Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BP086023, Aviva K. Bobb, Judge.
Law Office of Andrew Echavarria and Andrew Echavarria for Defendant and Appellant.
Loeb & Loeb, Adam F. Streisand, and Nicholas J. Van Brunt, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Daniel G. Drommerhausen III appeals from an order appointing a receiver. The receiver was appointed to aid in the enforcement of judgments rendered against Mr. Drommerhausen. Mr. Drommerhausen also appeals from a preliminary injunction issued against him. The preliminary injunction enjoined Mr. Drommerhausen from interfering with the receiver’s actions. These orders were entered in favor of Debra D. Hutchings, as the sole successor trustee of the Drommerhausen Family Trust (“the trustee”). Mr. Drommerhausen also seeks review of an order denying a stay of the order. We affirm the receivership and injunctive orders. The purported appeal from the stay order is dismissed.
II. BACKGROUND
Daniel Drommerhausen II and Marjorie Drommerhausen, who are both deceased, were the parents of Mr. Drommerhausen and the trustee. The parents created the trust in December 1995. Mr. Drommerhausen and the trustee were named as successor co-trustees and are equal beneficiaries under the trust. On June 3, 2004, the probate court granted an ex parte application suspending Mr. Drommerhausen’s powers and enjoining him from taking further actions with respect to the trust property. The trustee is the executor of the parents’ wills and the sole successor trustee of the trust.
On December 1, 2004, the trustee filed three petitions under Probate Code section 850 to confirm that the real properties and accounts belong either to the estates or the trust. The parties stipulated that the matter would be submitted to Retired Judge Eli Chernow for trial by reference pursuant to Code of Civil Procedure section 638. The probate court entered judgment following Retired Judge Chernow’s recommendations as to the ownership of the disputed properties for the estates and trust. The Probate Code section 850 orders also required Mr. Drommerhausen to file accountings relating to the real properties, rents issues and profits and all bank and brokerage accounts which were determined to be owned by the estates and trusts. The probate court also entered monetary judgments against Mr. Drommerhausen in favor of the estates and trusts. Five of the judgments were entered in favor of the trusts and four were entered in favor of the estates. On April 30, 2007, we affirmed the probate court’s order regarding ownership of the property in an unpublished opinion. (Hutchings v. Drommerhausen (Apr. 30, 2007, B191211) [nonpub. opn.].) The judgments were amended nunc pro tunc on April 8, 2008, to reflect prejudgment interest. The total amount of the judgments was $2,716,882.92 plus post-judgment interest accruing at 10% per annum per judgment from March 6, 2006.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On October 9, 2007, Mr. Drommerhausen filed and served his accounting for the period of January 1, 2003, through June 11, 2004. On November 5, 2008, the probate court entered an order surcharging Mr. Drommerhausen in the amount of $2,290,798.41 plus interest at the rate of 10% per annum from June 11, 2004. The surcharge order provides in part, “The Court finds that [Mr. Drommerhausen] acted in bad faith in opposing [the trustee’s] Objections and in refusing to turn over Trust assets to Trustee.” On March 24, 2009, the probate court granted a motion to charge Mr. Drommerhausen’s beneficial interest with attorney fees and costs in connection with the first accounting trial. Mr. Drommerhausen was charged with $344,126.98 and costs in amount of $32,460.56.
On April 29, 2008, the trustee obtained writs of execution on the judgments, which had been entered in favor of the trusts and estates. Mr. Drommerhausen filed exemption claims regarding some brokerage accounts and four real properties. The trial court subsequently denied the exemption claims. Appeals from the November 5, 2005 surcharge order (but not the March 24, 2009 attorney fee and cost award) and denials of the exemption claims have been resolved by us in a separate opinion filed on this date in favor of the trustee. (Hutchings v. Drommerhausen (February 16, 2010, B211844 [nonpub. opn.].)
On November 10, 2008, the trustee filed a verified complaint to for fraudulent conveyances pursuant to Civil Code sections 3439.04 and 3439.5 against Mr. Drommerhausen and two individuals. The trustee alleged Mr. Drommerhausen had fraudulently transferred approximately $1 million from his personal bank accounts to the two individuals after judgments in favor of the trust were entered against him. It was further alleged that the transfers were made without exchange of value with the intent to aid Mr. Drommerhausen’s fraudulent conduct against the trust.
On December 3, 2008, the trustee filed an application for appointment of receiver pursuant to sections 564 and 708.620. The trustee also requested injunctive relief prohibiting Mr. Drommerhausen from interfering with the receiver’s acts. The attorney for the trustee, Nicholas J. Van Brunt, reviewed the history of the proceeding. This included the following circumstances. On May 17, 2005, prior to trial of the Probate Code section 850 petitions, the trustee obtained a preliminary injunction against Mr. Drommerhausen based on his interference with the trust. The probate court issued a preliminary injunction against Mr. Drommerhausen on May 17, 2005. The injunction expired upon entry of a final judgment in the Probate Code section 850 proceedings. In September 2005, the probate court found Mr. Drommerhausen in contempt. The contempt arose from an act of vandalism directed at Mr. Drommerhausen’s parent’s former home. The probate court ordered Mr. Drommerhausen to serve five days in Los Angeles County jail and to pay a fine of $7,000. The probate court ordered the contempt purged upon payment of the fine.
When the trustee attempted to assert control over several trust properties, she learned that Mr. Drommerhausen was misrepresenting to the tenants that he was the landowner. As a result, Mr. Drommerhausen was continuing to collect rents from trust properties. On September 27, 2007, the probate court issued an injunction against Mr. Drommerhausen prohibiting him from collecting or attempting to collect rent from any real property owned by the trust. He was also restrained, among other things, from: entering the premises of trust properties; communicating with trust tenants; allowing access to trust properties; and interfering with management of the trust properties. The September 27, 2007 injunction remains effective until final distribution.
Mr. Van Brunt’s declaration also outlined Mr. Drommerhausen’s post-judgment conduct in attempting to elude the terms of the judgment as well as collection of the debts owed to the trust. As shown above, this included Mr. Drommerhausen’s unsuccessful efforts to defeat the trustee’s actions to enforce the judgment by filing exemption claims. It also included the alleged fraudulent conveyances of assets to two individuals. Mr. Drommerhausen also admitted in a judgment debtor examination that he had continued to collect rents from dozens of trust tenants. The trustee argued that: a receiver was necessary to identify and preserve trust and estate assets; the receiver would also assist the trustee in enforcing the judgments against the Mr. Drommerhausen who was secreting assets; and due to his litigious history and his efforts to evade collection of the judgments against him, Mr. Drommerhausen should be restrained from interfering with the receiver.
Mr. Drommerhausen opposed the application by arguing that the appointment of a receiver was unnecessary because: his livelihood is collection of the rents; the appointment of a receiver would not result in a reasonable method to obtain a fair and orderly satisfaction of the judgment; the trustee has already levied upon the nine properties listed in the application; and the properties are Mr. Drommerhausen’s personal assets distributed to him as a trust beneficiary in exchange for a $1 million distribution to the trustee in her capacity as a trust beneficiary. Mr. Drommerhausen asserted that injunctive relief should not issue because he is not currently performing any act which needed to be restrained.
The probate court granted the application for appointment of receiver and issuance of a preliminary injunction. On January 26, 2009, Mr. Drommerhausen filed a notice of appeal from the December 18, 2008 ruling. On January 27, 2009, Mr. Drommerhausen filed an ex parte application which sought to stay the appointment of a receiver and preliminary injunction orders. Mr. Drommerhausen requested that the probate court issue the stay pursuant to section 918.5 without requiring him to post a bond or undertaking. At the hearing on his ex parte stay request on February 10, 2009, Mr. Drommerhausen reiterated his request the probate court issue the stay without a requirement of a bond. He did not offer to post a bond. The probate court denied Mr. Drommerhausen’s ex parte application to stay the receiver and preliminary injunction orders concluding that he was not entitled to a stay under section 918.5, subdivision (a). Mr. Drommerhausen did not file a notice of appeal from the February 10, 2009 order denying the stay application.
On March 24, 2009, the probate court entered an order surcharging Mr. Drommerhausen in the amount of $3,168,150.32 following a trial of a second accounting. The accounting period was from June 11, 2004, through the time of Mr. Drommerhausen’s removal as trustee in 2007. The surcharge order included a credit of $168,000 for labor and services performed during the second accounting period and reimbursement of $115,591.30 in connection with a trust expense paid during the applicable period. Mr. Drommerhausen did not appeal from the March 24, 2009 order.
On July 14, 2009, the probate court entered an ordered appointing Byron Z. Moldo as a receiver. The court also enjoined Mr. Drommerhausen from interfering with Mr. Moldo’s actions. We deem Mr. Drommerhausen’s premature notice of appeal filed on January 26, 2009 (from the order appointing a receiver and issuing an injunction) to be timely as to those orders only. (See Cal. Rules of Court, rule 8.104(e)(2); In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1262, fn. 4; Greenfield v. Insurance Inc. (1971) 19 Cal.App.3d 803, 814.)
III. DISCUSSION
A. The Appointment of the Receiver
Section 564, subdivisions (a) and (b)(3) authorizes a court to appoint a receiver in a pending proceeding when empowered by law to appoint a receiver which includes a post-judgment order to carry the judgment into effect. Section 708.620 provides, “The court may appoint a receiver to enforce the judgment where the judgment creditor shows that, considering the interests of both the judgment creditor and the judgment debtor, the appointment of a receiver is a reasonable method to obtain the fair and orderly satisfaction of the judgment.” We review receivership appointment orders for an abuse of discretion. (Gold v. Gold Realty, Co. (2003) 114 Cal.App.4th 791, 807; City and County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 744.)
Section 564 provides in part: “(a) A receiver may be appointed, in the manner provided in this chapter, by the court in which an action or proceeding is pending in any case in which the court is empowered by law to appoint a receiver. [¶] (b) A receiver may be appointed by the court in which an action or proceeding is pending, or by a judge thereof, in the following cases: [¶]... (3) After judgment, to carry the judgment into effect.”
Mr. Drommerhausen argues there was non-compliance with the jurisdictional requirements of section 564. Mr. Drommerhausen relies on Locke v. Klunker (1898) 123 Cal. 231, 235-238, Turner v. Superior Court (1977) 72 Cal.App.3d 804, 811 and Rondos v. Superior Court of Solano County (1957) 151 Cal.App.2d 190, 195 to support his jurisdictional claims. However, none of these three decisions considered the issue raised by Mr. Drommerhausen concerning the post judgment appointment of a receiver. (§ 564, subd. (b).) Rather, the Locke and Turner opinions involved appointments of rents and profits receivers to take possession of property. And the property was not used to secure an underlying debt. (Locke v. Klunker, supra, 123 Cal. at pp. 235-238 [court lacks authority to appoint rent and profits were mortgage does not contractually assign interests to satisfy the debt]; Turner v. Superior Court, supra, 72 Cal.App.3d at pp. 807, 811 [the trial court lacked jurisdiction to appoint a rents and profits receiver to take possession of property which was not part of a secured debt].) Similarly, in Rondos v. Superior Court, supra, 151 Cal.App.2d at page 195, the trial court was found to lack jurisdiction to appoint a receiver under a specific statute authorizing appointments of a receiver in a partnership dissolution. Here, appointment of the receiver is expressly authorized by sections 564, subdivisions (a) and (b)(3) and 708.620 to carry a judgment into effect.
Furthermore, we disagree with Mr. Drommerhausen that the probate court failed to resolve the competing equitable interests specified in section 708.620. He claims an abuse of discretion is established because: the nine real properties listed in the application were already levied upon; the only actions Mr. Drommerhausen could take regarding the properties was earning his livelihood in managing the properties and collecting rents from them; and the trust had $6 million in assets at the time the receiver was appointed. Without abusing its discretion, the probate court could reasonably find the appointment of the receiver was a reasonable method to fairly secure orderly satisfaction of the judgment within the meaning of section 708.620. The probate court had before it a lengthy history of Mr. Drommerhausen’s conduct in to resisting the collection of the judgments against him. Prior to entry of the judgments, Mr. Drommerhausen asserted ownership and control over trust and estate properties. Even after entry of the judgments, Mr. Drommerhausen continued to obscure the line of ownership in the properties and interfered with the trustee’s efforts to manage the trust. Mr. Drommerhausen had to be restrained on two separate occasions from misappropriating trust property. Mr. Drommerhausen also was found in contempt for violation of the probate court’s injunctive order after he vandalized his parents’ former residence. There was also evidence that Mr. Drommerhausen was engaging in obstructive behavior to prevent collection of the judgments entered against him for his actions in misappropriating the trust properties. This included transferring large sums of money to third parties and filing exemption claims, which have been determined to be without a statutory basis.
Furthermore, we disagree with Mr. Drommerhausen that the receiver should not have been appointed because the trustee had levied on the properties or the trust contained other assets. The existence of alternative remedies does not preclude the use of a receivership. (Gold v. Gold Realty Co., supra, 114 Cal.App.4th at p. 807; City and County of San Francisco, supra, 16 Cal.App.4th at p. 745.) Thus, the court’s appointment of a receiver under these circumstances was not an abuse of its discretion.
B. The Injunction
Mr. Drommerhausen contends the probate court abused its discretion in enjoining him from interfering with the receiver’s actions. This is because there was no evidence that he was performing any act, which needed to be restrained as required by section 526. Our Supreme Court has stated: “[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain in the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. [Citations.]” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.) A decision to grant or deny a request for a preliminary injunction rests within the sound discretion of the trial court. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286 citing IT Corp. v. County of Imperial [supra] 35 Cal.3d [at p.] 69.) The determination will not be reversed on appeal absent a showing of a manifest abuse of discretion. (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 286; IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 69-70.)
Section 526 provides in part: “(a) An injunction may be granted in the following cases: [¶] (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. [¶] (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. [¶] (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. [¶] (4) When pecuniary compensation would not afford adequate relief. [¶] (5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. [¶] (6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings. [¶] (7) Where the obligation arises from a trust.”
Here, Mr. Drommerhausen challenges the probate court’s determination that he should be ordered to not interfere with the receiver’s actions. Given the history of this case which we have related above, no abuse of discretion has been shown. The current trustee has been attempting to marshal trust assets for over five years. Mr. Drommerhausen, a former trustee, has interfered with her efforts by misappropriating trust assets such as collecting rents payable to the trust. Mr. Drommerhausen has also vandalized trust property. Mr. Drommerhausen has also been surcharged with over $5 million for his actions taken prior to his removal as a trustee. There is evidence he attempted to secrete assets in order to avoid collection of the judgments which were entered after he was found to have misappropriated trust property. Under the circumstances, Mr. Drommerhausen has failed to establish the probate court exceeded the bounds of reason when it issued the injunctive order under review.
C. Refusal to Stay the Order
Mr. Drommerhausen argues the probate court abused its discretion in refusing on January 27, 2009, to stay the order appointing a receiver pending appeal. Mr. Drommerhausen claims that the trial court should have stayed the order appointing the receiver and imposing injunctive relief against him. In the alternative, he asserts the probate court abused its discretion in refusing to consider a bond pursuant to section 917.1.
The trustee argues that we have no jurisdiction over issues relating to the stay dispute. The trustee notes the January 26, 2009 notice of appeal only refers to the December 18, 2008 orders. We agree no reference is made in the January 26, 2009 notice of appeal to the order denying the stay request. We agree we have no jurisdiction over the stay issues. We are without jurisdiction to consider the issues not mentioned even inferentially in the notice of appeal. (Glasscov. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47; Eskaton Monterey Hospitalv. Myers (1982) 134 Cal.App.3d 788, 790; Estate of McManus (1963) 214 Cal.App.2d 390, 393.) Hence, the purported appeal from the January 27, 2009 order is dismissed.
IV. DISPOSITION
The order appointing a receiver and enjoining Daniel Drommerhausen III from interfering with the receiver is affirmed. The purported appeal from the stay order is dismissed. Debra Hutchings, in her capacity as trustee of the Drommerhausen Family, is awarded her costs on appeal from Mr. Drommerhausen.
We concur: ARMSTRONG, J. KRIEGLER, J.