Judge Curtis A. Kin, Case Number: 23STCV14729, Date: 2024-04-11 Tentative Ruling

Judge: Curtis A. Kin, Case: 23STCV14729, Date: 2024-04-11 Tentative Ruling

Case Number: 23STCV14729 Hearing Date: April 11, 2024 Dept: 86

MOTION FOR APPOINTMENT OF RECEIVER

Date: 4/11/24 (1:30 PM)

Case: Kwon Whan Cook v. Yun Ja Kim et al. (23STCV14729)

TENTATIVE RULING:

The Motion for Appointment of Receiver and Temporary Restraining Order filed by Plaintiff Kwon Whan Cook, through Guardian ad Litem Scott Cook, is DENIED.

As a preliminary matter, based on the hearing date of April 11, 2024, the deadline to serve and file oppositions was March 26, 2024. (CCP § 1005(b).) Defendant Yun Ja Kim filed an opposition on March 29, 2024. Defendants Family-in-Love, LLC and Hye Jung Kang filed an opposition on March 28, 2024. Despite the untimely oppositions, plaintiff was able to file a substantive opposition. Accordingly, the Court exercises its discretion and considers the oppositions. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

Plaintiff’s requests for judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

All evidentiary objections are OVERRULED.

Pursuant to CCP § 564(b)(1) and (b)(9), plaintiff seeks the appointment of a receiver with respect to commercial real properties located at 1308-1310 ½ S. Van Ness Ave., Los Angeles, CA 90019 (“Van Ness Property”) and 8432 & 8440 S. Broadway, Los Angeles, CA 90003 (“Broadway Property”), as well as a preliminary injunction in aid of such receiver (though plaintiff erroneously entitles the instant motion as one seeking a temporary restraining order). Plaintiff alleges that defendant Yun Ja Kim took advantage of plaintiff’s lack of capacity to transfer the subject properties out of his possession and into the possession of Kim and her children or agents. The receiver would operate the properties and collect rents.

Under CCP § 564(b), a receiver may be appointed by the court in which an action is pending “on the application of any party whose right to or interest in the property or fund, or the proceeds of the property or fund, 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).) A receiver may also be appointed “where necessary to preserve the property or rights of any party.” (CCP § 564(b)(9).)

A receiver should not be appointed unless absolutely essential, because no other remedy will suffice. (City & County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 745.) This is so because the appointment of a receiver is recognized as a drastic, time consuming, expensive, and potentially unjust remedy to be used as a final resort. (See Weil & Brown, Civ. Proc. Before Trial § 9:743 et seq.; see also Alhambra-Shumway Mines v. Alhambra Gold Mine Corp. (1953) 116 Cal.App.2d 869, 873.) “The appointment of a receiver is a drastic remedy and is one which should not be invoked unless there is an actual or threatened cessation or diminution of the business.” (In re Jamison Steel Corp. (1958) 158 Cal.App.2d 27, 35.)

Plaintiff does not that dispute that lis pendens have been recorded against the subject properties. (See, e.g., Motion at 19:15-19 [re: Van Ness Property]; Kang Decl. ¶ 17 & Ex. 102 [Broadway Property].) While plaintiff contends that a lis pendens does not guarantee the properties will not be conveyed, the Court finds that the lis pendens recorded against the subject properties adequately protects plaintiff’s interest against future conveyance of such properties. (Ryan v. Murphy (1919) 39 Cal.App. 640, 642.) “A lis pendens gives notice that the judgment will be binding on persons later acquiring an interest in that property.” (Shoker v. Superior Court of Alameda County (2022) 81 Cal.App.5th 271, 275.) Potential buyers of the properties are notified that plaintiff has a claim against the properties and that they purchase the properties at their own risk.

With respect to rents from the properties, the appointment of a receiver is not essential for the protection of any interest plaintiff may have in such rents or to mitigate against dissipation of such assets. For example, a preliminary injunction against disbursement of proceeds from the properties may be an effective and less stringent remedy than appointment of the receiver. It would be an abuse of discretion for the Court to “appoint a receiver, when the purpose sought could be accomplished, and the rights of the parties more adequately protected, by the granting of an injunction upon the giving of an undertaking required by statute.” (Dabney Oil Co. v. Providence Oil Co. of Arizona (1913) 22 Cal.App. 233, 239.) Further, insofar as plaintiff may not even be entitled to such an injunction, plaintiff certainly would not be entitled to a receiver as sought in the instant motion. (Ibid.)

Plaintiff having failed to demonstrate that a receiver is absolutely essential or that the properties are in danger of dissipation, the motion is DENIED.