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Schurtz v. Paster

California Court of Appeals, Second District, Fourth Division
Sep 22, 2008
No. B201304 (Cal. Ct. App. Sep. 22, 2008)

Opinion


HUGH D. SCHURTZ, Plaintiff and Appellant, v. SUSAN KAYE PASTER, Defendant BARRY PASTER, Third Party Claimant and Respondent. B201304 California Court of Appeal, Second District, Fourth Division September 22, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from an order of the Superior Court for Los Angeles County No. PC040386, Barbara M. Scheper, Judge. Affirmed.

Hugh D. Schurtz, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant.

Moss, Levitt & Mandell, Ronald J. Mandell; Eisenberg Raizman Thurston & Wong and Sheldon Eisenberg for Third Party Claimant and Respondent.

WILLHITE, J.

This case involves an attempt by plaintiff and appellant Hugh D. Schurtz to enforce a criminal restitution order under the Enforcement of Judgments Law, Code of Civil Procedure sections 680.010 et seq. The trial court denied Schurtz’s application for an order for sale of a dwelling under Code of Civil Procedure section 704.750, on the ground that the Probate Code, rather than the Enforcement of Judgments Law, applied because the judgment debtor was deceased; therefore the restitution order is only payable in the course of administration of the deceased’s estate. The trial court was correct. Accordingly, we affirm the order denying Schurtz’s application.

BACKGROUND

Schurtz was the victim of an assault with a firearm committed by Susan Kaye Paster in 1994. As part of a negotiated settlement, Susan pleaded no contest to a violation of Penal Code section 245, subdivision (a)(2), and admitted a gun use allegation. She was granted probation on condition that she spend a year in jail, and was ordered to pay restitution to Schurtz. The criminal court did not set an amount of restitution at the time of the probation and sentencing hearing in March 1995. Instead, the court noted that Schurtz had a civil lawsuit pending against Susan, and ordered her to “pay restitution such as is ordered pursuant to civil judgment.”

To avoid confusion, we will refer to Ms. Paster and the Third Party Claimant, Barry Paster, by their first names.

An additional charge of attempted murder (Pen. Code, §§ 664/187) was dismissed as part of the negotiated settlement.

In August 1998, Schurtz obtained a civil judgment against Susan in the amount of $103,838.66, plus interest. There is no evidence in the record regarding whether any effort was made to enforce the civil judgment. It also appears that nothing was done after the civil judgment was entered in 1998 to amend the restitution order in the criminal case to reflect the amount of restitution ordered.

There are references in one of the briefs filed in the trial court in the instant action that suggest a reason why Schultz might not have attempted to enforce the civil judgment. Susan and her husband Barry filed for Chapter 7 bankruptcy in 1995 and an order of discharge was entered in the bankruptcy case in 1997. According to one of the briefs (which makes reference to exhibits that were supposed to be attached to supporting declarations but are not included in the record on appeal), Schultz sought relief from the automatic stay imposed under the bankruptcy law, to allow him to pursue his civil action. According to the brief, the bankruptcy court granted Schultz’s request, with the condition that any judgment obtained in that civil action would be recoverable only against the proceeds of insurance policies.

Susan died on September 26, 2003. Two years after her death, in the fall of 2005, Schurtz sought the assistance of the District Attorney’s office and the Ombudsman for the County of Los Angeles to complete the process necessary to enforce the restitution order. In August 2006, the District Attorney’s office submitted to the criminal court a request for an order for restitution and an application for an abstract of judgment in the amount of $103,838.66 plus interest. The criminal court signed the order for restitution on August 23, 2006, and the clerk of the court issued the abstract of judgment. The order for restitution and the abstract of judgment were recorded in the Los Angeles County Recorder’s Office on August 31, 2006.

Schurtz sought and obtained a writ of execution on January 23, 2007; the document bears the case number for the criminal case. On February 15, 2007, the Los Angeles County Sheriff’s Department notified Schurtz that it had levied on property that is a dwelling, and informed him that he must apply to the court for an order for sale of a dwelling under Code of Civil Procedure section 704.750. Schurtz filed the application for such an order in the criminal court on March 1, 2007. It appears that the criminal court rejected his application because it was filed in the wrong court.

The record is not entirely clear, but at a hearing held in the criminal case on August 31, 2007, the court indicated that proceedings to enforce the restitution order were not within the scope of duties of a criminal court.

Schurtz then initiated the instant action on March 16, 2007 by filing a Request for Enforcement of Order for Restitution/Judgment Pursuant to Penal Code Section 1214 against Susan (even though she was deceased), and refiling his application for an order for sale of a dwelling. In his declaration in support of his application, Schurtz stated that the dwelling at issue was owned by Susan, although he noted that on September 11, 2003, Susan conveyed the property to herself and her husband, Barry, as community property with right of survivorship.

On April 26, 2007, the trial court in the instant action issued an order to show cause why an order for sale should not be made in accordance with Schurtz’s application. Barry filed a response to the order to show cause, as the owner and Third Party Claimant of the property at issue. He argued, among other things, that Schurtz’s application must be denied because the restitution order was against Susan only, and neither Susan nor her estate has any right, title, or interest in the property, because title passed to him upon Susan’s death in 2003. Barry supported his response with his declaration that purported to attach several exhibits, none of which is included in the record on appeal. However, he stated in his declaration that he and Susan were married in 1985, that he acquired title to the property at issue in 1999, that title to the property changed several times, but that at the time of Susan’s death in 2003, he and Susan held title to the property as community property with right of survivorship.

The trial court denied Schurtz’s application in a written ruling. The court provided a summary of the events in the criminal case, the earlier civil action, and the present case, and expressed some concerns regarding whether the criminal court properly amended Susan’s sentence to include the amount of restitution ordered. The court’s denial of the application was not, however, based upon those concerns. Rather, the court found that Schurtz could not proceed under the Enforcement of Judgments Law because Susan was deceased, and the property was not subject to a judgment lien at the time of her death because the abstract of judgment was not recorded until three years after her death. Therefore, the court denied Schurtz’s application brought under Code of Civil Procedure section 704.750. Schurtz timely filed a notice of appeal from the court’s order.

The court noted that a criminal defendant has the right to a hearing before the judge to dispute the determination of the amount of restitution, but that no hearing was held at the time the criminal court signed the order of restitution, and Susan (who was deceased) was not notified. The court also noted that the request for the order of restitution falsely stated that Susan was informed of her right to a judicial determination of the amount of restitution and stipulated to the restitution to be ordered.

DISCUSSION

Under the California Constitution and the Penal Code, any person convicted of a crime shall be ordered to pay restitution to any victim who suffers losses as a result of the crime. (Cal. Const., art. I, § 28, subd. (b); Pen. Code, § 1202.4, subd. (f).) An order to pay restitution is deemed a money judgment and “shall be fully enforceable by a victim as if the restitution order were a civil judgment, and enforceable in the same manner as is provided for the enforcement of any other money judgment.” (Pen. Code, § 1214, subd. (b); see also Pen. Code, § 1202.4, subd. (a)(3)(B) [restitution order “shall be enforceable as if the order were a civil judgment”].)

Enforcement of a civil judgment in California ordinarily is governed by the Enforcement of Judgments Law, Code of Civil Procedure sections 680.010 et seq. (hereafter, the EJL). (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.) However, the EJL provides that after the judgment debtor’s death, enforcement is governed by the Probate Code, and not by the EJL. (Code Civ. Proc., § 686.020.) Under the Probate Code, “after the death of the decedent all money judgments against the decedent . . . are payable in the course of administration and are not enforceable against property in the estate of the decedent under the Enforcement of Judgments Law.” (Prob. Code, § 9300.)

In this case, Schurtz’s application sought to enforce the restitution order under the EJL rather than under the Probate Code. Although there is an exception to the exclusive jurisdiction of the Probate Code over enforcement of money judgments against deceased judgment debtors, it does not apply in this case. Under Probate Code section 9303, enforcement may proceed under the EJL if enforcement is sought against property that was subject to an execution lien at the time of the judgment debtor’s death. (See also 14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, § 627, p. 713; 8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, § 40, p. 82.) A judgment lien on real property is created by recording an abstract of judgment with the county recorder. (Code Civ. Proc., § 697.310, subd. (a).) The abstract of judgment in this case did not exist until three years after Susan’s death. If the abstract of judgment was not in existence during Susan’s life, it could not, a fortiori, have been recorded before her death and created a lien on the property at issue. Therefore, the trial court correctly denied Schurtz’s application on the ground that the EJL does not apply.

Schurtz contends in his reply brief on appeal that the abstract of judgment was issued on October 5, 1994. He is incorrect. The document he cites is the minute order from the probation and sentencing hearing in the criminal case, and is dated March 13, 1995. Although the order includes the order that Susan pay restitution “pursuant to civil judgment,” it is not an enforceable restitution order because it does not state the amount ordered to be paid. (See People v. Guardado (1995) 40 Cal.App.4th 757, 762.) A restitution order stating the amount ordered to be paid was not entered by the criminal court until August 2006, three years after Susan’s death.

We emphasize the limited nature of the trial court’s ruling and our affirmance. The trial court did not, as Schurtz contends on appeal, reverse the criminal court’s restitution order; it merely declined to enforce it under the EJL, a ruling we affirm on appeal. Schurtz raises numerous issues on appeal, such as whether Susan’s and Barry’s bankruptcy proceeding discharged the debt owed, whether Susan and Barry engaged in fraudulent transfers of the property at issue, whether the criminal court had jurisdiction to modify the restitution order after Susan’s death, or whether the restitution order is payable from Susan’s life insurance proceeds. We need not -- and do not -- decide any of those issues.

DISPOSITION

The order is affirmed. Each party shall bear his own costs on appeal.

We concur: EPSTEIN, P. J. SUZUKAWA, J.


Summaries of

Schurtz v. Paster

California Court of Appeals, Second District, Fourth Division
Sep 22, 2008
No. B201304 (Cal. Ct. App. Sep. 22, 2008)
Case details for

Schurtz v. Paster

Case Details

Full title:HUGH D. SCHURTZ, Plaintiff and Appellant, v. SUSAN KAYE PASTER, Defendant

Court:California Court of Appeals, Second District, Fourth Division

Date published: Sep 22, 2008

Citations

No. B201304 (Cal. Ct. App. Sep. 22, 2008)