On 10/15/2013 STARA ORIEN filed a Property - Other Real Property lawsuit against MISTA L LUTZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DEIRDRE HILL and ROBERT B. BROADBELT. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ROBERT B. BROADBELT
LUTZ MISTA L.
DOES 1 THROUGH 25
MORTGAGEIT INC. A NEW YORK CORPORATION
HOWELLS RUSSELL A.
FIRST FINANCIAL CREDIT UNION A CALIFORNIA
DEUTSCHE BANK NATIONAL TRUST COMPANY
FIRST FINANCIAL CREDIT UNION
DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR INDYMAC IMSC MORTGAGE LOAN TRUST 2007
SCHORR ZACHARY ESQ.
MILLAR HODGES & BEMIS
HOUSER & ALLISON APC
MILLAR RICHARD W. JR. ESQ.
MILLAR RICHARD W JR
HOUSER ERIC D
MILLAR RICHARD W. JR
PFAU MATTHEW G
10/15/2013: COMPLAINT FOR: 1. PARTITION OF REAL PROPERTY LOCATED AT 7313 EARLDOM AVENUE PLAYA DEL REY, CALIFORNIA. 2. PARTITION OF REAL PROPERTY LOCATED AT 8033 AGNEW AVENUE LOS ANGELES, CALIFORNIA.
1/12/2015: PLAINTIFF STARA ORIEN?S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS MISTA LUTZ AND RUSSELL A. HO WELLS
1/12/2015: PLAINTIFF STARA ORIEN?S SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT
6/3/2015: PLAINTIFF STARA ORIEN'S REPLY TO DEFENDANTS' OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT
6/3/2015: PLAINTIFF STARA ORIEN'S REPLY TO DEFENDANTS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS MISTA LUTZ AND RUSSELL A. HOWELLS; SUPPLEMENTAL DECLARATION OF ORIEN IN SUPPORT OF MOTION
3/23/2016: ORDER GRANTING APPLICATION FOR SALE OF PROPERTIES
12/17/2019: Opposition - OPPOSITION TO NOTICE OF MOTION FOR AWARD OF ATTORNEY'S FEES ON APPEAL
12/23/2019: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES MOVANTS REPLY MEMORANDUM
4/10/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
7/16/2018: NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL (CIVIL)
1/31/2019: Notice - Notice of case reassignment
11/1/2013: PROOF OF SERVICE SUMMONS -
5/20/2014: PLAINTIFF STARA ORIEN'S NOTICE OF ERRATA RE FILING OF REQUEST FOR ENTRY OF DEFAULT; DECLARATION OF ZACHARY D. SCHORR
1/12/2015: DECLARATION OF STARA ORIEN IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS MISTA LUTZ AND RUSELL A. HOWELLS
5/22/2015: NOTICE OF ORDER
9/9/2015: OPPOSITIONS TO PROPOSED INTERLOCUTORY JUDGMENT FOR PARTITION BY SALE
7/6/2016: DECLARATION OF STARA ORIEN IN SUPPORT OF PLAINTIFF STARA ORIEN'S MOTION FOR ATTORNEY'S FEES
8/31/2016: NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)
Hearing01/27/2021 at 10:00 AM in Department 49 at 111 North Hill Street, Los Angeles, CA 90012; Hearing - Other to determine enforceability of the judgment lien by Chelese ConwayRead MoreRead Less
DocketProof of Service by Mail; Filed by Chelese Conway (Legacy Party)Read MoreRead Less
DocketNotice of Change of Firm Name; Filed by Mista L. Lutz (Defendant); Russell A. Howells (Defendant)Read MoreRead Less
DocketNotice (No Position on Lien Claim of Chelese Conway); Filed by Mista L. Lutz (Defendant); Russell A. Howells (Defendant)Read MoreRead Less
Docketat 3:54 PM in Department 49; Ruling on Submitted MatterRead MoreRead Less
DocketMinute Order ( (Ruling on Submitted Matter)); Filed by ClerkRead MoreRead Less
DocketOrder (RULING); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 12/04/2020); Filed by ClerkRead MoreRead Less
Docketat 08:31 AM in Department 49; Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) - Held - Taken under SubmissionRead MoreRead Less
DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473))); Filed by ClerkRead MoreRead Less
DocketNotice; Filed by Stara Orien (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Stara Orien (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketORDER TO SHOW CAUSE HEARINGRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketOSC-RE Other (Miscellaneous); Filed by ClerkRead MoreRead Less
DocketCOMPLAINT FOR: 1. PARTITION OF REAL PROPERTY LOCATED AT 7313 EARLDOM AVENUE PLAYA DEL REY, CALIFORNIA. 2. PARTITION OF REAL PROPERTY LOCATED AT 8033 AGNEW AVENUE LOS ANGELES, CALIFORNIA.Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Stara Orien (Plaintiff)Read MoreRead Less
Case Number: BC524339 Hearing Date: November 30, 2020 Dept: 49
Superior Court of California
County of Los Angeles
Mist L. Lutz, et al.,
Hearing Date: November 30, 2020
Department 49, Judge Stuart M. Rice
(1) Lien Creditor Chelese Conway’s Motion to Vacate Dismissal
Moving Party: Lien Creditor Chelese Conway
Responding Party: Plaintiff Stara Orien
Ruling: The March 25, 2020, order of dismissal will be discussed after the parties meet and confer in advance of the November 30 hearing.
The Nevada Judgment and Stipulation for Final Distribution
On September 19, 2014, Chelese Conway (“Chelese”) filed an action in the Eighth Judicial District in Clark County, Nevada (the “Nevada Action”). A decision was issued in favor of Chelese, and against Plaintiff Stara O’Brien (“Plaintiff”), on May 11, 2016, in the amount of $113,081.30. (Motion Exh.1.) On July 21, 2017, Plaintiff filed an appeal in the Nevada Action. On May 15, 2019, the Nevada Supreme Court upheld the May 11, 2016, judgment as final. (Id. Exh. 2.)
On October 20, 2017, Chelese filed an Application for Entry of Judgment on Sister-State Judgment in LASC Case BC171301. Judgment was entered thereon on December 11, 2017. On January 19, 2018, Chelese filed her Notice of Entry of Sister-State Judgment. (Motion Exh. 4.)
On July 20, 2018, Chelese filed a Notice of Lien in the present action. While Chelese asserts that “This Notice was mailed to Ms. Orien’s known address¿350 Quorum Drive, Trophy Club, Texas 76262¿on July 30, 2018,” there is no proof of service. (Motion 3:5-7.) The proof of service page on the Notice of Entry of Judgment on Sister-State Judgment was not completed. (Id. Exh. 5.) The purported “proof of service” is a “Stamps Print Receipt,” reflecting a USPS shipment to Plaintiff’s address on July 30, 2018, without indication of what was included in the shipment.
On July 19, 2019, Defendants Lutz and Howell in this action filed a Motion to Distribute Proceeds of Partition Sale, and filed a Motion for Attorney’s Fees on July 23, 2019. At the August 22, 2019, hearing, this Court granted in part the motion to distribute proceeds and ordered the immediate release of $350,000. The Court continued the motion as to the remainder to January 2, 2020.
On December 6, 2019, Plaintiff filed a Motion to Strike Notice of Lien against Chelese’s Nevada Judgment lien, which was also set for hearing on January 2, 2020. On January 2, 2020, while the Court decided on Defendants, Ms. Lutz and Mr. Howell’s Motions, the Court deferred ruling on Plaintiff’s Motion to Strike Notice of Lien to “allow lien claimant, Conway, the opportunity to serve Plaintiff with notice of sister state judgment and related papers” and encouraged Chelese and Ms. Orien to “meet and confer as to the amount of the alleged Conway judgment and lien.” (1/6/20 Notice of Ruling, ¶ 1.) The hearing was rescheduled to March 24, 2020.
On March 20, 2020, this Court continued the scheduled hearings to June 5, 2020, due to court closure in connection with the Coronavirus outbreak.
On March 25, 2020, the Court issued an order of final distribution, grating the motion of Defendants Howells and Lutz to distribute the remaining proceeds “of the partition sale currently held by West Coast Escrow in the total amount of $292,141.69 is granted and shall be distributed as follows: to Stara Orien, the sum of $17,431.95; to Russell A. Howells, the sum of $137,354.87; to Mista L. Lutz, the sum of $137,354.87.” (3/25/20 Order ¶ 3.)
Chelese filed the present motion on July 29, 2020.
Lien Claimant’s Motion to Reopen
Lien holder Chelese now moves the Court for an order reopening the matter of Orien v. Lutz, et al, Case Number BC524339, in which Chelese is a lien claimant and legacy party, and order Plaintiff to refund the $17,431.95 distributed to her.
First, Chelese contends that because she was not served a copy of the stipulation, it is void per California Rule of Court 3.1390. CRC 3.1390 provides as follows: “[a] party that requests dismissal of an action must serve on all parties and file notice of entry of the dismissal.” Indeed, the stipulation was signed by Defendants, and served only on Plaintiff. Chelese contends that “[b]ecause Chelese was never afforded the opportunity to sign or oppose this stipulation and she was not even served a copy of it, the stipulation to dismiss is hereby void, and this Court needs to reopen the case immediately.” (Motion 10:2-5.)
Second, Chelese argues that because the stipulation to dismiss was done without prejudice, the case may be reopened. Chelese also contends that because the order was obtained through Plaintiff’s fraud and misrepresentation, Chelese may request that the case be reopened even should it have been dismissed with prejudice. Specifically, Plaintiff “was fully aware the sister-state judgment with Chelese had not yet been resolved as she (1) filed an Opposition as late as February 28th (2) repeatedly evaded service of Chelese’s Notices of Liens (3) conferred with Chelese’s counsel in January and February 2020 to resolve the judgment and (4) did not issue any settlement to Chelese or her counsel.” (Motion 10:19-23.)
Finally, Chelese contends that this Court ought to reclaim the disbursed funds from Plaintiff to remedy the injustice caused.
As a preliminary matter, there is still no evidence before the Court that the Notice of Lien or that the Notice of Entry of Sister-State Judgment were ever served on Plaintiff. (Motion Exh. 5.) There is no proof of service attached to either document, and the proof of service page of the Notice of Entry of Judgment on Sister-State Judgment is blank. Chelese attaches to her motion what is seemingly a printout from a USPS tracking page which reflects that an envelope was shipped from Chelese’s counsel to Plaintiff’s address on July 30, 2018. (Id. Exh. 6.) This evidence is insufficient to demonstrate service and fails to even state what was inside the envelope shipped. As referenced above, Plaintiff declares that she was not served with said documents. (Pl. Decl. ¶ 11.)
On January 2, 2020, this Court continued hearings “to allow lien claimant, Conway, the opportunity to serve Plaintiff with notice of sister state judgment and related papers.” (1/2/2020 Ruling ¶ 1.) However, it appears that Chelese failed to do so. The Court has already acknowledged these issues, albeit in a tentative ruling, where the Court tentatively ruled that
[t]he blank proofs of service filed by Conway and plaintiff's assertion that she was not served with the subject documents raises doubt as to whether plaintiff received proper notice. Although failure to provide notice is not fatal to either the judgment or the lien (see Magalnick, 98 Cal.App.3d at 759; Code Civ. Proc. § 708.410, subd. (c)), in an abundance of caution, and to ensure plaintiff has the opportunity to contest the lien in accordance with Code of Civil Procedure section 708.450, et seq., Conway is ordered to properly serve plaintiff with the notice of entry of judgment, as required under section 1710.30, file the corresponding proof of service (properly filled in) and to serve her notice of lien, and file that notice along with a proper proof of service.
(1/2/2020 Ruling, Exh. 1.)
Although the hearing was continued, and said tentative ruling was not adopted, the order continuing the hearing specifically to allow Chelese to properly serve the papers on Plaintiff. She has not shown proof of doing so.
Furthermore, Chelese was ordered to give notice of the ruling. Plaintiff declares that she never received as such. (Pl. Decl. ¶ 11.) However, Chelese submits proof of service as Exhibit 8, which reflects that “Notice of Rulings” were served on Plaintiff on January 6, 2020, by mail and electronic service. (Motion Exh. 8.)
Additionally, attached as Exhibit 12 to the motion is a Notice of Entry of Judgment on Sister-State Judgment. Although the proof of service is filed, it is not signed, and the Notice reflects that it was not received by the Court. The remainder of the exhibits are various USPS certified mail receipts. However, Chelese has not combined a proper Notice of Lien and Entry of Judgment with an appropriate notice of service.
However, the lack of service is not dispositive of this issue. Pursuant to Code Civ. Proc. § 708.410(c),
[a]t the time of the filing under subdivision (b) or promptly thereafter, the judgment creditor shall serve on all parties who, prior thereto, have made an appearance in the action or special proceeding a copy of the notice of lien and a statement of the date when the notice of lien was filed in the action or special proceeding. Service shall be made personally or by mail. Failure to serve all parties as required by this subdivision does not affect the lien created by the filing under subdivision (b), but the rights of a party are not affected by the lien until the party has notice of the lien.
Thus, although Chelese’s non-service of the Notice of Lien and Notice of Entry of Sister-State Judgment do not affect the lien, Plaintiff’s rights are not affected by the lien until Plaintiff has notice thereof.
Nevertheless, on March 25, 2020, the Court ordered that “[t]he case is dismissed without prejudice based on the agreement between the parties addressing all outstanding issues.” (3/25/20 Order 2:22.) If the stipulation is deemed a request for dismissal, then it was required to be served on all parties in this action. Chelese, as a lien claimant, was a party to this action. However, the stipulation was served only on Plaintiff. The stipulation provided that “[t]he parties having reached a settlement of their differences and having executed a settlement agreement resolving all issues as between them in the above-entitled action,” took off calendar the motions to tax costs and for attorney’s fees and granted the motion for distribution of proceeds of the partition sale. (3/25/20 Stipulation 1:2-4.)
Code Civ. Proc. § 708.440(a) provides that “unless the judgment creditor's money judgment is first satisfied or the lien is released, the judgment recovered in the action or special proceeding in favor of the judgment debtor may not be enforced by a writ or otherwise, and no compromise, dismissal, settlement, or satisfaction of the pending action or special proceeding or the judgment procured therein may be entered into by or on behalf of the judgment debtor, without the written consent of the judgment creditor or authorization by order of the court obtained under subdivision (b).”
Pursuant to Code Civ. Proc. § 708.430(b), “[f]or the purposes of Sections 708.450 and 708.470, a judgment creditor shall be deemed to be a party to the action or special proceeding even though the judgment creditor has not become a party to the action or proceeding under subdivision (a).” Chelese was a party to this action as a lien creditor on the judgment.
Here, the stipulation was apparently not served on Chelese, nor did Chelese provide consent to dismissal of the action. As such the stipulated dismissal and March 25, 2020, order of dismissal may be determined to be void for failure to comply with Code Civ. Proc. § 708.450(a). The parties are ordered to meet and confer and address these issues with the Court at the November 30th hearing.
Date: November 30, 2020
Honorable Stuart M. Rice
Judge of the Superior Court
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