Judge James C. Chalfant, Case 21STCV20773 2023-01-26 Tentative Ruling

City of Commerce v. Carlos Galvan, Jr., 21STCV20773

Tentative decision on petition to appoint receiver: denied

Plaintiff City of Commerce (“City”) moves for appointment of a receiver for the structure (“Structure”) located on 1333 South McBride Avenue, Commerce, CA 90040 (“Property”).

The court has read and considered the moving papers (no opposition was filed), and renders the following tentative decision.

The City filed the Complaint against Defendant Carlos Galvan, Jr. (“Galvan”) on June 2, 2021, alleging (1) public nuisance and injunctive relief; (2) violations of the Commerce Municipal Code (“CMC”); and (3) declaratory relief. The Complaint alleges in pertinent part as follows.

Galvan has at all relevant times been the owner of the Property. Galvan illegally constructed the Structure, which is a two-story structure, on it without any permits, approvals, or inspections by the City’s Planning and Building Departments. The City cannot legalize the building because it is not safe or CMC-compliant.

The City learned about construction of the Structure from various calls in July 2020. On July 7, 2020, City staff observed a commercial trash bin at the Property without an encroachment permit. The staff member issued a Correction Notice on July 7, 2020 for the violation of Building Code section 106.1, lack of a permit. The notice indicated the required corrective actions, which included contacting the City’s Code Enforcement, Planning, and Building and Safety Divisions to obtain corrective instructions and permits, including an encroachment permit for the trash bin. The notice also informed Galvan that the City would conduct a compliance inspection on or after July 22, 2020.

During the City’s inspection on July 22, 2020, staff observed the Structure’s construction above the former garage on the Property without permits. The City Building Inspector issued an

amended Notice of Violation and a First Stop Work Notice (“First Stop Work Order”) that required Galvan to cease all work on the Structure until he obtains City Planning and Building Departments Approvals. The notice also advised him to contact the Planning Department within ten days to avoid further issues.

On July 23, 2020, the City staff issued a “Notice of Violation – First Notice” (“July 23, 2020 Notice”) that again cited Building Code section 106.1 and told Galvan to contact the City’s Code Enforcement, Planning, Building and Safety Divisions for the necessary permit. Galvan falsely told the City staff that he was just rebuilding the garage and ignored the July 22, 2020 notice. On July 28, 2020, City staff provided Galvan with an application for the encroachment permit.

On August 3, 2020, the City learned that construction activities had resumed at the Property. On August 6, 2020, the City’s Building Inspector issued a Second Stop Work Order (“Second Stop Work Order”) that again ordered all work to stop until Galvan obtain the required City approvals. Galvan did not comply.

On August 19, 2020, the City Attorney sent Galvan a Notice of Public Nuisance and Intention to Abate with City Personnel. The Notice of Public Nuisance cited CMC section 9.23.020(y), which defines a public nuisance to include (1) anything that is or is likely to become injurious or detrimental to health, safety, or welfare, offensive to the senses or an obstruction to the free use of property or free passage of any sidewalk, public park, square, street or highway; and (2) anything where a person fails to comply with any condition of a city approval, entitlement, license or permit or when an activity on, or use of, real property violates, or is contrary to, any provision or requirement of the CMC. The notice required Galvan to cease all construction and contact the Planning and Building Departments to obtain permits and inspection for any current and planned construction by August 26, 2020.

Galvan ceased construction and submitted plans to the City, which determined whether changes to the Structure could allow it to conform with the City’s new Accessory Dwelling Unit (“ADU”) ordinance. The City concluded that the Structure did not meet height, size, setback, and maximum bedroom count requirements. The City sent Galvan corrections to the plans in a letter dated September 24, 2020. Galvan resumed construction without making the modifications.

On January 14, 2021, the City Attorney sent Galvan a Notice to Cease and Desist and Intent to Prosecute (“Cease and Desist Notice”) that warned him to cease construction and contact the Planning and Building Departments for permits and inspection for any current and planned construction.

On March 2, 2021, City issued a Third Stop Work Order that stated the City had received notice that Galvan had resumed construction. It ordered him to cease construction until he obtained the requisite City approvals.

On March 9, 2021, the City sent Galvan a Notice of City Attorney Office Hearing that notified him of a hearing on March 30, 2021 to resolve this without criminal prosecution. At the hearing, the City again advised Galvan he needed proper building permits.

On April 15, 2021, City staff and City Director of Economic Development and Planning Jose Jimenez (“Jimenez”) conducted a site visit to assess the construction of an illegal unit. On April 29, 2021, Jimenez sent Galvan a letter that listed numerous violations and required corrective actions for the Property. Because Galvan did not respond, Jimenez resent it on May 6, 2021 with notice that the City needed a response by May 10, 2021.

Galvan has not abated the violations at the Property. Galvan’s failure to stop illegal construction after nine notices demonstrates an intentional willful, bad-faith violation of the law.

The City seeks (1) an order for Galvan to show cause why the court should not enjoin the construction; (2) a declaration that the illegal construction and Structure on the Property are public nuisances under CMC section 9.32 and Civil Code sections 3479 and 3480; and (3) an order enjoining Galvan from using the Property and Structure. The City also seeks injunctions (1) enjoining Galvan from construction, development, or use of any property in the City, (2) removal of all unpermitted structures from the Property, (3) permitting City officials to enter the Property at any time over the next three years to conduct inspections, (4) requiring Galvan to give the City 30 days’ notice of any transfer or sale of the Property; and (5) requiring Galvan to abate any unlawful conditions on the Property. The City also seeks appointment of a special master or receiver to oversee any actions the court finds necessary to abate or enjoin unlawful construction on the Property. The City further seeks recovery of attorney’s fees and costs.

On June 17, 2021, City served the Complaint and Summons by substitute service effective June 27, 2021.

On June 28, 2022, Department 50 (Hon. Teresa Beaudet) granted the City’s ex parte application for a temporary restraining order (“TRO”) and order to show cause (“OSC”) re: preliminary injunction enjoining Galvan from any unpermitted and construction or physical occupation at the Structure on the Property. A preliminary injunction was granted on September 30, 2022. On October 14, 2022, Department 50 granted the City’s ex parte application to modify the preliminary injunction to remove the bond requirement.

On November 15, 2022, Department 50 declined to hear the City’s ex parte application for appointment of a receiver pursuant to Health and Safety Code (“H&S Code”) section 17980.7(c) and ordered the City to refile and re-notice it in Writs and Receivers.

A receiver may be appointed in an action or proceeding in any case in which the court is empowered by law to appoint a receiver, including where it is necessary for the preservation of the property or rights of a party. CCP §564(a). Where a property owner fails to make repairs in accordance with an order under H&S Code section 17980.6 within a reasonable time, the enforcement agency may seek the appointment of a receiver for the substandard building. H&S Code §17980.7(c). In determining whether to appoint a receiver, the court shall consider whether the owner has been afforded a reasonable opportunity to correct the conditions cited in the notice of violation. H&S Code §17980.7(c)(1).

The court shall not appoint any person as a receiver unless the person has demonstrated to the court his or her capacity and expertise to develop and supervise a viable financial and construction plan for the satisfactory rehabilitation of the building. H&S Code §17980.7(c)(2). The petitioner must provide the court with information about its proposed receiver, thus enabling the court to determine whether the proposed receiver has the capacity and expertise to develop and supervise a viable financial and construction plan for the satisfactory rehabilitation of the building, as required by H&S Code section 17980.7(c)(2).

If a receiver is appointed, the owner and his or her agent of the substandard building shall be enjoined from collecting rents from the tenants, interfering with the receiver in the operation of the substandard building, and encumbering or transferring the substandard building or real property upon which the building is situated. H&S Code §17980.7(c)(3).

Any receiver appointed pursuant to this section shall have all of the following powers and duties in the order of priority listed in this paragraph, unless the court otherwise permits: (A) To take full and complete control of the substandard property; (B) To manage the substandard building and pay expenses of the operation of the substandard building and real property upon which the building is located, including taxes, insurance, utilities, general maintenance, and debt secured by an interest in the real property; (C) To secure a cost estimate and construction plan from a licensed contractor for the repairs necessary to correct the conditions cited in the notice of violation; (D) To enter into contracts and employ a licensed contractor as necessary to correct the conditions cited in the notice of violation; (E) To collect all rents and income from the substandard building; (F) To use all rents and income from the substandard building to pay for the cost of rehabilitation and repairs determined by the court as necessary to correct the conditions cited in the notice of violation; (G) To borrow funds to pay for repairs necessary to correct the conditions cited in the notice of violation and to borrow funds to pay for any authorized relocation benefits and, with court approval, secure that debt and any moneys owed to the receiver for services performed pursuant to this section with a lien on the real property upon which the substandard building is located. The lien shall be recorded in the county recorder’s office in the county within which the building is located; (H) To exercise the powers granted to receivers under CCP section 568. H&S §17980.7(c)(4). The receiver shall be entitled to the same fees, commissions, and necessary expenses as receivers in actions to foreclose mortgages. H&S Code §17980.7(c)(5).

If the conditions of the premises or the repair or rehabilitation thereof significantly affect the safe and sanitary use of the substandard building by any tenant, to the extent that the tenant cannot safely reside in his or her unit, then the receiver shall provide relocation benefits in accordance with H&S Code section 17980.7(d)(3)(A). H&S Code §17980.7(c)(6). The relocation compensation provided for shall not preempt any local ordinance that provides for greater relocation assistance. H&S Code §17980.7(c)(7).

In addition to any reporting required by the court, the receiver shall prepare monthly reports to the state or local enforcement agency which shall contain information on at least the following items: (A) The total amount of rent payments received; (B) Nature and amount of contracts negotiated relative to the operation or repair of the property; (C) Payments made toward the repair of the premises; (D) Progress of necessary repairs; (E) Other payments made relative to the operation of the building; (F) Amount of tenant relocation benefits paid. H&S Code §17980.7(c)(8).

The receiver shall be discharged when the conditions cited in the notice of violation have been remedied in accordance with the court order or judgment and a complete accounting of all costs and repairs has been delivered to the court. Upon removal of the condition, the owner, the mortgagee, or any lienor of record may apply for the discharge of all moneys not used by the receiver for removal of the condition and all other costs authorized by this section. H&S Code §17980.7(c)(9).

Separate from the H&S Code, substandard housing conditions may constitute a public or private nuisance. Civil Code section 3479 defines “nuisance” as including anything injurious to health. A “public nuisance” must affect an entire community or neighborhood, or a considerable number of persons, although the extent of the annoyance or damage upon individuals may be unequal. Civ. Code §3491. A “private nuisance” is any other nuisance. Id.

Violations of city planning and zoning requirements are a public nuisance which may be enjoined by injunction. City and County of San Francisco v. Padilla, (1972) 23 Cal.App.3d 388, 401. A showing of irreparable harm is not required where the Legislature by statute or a city by ordinance has determined that a defined condition is a public nuisance; the only showing necessary is the statutory violation. City of Bakersfield v. Miller, (1966) 64 Cal.2d 93, 100.

In July 2020, the City received several calls from neighbors about a garage conversion on the Property. Jimenez Decl., ¶5. On July 7, 2020, City staff observed a commercial trash bin at the Property without an encroachment permit. Jimenez Decl., ¶5.

City Staff issued Galvan a July 7, 2020 Notice of Violation. Jimenez Decl., ¶5, Ex. B. The notice stated that, per Building Code section 106.1, he could not erect, construct, alter, repair, move, improve, remove, convert, or demolish any building or structure without a permit from the building official. Jimenez Decl., ¶5, Ex. B. The notice advised Galvan to (1) contact the City’s Code Enforcement, Planning, Building and Safety Divisions to obtain corrective instructions and permits; and (2) contact Public Services for an encroachment permit for the bin. Jimenez Decl., ¶5, Ex. B. The City warned Galvan that it would conduct a compliance inspection on or after July 22, 2020. Jimenez Decl., ¶5, Ex. B.

When City staff inspected the Property on July 22, 2020, it observed the Structure’s construction above the former garage on the Property without approval from City Planning and Building Departments. Jimenez Decl., ¶6. Staff issued a Stop Work Order, which ordered Galvan to cease all work on the Structure until he obtained approval. Jimenez Decl., ¶6, Ex. C. He was required to obtain said approval within ten days to avoid further issues. Ex. C.

City staff then issued a July 23, 2020 notice that again cited Building Code section 106.1 and told Galvan to contact the City’s Code Enforcement, Planning, Building and Safety Divisions for corrective instructions and the necessary permits. Jimenez Decl., ¶7, Ex. D. The notice indicated that the Building Inspector had issued an immediate stop work order. Ex. D. The notice warned Galvan that it would conduct a compliance inspection on or after August 7, 2020. Ex. D.

Galvan falsely told City staff that he was just rebuilding the garage and he ignored the July 22, 2020 notice. Jimenez Decl., ¶8. On July 28, 2020, City staff provided Galvan with an application for the bin’s encroachment permit. Jimenez Decl., ¶8.

On August 3, 2020, the City learned that construction activities had resumed at the Property. Jimenez Decl., ¶9. On August 6, 2020, the City Building Inspector issued a second Stop Work Order asserting that the City did not have the requisite approvals on file. Jimenez Decl., ¶9, Ex. E. The order again stated that all work must stop until Galvan obtain the required City approvals. Ex. E. Galvan still continued construction. Jimenez Decl., ¶10.

On August 19, 2020, the City Attorney sent Galvan a Notice of Public Nuisance. Jimenez Decl., ¶10, Ex. F. The notice cited CMC section 9.23.020(y)’s definition of a “public nuisance”, which is (1) anything that is or is likely to become injurious or detrimental to health, safety, or welfare, offensive to the senses, or an obstruction to the free use of property or free passage of any sidewalk, public park, square, street or highway; or (2) anything where a person fails to comply with any condition of a city approval, entitlement, license or permit or when an activity on, or use of, real property violates, or is contrary to, any provision or requirement of the CMC. Ex. F. Any CMC violation is a public nuisance, but the CMC is not an exhaustive list of all nuisances. Ex. F.

The City Attorney’s notice advised Galvan that, to avoid legal action, he needed to (1) cease all construction immediately and (2) contact the City Planning and Building Departments to obtain proper permits, approvals, and inspections for any current and planned construction activities by August 26, 2020. Ex. F. The nuisance conditions were subject to abatement by rehabilitation, demolition, repair, removal, or termination. Ex. F. Although the notice informed Galvan of his right to appeal, he never did so. Jimenez Decl., ¶10, Ex. F.

Galvan temporarily ceased construction and submitted plans to the City. Jimenez Decl., ¶11. The City reviewed the plans to determine whether changes to the Structure could allow it to conform with the new ADU ordinance. Jimenez Decl., ¶11. The City concluded that it did not meet height, size, setbacks, and maximum bedroom count requirements. Jimenez Decl., ¶¶ 11-12, Ex. G. The proposed elevations of the Structure showed a height of 21 feet and 8.5 inches when the maximum was 16 feet, rear and side yard setbacks of only three feet and not four, five bedrooms instead of the maximum two, and a total square footage of 1,837 when the maximum is 1,000. Jimenez Decl., ¶12, Ex. G. The City sent Galvan corrections to the plans in its September 24, 2020 Letter. Jimenez Decl., ¶¶ 11-12, Ex. G. Galvan resumed construction without making the modifications. Jimenez Decl., ¶¶ 11-12, Ex. G.

On January 14, 2021, the City Attorney sent Galvan a Cease-and-Desist Notice. Jimenez Decl., ¶12, Ex. G. The notice warned him that, because of his constant refusals to comply with City orders, the matter had been referred to the City Attorney for immediate prosecution. Jimenez Decl., ¶12, Ex. G. As before, the City Attorney ordered him to (1) cease construction immediately and (2) contact the Planning and Building Departments for permits, approvals, and inspection for any current and planned construction. Jimenez Decl., ¶12, Ex. G. If he did not, the City would issue administrative citations each day with fines, and the City Attorney would both file criminal charges and a civil lawsuit. Jimenez Decl., ¶12, Ex. G.

On March 2, 2021, the City issued a Third Stop Work Order that warned Galvan that it had received complaints that he had resumed construction. Jimenez Decl., ¶13, Ex. H. It warned him to cease construction until he obtained the requisite City approvals. Jimenez Decl., ¶13, Ex. H.

On March 9, 2021, the City sent Galvan a Notice of Hearing for March 30, 2021. Jimenez Decl., ¶14, Ex. I. The notice advised him that the CMC violations at issue carried a possible sentence of six months in prison plus $1,000 per occurrence. Jimenez Decl., ¶14, Ex. I. The hearing was his last chance to resolve the matter without criminal prosecution. Jimenez Decl., ¶14, Ex. I. At the hearing, the City’s counsel and staff again advised Galvan that he needed proper building permits. Jimenez Decl., ¶15.

On April 15, 2021, Jimenez and other City staff conducted a site visit to assess the construction of an illegal unit. Jimenez Decl., ¶16. On April 29, 2021, Jimenez sent Galvan a Final Correction Notice demanding a full explanation how Galvan planned to cure all defects for the Structure by May 10, 2021. Jimenez Decl., ¶16, Ex. J. Under the ADU ordinance, CMC section 19.07.090, these defects included (1) the height is 21 feet 8 inches when the maximum is 16 feet; (2) the setback of the Structure from the north and south property line never exceeds 2 feet when it needs to be 4 feet; (3) the rear exterior wall is too close to the property line and had windows, when openings are not permitted on that wall; (4) the windows in each bedroom are not rated for one-hour fire resistance and do not meet minimum requirements for the width, height, or clear net; (5) the Structure has five bedrooms when the maximum is two; (6) the square footage is 1,837 when 1,000 is the maximum; (7) a licenses professional, architect or engineer needs to draw the plans for any improvements to rectify ADU issues; (8) there are no smoke detectors or carbon monoxide alarms or wiring for such; (9) insufficient clearance between exterior walls and adjacent grade risks water accumulation at the Structure’s base, so any plans needed to address how to divert water to drainage devices; and (10) solar panels are required for all new buildings but not present on the Structure. Jimenez Decl., ¶16, Ex. J.

Because Galvan did not respond, Jimenez resent the Final Correction Notice on May 6, 2021 via email with notice that the City needed a response by May 10, 2021. Jimenez Decl., ¶17.

On December 7, 2022, Jimenez sent Galvan notice of this motion to appoint a receiver and the hearing date by first-class mail. Jimenez Decl., ¶19, Ex. K.

As of December 14, 2022, Galvan has not abated the ADU violations. Jimenez Decl., ¶18. The Structure still exists and is visible on Google Earth. Jimenez Decl., ¶¶ 18, 20, Ex. L.

Mark Adams (“Adams”) is President of the California Receivership Group, Inc. (“CRG”), which has significant experience in H&S Code receiverships. Adams Decl., ¶1. He has been appointed receiver for over 1,332 nuisance properties by 162 different judges. Adams Decl., ¶1, Ex. 1. He is familiar with the Property and the necessary tasks to bring it into compliance with state and local law. Adams Decl., ¶5. He is not a party or counsel to a party in this action, has no agreements about the matter, and is not related to any judge of the Court by consanguinity or affinity within the third degree. Adams Decl., ¶6.

Hourly rates range from $465 for Adams to $140 for CRG’s Operations Specialist. Adams Decl., ¶4, Ex. 2. CRG’s practice is to assign each activity to the most inexpensive team member with the requisite knowledge and experience to accomplish a professional result. Adams Decl., ¶4. The monthly accounting reports will reflect any changes to employee assignments or hourly rates. Adams Decl., ¶4.

Petitioner City seeks appointment of a receiver for the Property. No opposition was filed.[1]

The City’s application is based on (1) Galvan’s consistent failure to obtain permits from the required City departments before construction of the Structure and (2) underlying violations of the ADU that prevent the City from granting permits or approval for it.

If a building is maintained in a manner that violates provisions of the H&S Code, the relevant building standards published in the State Building Standards Code, or other rules, regulations or local ordinances, and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered, the enforcement agency may issue an order or notice to repair or abate. H&S Code §17980.6. When a property owner fails to make repairs in accordance with an order under H&S Code section 17980.6 within a reasonable time, the enforcement agency may seek the appointment of a receiver for the substandard building. H&S Code §17980.7(c).

The City has demonstrated that it sent Galvan notice on July 7, 2020 that construction of the Structure without a permit violated the Building Code. Jimenez Decl., ¶5, Ex. B. Galvan kept building the Structure despite several notices that the City still had no permit approval on file. Jimenez Decl., ¶¶ 6-7, 9-10, Exs. C-F.

After a Notice of Public Nuisance on August 26, 2020 (Jimenez Decl., ¶10, Ex. F), Galvan temporarily ceased construction and sought City approval of his construction plans. Jimenez Decl., ¶11. However, when the City notified him that his plans had multiple ADU violations, Galvan continued construction without any modification. Jimenez Decl., ¶¶ 11-12, Ex. G. A Cease-and-Desist Notice and Third Stop Work Order did not stop him either. Jimenez Decl., ¶¶ 12-13, Exs. G-H.

The City then sent Galvan a Notice of Hearing for March 30, 2021, indicating that it was his last chance to avoid criminal prosecution. Jimenez Decl., ¶14, Ex. I. Galvan attended the hearing, at which the City again stated that he needed a permit. Jimenez Decl., ¶15.

Galvan has had two and a half years and ample warning since the initial July 7, 2020 notice to obtain the necessary permits and bring his construction of the Structure into compliance with the CMC. Jimenez Decl., ¶5, Ex. B. The City has the authority to declare by ordinance what is a public nuisance. Govt. Code §38771. Any failure to obtain a permit for construction on real property is a public nuisance under CMC section 9.32.020(y). The City warned Galvan in the August 19, 2020 Notice of Public Nuisance that any violation of the CMC or building for which a person fails to comply with any condition of a city approval, entitlement, license or permit is a per se public nuisance. Jimenez Decl., ¶10, Ex. F.

There is no doubt that the City has shown the unpermitted Structure to be non-compliant with the City’s ADU ordinance and a public nuisance. Given the serious nature of the violations, it seems apparent that the Structure cannot be remediated and must be demolished. This is what the City wants a receiver to do. See Mot. at 13.

The issue for this motion is timing. That is, whether demolition must take place now or only if and after the City obtains a judgment against Galvan. A receivership for substandard conditions is only proper when violations of law are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered. H&S Code §§ 17980.6, 17980.7(c). Per se nuisance based on a missing permit or approval does not demonstrate that anyone’s health or safety is at risk.

The Final Correction Notice on May 10, 2021 lists all violations at issue. Jimenez Decl., ¶16, Ex. J. During inspection of the Structure, the City found that (1) the height was 21 feet 8 inches when the maximum is 16 feet; (2) the setback of the Structure from the north and south property line never exceeded 2 feet when it needs to be 4 feet; (3) the rear exterior wall was too close to the property line and had windows, when openings are not permitted on that wall; (4) the windows in each bedroom were not rated for one-hour fire resistance and did not meet minimum requirements for the width, height, or clear net; (5) the Structure had five bedrooms when the maximum is two; (6) the square footage was 1,837 when 1,000 is the maximum; (7) a licenses professional, architect or engineer needed to draw the plans for any improvements to rectify ADU issues; (8) there were no smoke detectors or carbon monoxide alarms or wiring for such; (9) the insufficient clearance between exterior walls and adjacent grade risked water accumulation at the Structure’s base, so any plans needed to address how to divert water to drainage devices; and (10) solar panels are required for all new buildings but not present on the Structure. Jimenez Decl., ¶16, Ex. J.

The court does not lightly appoint a receiver under H&S Code section 17980.7(c). In the court’s experience, the cost of receiver’s abatement measures and fees and costs most often result in the owner’s loss of the property in foreclosure. The risk posed by the violations must be severe to justify an order that could permanently divest a defendant of property. In this case, the violations are mostly zoning requirements that pose no immediate health or safety risk. The exception is smoke detectors and carbon monoxide alarms, but the court will not appoint a receiver to oversee their installation where there is no evidence that anyone resides in the Structure. While there may be some general risk to the public from an illegal structure, it is an insufficient risk to health and safety to justify a receivership before judgment. The City must obtain a judgment against Galvan before seeking a post-judgment receiver to tear down the Structure.

The City is not without remedies while the lawsuit is pending. Galvan has had two and a half years since the July 7, 2020 notice to obtain the necessary permits, and over one and a half years since the Final Correction Notice to fix the specific issues. Jimenez Decl., ¶¶ 5, 16, Exs. B, J. He has failed to do so. The City has obtained a preliminary injunction enjoining Galvan from continuing construction or occupying the Structure, and there is no evidence that he is in violation of this injunction. The City also threatened criminal prosecution but there is no evidence that it has followed through with misdemeanor charges. This remedy remains available to the City.

[1] The court file reflects that Galvan opposed the ex parte application for appointment of a receiver in Department 50.