Judge: William D. Claster, Case: 21-01228073, Date: 2022-07-28 Tentative Ruling

1)   Defendants Trident Pacific Real Estate Group, Inc. and Gregg Williams (collectively, “Defendants”) Demurrer to the First Amended Complaint

2)   Case Management Conference

Defendants Trident Pacific Real Estate Group, Inc. and Gregg Williams (collectively, “Defendants”) demur to the First Amended Complaint on the ground that Plaintiffs Nam Pham and DMVH, LLC failed to obtain leave of the Nevada state court to file suit against Defendants. Defendants also argue that res judicata bars each of Plaintiffs’ claims, based on the same Nevada action.  For the reasons set forth below, the demurrer is SUSTAINED without leave to amend.

It is well-settled that a party must first obtain permission from the court which appointed the receiver to sue that receiver and, should it fail to do so, the receiver may object to the action by filing a timely demurrer. (Ostrowski v. Miller (1964) 226 Cal.App.2d 79, 83.) Here, Plaintiffs argue no permission to sue from the Nevada state court was required because the Receiver’s “ultra vires” acts complained of disqualify the Receiver from immunity from suit and excuse lack of leave from the Nevada state court. The Court disagrees.

Plaintiffs fail to cite a case that allows a lawsuit to proceed against a receiver without first obtaining leave of court. While Plaintiffs correctly point out that such lawsuits have been allowed to proceed when the receiver allegedly engages in ultra vires acts, there is no cited authority for the proposition that those allegations relieve the Plaintiffs of the need to obtain court permission to sue.

Here, the Nevada court considered and rejected Plaintiffs’ request for permission to file a lawsuit against the receiver. In so doing, it enjoined Plaintiffs from filing this or any other action based on the receiver’s conduct. As stated by the court:

“G. The Court thus concludes that it is proper to enjoin Defendants from continuing the California Action or bringing any further actions related to the receivership.

H. Regardless of Defendants’ failure to seek permission from this Court prior to suing the Receiver, Defendants have failed to present any basis to sue the Receiver.

I. As previously found by this Court in the Fee Order, this Court found that the Receiver properly discharged his duties under the Order Appointing Receiver and that the Receiver is discharged from any further liability related to the receivership. (See Dkt. No. 208.) As such, there is no basis for this Court to allow Defendants to sue the Receiver because this Court has already found that the Receiver properly discharged his duties and discharged him from any further liability related to the receivership.

 J. In addition, this Court has already considered and rejected Defendants’ asserted bases for seeking to sue the Receiver.”

RJN, Exh.1.  In short, Plaintiffs cite no authority, and the Court is aware of none, to support the contention that obtaining permission from the Nevada state court is here excused.

Requests for Judicial Notice

The Court GRANTS Defendants’ unopposed requests to take judicial notice of Exhibits 1–4 from the docket in the Nevada state court case, Hanh Thi Hoang v. DMVH, LLC, et al., District Court Clark County, Nevada Case No. A-18-779912-C. (Evid Code §§ 452, 452(d)(1).) These documents demonstrate that Plaintiffs tried and failed to obtain the requisite consent to sue and this suit was expressly enjoined.

Accordingly, the Demurrer is SUSTAINED without leave to amend.