May 9, 2014 the clerk rejected that application because Petitioners had not checked the local post office for change of address information, submitted a form to the post office, returned the stamped form, provided a proposed order to the Court, and mailed a copy of the Summons and Petition to Compel Arbitration to Respondent’s last known address by first class mail.

· On May 15, 2014 Petitioners resubmitted their application, which still did not provide evidence that they cured all of the items checked on the rejection notice, yet on May 19, 2014 the court (Robert Harrison, “Judicial Officer”) still issued and entered an order authorizing service upon Robert Arentz by publication.

· The Petitioners’ declarations of due diligence are insufficient because:

o Petitioner was aware of a UPS mailbox for Respondent, but Petitioner never mailed a copy of the summons and complaint to that mailbox.

o Petitioners never attempted to serve the mailbox by substitute service after multiple attempts.

o There is no basis for the “three different locations” where Petitioners’ private investigator attempted service.

Accordingly, Respondent argues that Petitioners did not conduct a reasonable inquiry.

Petitioners respond as follows:

· Prior to filing the petition, Petitioners’ counsel sent a demand letter to Respondent to mediate the dispute on October 8, 2013.

· On October 30, 2013 counsel had a telephone conversation with Respondent informing him of the mediation, and Respondent said he would “think about it.”

· Respondent did not appear for mediation on January 17, 2014.

· On January 17, 2014 Petitioners’ counsel set a letter to Respondent at his last known address of 2700 Cahuenga Blvd., Unit 3206, Los Angeles, CA 90068.

· On January 31, 2014 Petitioners’ counsel personally spoke with Respondent and advised Respondent that Petitioners had filed a petition to compel arbitration, which would be served on Respondent with a notice of Acknowledgement of Receipt.

· On February 3, 2014 Petitioners sent a letter to Respondent at the Cahuenga address, which was posted and never returned as undelivered.

· Respondent never advised Petitioners’ counsel that he was no longer residing at the Cahuenga Address or that counsel should send correspondence at any other address.

· Respondent was served with other notices of the arbitration hearing, the hearing to confirm judgment, etc. by mail at the Cahuenga address, which were not returned as undeliverable.

· As part of the application for service by publication, in addition to Petitioners’ former counsel submitting a declaration regarding multiple service efforts, Petitioners also hired a private investigator who filed a declaration regarding service. The private investigator testified that she attempted to serve Respondent at five separate times at three different locations based on her investigation, including a public records search of Respondent’s last known address. Further, Petitioners’ counsel, after doing so, testified that he left a voice message for Respondent which stated that his firm hired a process server to serve Respondent and asking him to call counsel.

The court agrees with Petitioners.

First, the judgment is not void on its face. While Respondent argues Petitioners did not “fix” all of the items that the clerk checked off in initially rejecting the application, Respondent does not cite any authority that holds that the check-off boxes on the rejection form are absolute requirements in obtaining an order for service by publication. While checking with the post office for change of address information is a factor and may be circumstantial evidence of reasonable diligence, Respondent has not cited any law that absolutely requires those acts. Instead, the statute allows for service by publication when a party cannot be served with “reasonable diligence.” What constitutes reasonable diligence is an evidentiary factual question for the court to decide, as “Judicial Officer” (then Commissioner, now Judge) Harrison must have done in issuing the Order for Publication based on the facts before him. There is nothing in the record, on its face, that Judge Harrison’s doing so was in error.

Second, Respondent’s argument that Petitioners did not use reasonable due diligence is not supported by the evidence. Respondent argues that Petitioners knew that Respondent had a UPS mailbox, yet offer no evidence as to how Petitioners so knew. Further, Respondent testifies that he has “no recollection of Petitioners’ counsel ever advising me that a lawsuit had been filed…” Petitioners’ counsel expressly testified that he affirmatively advised Respondent that a lawsuit had been filed against him during a telephone call. Not remembering that something happened is not conclusive evidence that nothing happened. Further, and notably, there is no testimony by Respondent that, at the various times that Petitioners attempted service, Respondent actually did not reside at the Cahuenga address and/or that Respondent had not been staying at the hotel at which Petitioners’ private investigator attempted service. There is no testimony that Respondent expressly informed Petitioner that Respondent had moved, etc. There is no testimony from Respondent that he did not speak directly to Petitioner’s counsel, that he did not receive the voicemail from Petitioners’ counsel regarding service and the lawsuit, and/or any testimony that contradicts Petitioners’ counsel’s testimony. Finally, in their application for service by publication, Petitioners’ counsel explained the various times that counsel spoke to Respondent to inform him of the lawsuit/give him notice, the voicemail that he left for Respondent after service was attempted, and the multiple attempts to serve Respondent. Petitioner also hired a private investigator to make five attempts at three different locations based on that investigation. The court finds that, from this evidence, reasonable diligence can be found—i.e., this evidence, on its face, without weighing other facts, does not absolutely, categorically show that Petitioners did not act with reasonable diligence such that the judgment is void on its face.

Third, Respondent’s reliance on Olvera v. Olvera (1991) 232 Cal. App. 3d 32 and Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal. App. 4th 740 lacks merit.

· In Olvera, plaintiffs did not indicate that they had any means to find defendant nor did they attempt personal service. (Olivera, supra, at 42). The affidavit merely stated that, after speaking to defendant’s son, plaintiff did not know defendant’s whereabouts. (Id. at 35-36). Here, however, Petitioners did make multiple attempts to inform and give Respondent notice and personally serve Respondent. They directly spoke to him multiple times, and did, in fact, attempt personal service at his last known address (unlike Olvera), indeed, the subject property in the underlying residential listing agreement, and hired a private investigator.

· In Transamerica, the court found that Plaintiff intentionally or unintentionally falsified the application for order by publication. (Id. at 742-43). There, the record showed that Plaintiff knew that the Defendant was not a resident of California and that Plaintiff knew that Defendant had a post office box. (Id. at 742). However, Plaintiff did not attempt to serve him by mail because Plaintiff contended that Defendant’s address was unknown. (Id. at 743). Here, Petitioners did, in fact, serve notice of the petition and summons to Respondent at Respondent’s last known address. Further, there is no evidence that Petitioners knew of Respondent’s UPS box or other means to serve Respondent. Finally, Petitioners made multiple attempts to contact Respondent to give Respondent actual notice of their attempts to serve him and attempted to personally serve him.

In short, in both Olvera and Transamerica, service by publication occurred before attempts at personal service and/or service by mail had been made. Far more efforts to serve Respondent, both by personal service and by mail, occurred here.

Finally, the court finds that, in any event, the motion is untimely. As the court found, the judgment is not void on its face. Accordingly, as the motion was not made within two years of entry of judgment, it is untimely. (Cal. Civ. Proc. Code 473.5; Rogers v. Silverman (1989) 216 Cal. App. 3d 1114, 1121-1122). Even if the court were to infer every fact in Respondent’s favor, Respondent admittedly testified that he knew a judgment was entered against him in February 2020. Respondent did not file a motion to vacate the default judgment until November 30, 2020—over 180 days later. Although Respondent contends that there were Covid-19 related delays, there is no testimony as to any attempts to obtain hearing dates earlier and/or that Respondent acted diligently. Indeed, even if a hearing date was not available, Respondent still could have filed the motion, to be set at the court’s earliest available date (indeed, other counsel in other cases have been able to obtain hearing dates from February 2020 to November 2020).

The court does not find that Respondent has filed a motion to set aside the default judgment in a reasonably timely manner.

The motion is denied.

Notice of ruling by petitioner Kostrey.

Case Number: BS146995    Hearing Date: February 26, 2021    Dept: 73

2/26/2021

Dept. 73

Rafael Ongkeko, Judge presiding

LF ASSOCIATION, INC., et al. v. ROBERT ARENTZ (BS146995)

Counsel for co-petitioner/opposing party John Kostrey:  Steven Revitz (Raiskin & Revitz)

Counsel for respondent/moving party Robert Arentz:  David Almaraz (Alpert, Barr &  Grant)

Other counsel (for co-petitioner LF Assoc., etc.):  Duane Bartsch, Peter Haven (Bartsch & Haven)

Respondent’s Motion to Set Aside Default Judgment (filed 11/30/2020)

TENTATIVE RULING

Continue to _______________.  No proof of service by Kostrey and Arentz of each’s papers on counsel of record for co-petitioner LF Assoc., Inc. dba Keller Williams Realty- Los Feliz.

All proofs of service must be filed no later than five court days before the continued hearing.

Moving party to give notice of continued hearing date to all parties.

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