Judge: Armen Tamzarian, Case: 20STCV26552, Date: 2023-03-17 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 20STCV26552    Hearing Date: March 17, 2023    Dept: 52

Plaintiff Florence Fleming aka Bo Fleming’s Motion for Appointment of a Receiver to Manage and Sell Real Property and for Related Injunctive Relief

Plaintiff Florence Fleming aka Bo Fleming moves the court to appoint a receiver to manage and sell real property at 4460 Wilshire Blvd., No. 704, in Los Angeles and for an injunction prohibiting defendant John Evangelista from interfering with the sale.

Receivership

A court may appoint a receiver “[i]n an action… of any party whose right to or interest in the property … is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.”  (CCP § 564(b)(1).)  Courts may also appoint a receiver “[i]n all other cases where necessary to preserve the property or rights of any party.”  (CCP § 564(b)(9).)  “A receiver may, pursuant to an order of the court, sell real or personal property in the receiver’s possession.”  (CCP § 568.5.)

 “The power of a court to appoint a receiver is a delicate one, and is to be exercised with caution lest injury be done to the parties and their properties.  [Citation.]  The remedy is an extraordinary and harsh one, to be allowed cautiously and only where less onerous remedies would be inadequate or unavailable.”  (Cohen v. Herbert (1960) 186 Cal.App.2d 488, 495.)  “The appointment of a receiver is a drastic remedy, may involve unnecessary expense and hardship and courts carefully weigh the propriety of such appointment in exercising their discretion to appoint a receiver particularly if there is an alternative remedy.”  (Hoover v. Galbraith (1972) 7 Cal.3d 519, 528.)  “‘Receivers are often legal luxuries, frequently representing an extravagant cost to a losing litigant.  When it appears that no reasonably certain benefit will result to one litigant, and a distinct disadvantage will result to another, courts should weigh carefully the propriety of appointing a receiver.’ ”  (City and County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 744, alterations omitted.)    

Plaintiff does not justify the extreme remedy of appointing a receiver to sell the property.  Plaintiff argues doing so will benefit those interested in the property because “it stops the accrual of expenses on the property including mortgage, insurance, taxes, and HOA fees.”  (Memo, p. 4.)  A trustee’s sale by former defendant JP Morgan Chase Bank is set for April 4, 2023.  (Simpkins Decl., ¶ 4.)  That sale will stop the accrual of expenses.  Appointing a receiver will cause further delay.  A receiver’s “sale is not final until confirmed by the court.”  (CCP § 568.5.)  Appointing a receiver will also cause additional expenses.  Plaintiff nominates Kevin A. Singer to be the receiver.  His company charges hourly rates of up to $295 hourly for work by various employees.  (Singer Decl., ¶ 6.)    

Plaintiff does not show that appointing a receiver is reasonably certain to benefit her or other parties.  Plaintiff implies (without supporting evidence) that selling the property on the open market will preserve the property’s value.  Assuming that is true, plaintiff provides no evidence of how much less the property is likely to sell for at the pending trustee’s sale.  Furthermore, plaintiff does not hold title to the property, though she asserts a quiet title cause of action.

On the other hand, appointing a receiver will interfere with defendant JPMorgan Chase Bank N.A.’s right to recover the debt owed to it.  “The subject loan has been in default for over three years.”  (Foroutan Decl., ¶ 19.)  Such interference is particularly unfair because JPMorgan Chase already won judgment of dismissal, which was affirmed by the Court of Appeal.

Injunction

Plaintiff’s motion also seeks an injunction to “enjoin Defendant Evangelista from interfering with the sale.”  “In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction.”  (Butt v. State of California (1992) 4 Cal.4th 668, 677–678.)  Plaintiff’s memorandum of points and authorities, however, does not address or attempt to meet the legal standard for a preliminary injunction. 

Moreover, the order plaintiff seeks is too vague to be enforceable.  “ ‘An injunction must be sufficiently definite to provide a standard of conduct for those whose activities are to be proscribed, as well as a standard for the court to use in ascertaining an alleged violation of the injunction.’ ”  (People ex rel. Gascon v. HomeAdvisor, Inc. (2020) 49 Cal.App.5th 1073, 1082.)  An order prohibiting “interfering with the sale” would not sufficiently define the conduct enjoined.

Disposition

            Plaintiff Florence Fleming aka Bo Fleming’s motion to appoint a receiver and for an injunction is denied.