Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 00AS01073, 01AS07831
SIMS , J.
The trial court appointed a receiver (Code Civ. Proc., § 564 et seq.; Cal. Rules of Court, rule 3.1175 et seq.) to oversee the sale, pursuant to a court-supervised settlement (§ 664.6), of defendant Diamond Radio, Inc. to Entravision Communications Corporation (successor to plaintiffs Z-Spanish Radio Network, Inc. and KZSA Broadcasting, Inc.). Upon completion of the task, the receiver -- The Beverly Group, Inc. -- filed a motion for approval of the final account and discharge. Intervener Paula Nelson (who was the sole shareholder of Diamond Radio) appeals from the order granting the receiver’s motion. The receiver filed a respondent’s brief. The other parties have not filed briefs in this court. Nelson contends (1) the receiver cannot be discharged because a dispute exists as to whether the receiver breached its fiduciary duty, causing harm to Nelson, and (2) the court’s order exceeded the scope of its authority. We shall affirm.
Undesignated statutory references are to the Code of Civil Procedure.
Undesignated rule references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2003, the trial court appointed the receiver to fill two roles: (1) to take possession of, and effectuate the sale of, all Diamond Radio stock to Z-Spanish, pursuant to the court’s grant of Z-Spanish’s motion to enforce a settlement agreement (§ 664.6); and (2) to operate Diamond Radio until the transfer to Z-Spanish was complete.
After apparently contentious negotiations, a stock purchase agreement (SPA) between Entravision (as Z-Spanish’s successor), Diamond Radio, and Nelson as Diamond Radio’s shareholder, dated June 9, 2004, set forth terms for the closing of the sale.
On June 10, 2004, the parties filed a “STIPULATION OF PARTIES, CREDITORS AND RECEIVER FOR AN ORDER OF COURT AND FOR INSTRUCTIONS TO PROCEED WITH SALE,” for the receiver to execute the SPA.
The copy of the stipulation included in appellant’s appendix, which constitutes the record on appeal, is signed only by Entravision’s counsel. There are blank signature lines for the receiver and Nelson.
The trial court issued an order and instructions to the receiver to execute the SPA and perform the obligations of Diamond Radio and of the receiver pursuant to the SPA. The order also stated that, after closing on the sale of the stock, the receiver “shall have no further duties other than to prepare the final account and report, request final discharge and seek exoneration of its surety, and to assist in the transition of Diamond Radio, Inc. to Entravision.”
One of the receiver’s obligations was to draft schedules, including a schedule of obligations to be assumed by Entravision, to be appended to the SPA.
Nelson tried to get the receiver to complete the schedules before the SPA was executed, so they could be attached to the SPA. The receiver’s position was that its obligation to complete the schedules would not arise until the parties executed the SPA. Nelson claims the receiver had already received information from Entravision concerning the items it wished to include in the schedules, but the receiver did not disclose this information to Nelson.
On July 29, 2004, the receiver provided proposed schedules, which excluded Diamond Radio’s studio lease from the obligations being assumed by Entravision because the lease was not on the assumed contract list provided by Entravision.
On September 18, 2004, Entravision served on Nelson an ex parte application for an order requiring the receiver to approve the final schedules, shortening time on the receiver’s motion to cancel contracts, and/or directing the parties to close within 15 days after the schedules are final.
We use the date of service rather than the date of filing for this and some other documents, because there is no court date stamp on the copies provided in appellant’s appendix.
Nelson filed an opposition to the application, arguing among other things that the SPA required Entravision to assume contracts entered in Diamond Radio’s ordinary course of business, which would include the studio lease.
The trial court declined to get involved at that stage, stating in a September 24, 2004, order that the court found no emergency requiring ex parte relief, and any emergency appeared to have been created by the moving party’s delay in seeking court intervention. The court said that any stay of closing may cause irreparable harm to Diamond Radio and Nelson, while any harm to Entravision from observing the agreed-upon closing date could be remedied by monetary damages, if appropriate. The court said the parties had a contract (the SPA), and it would be inappropriate for the court to inject itself into any dispute between the parties at that point. The parties should be governed by the contract terms, rather than seeking court intervention. The court declined to give any advisory opinions or its interpretation of the contract before a party decided on a course of action.
The closing on the sale took place on September 30, 2004.
Meanwhile, on September 20, 2004, the receiver served a motion asking the court, among other things, to approve “rejection” of the lease. We do not find in the appellant’s appendix, which constitutes the record on appeal, any declarations or other documents supporting the motion (though the motion refers to an attached declaration and exhibits). The motion argued, “Entravision has exercised its rights under §§ 2.4 and 3.3(k) of the SPA [which is part of the record on appeal] to assume and exclude liability for contracts when it prepared and delivered the Final Schedules under the terms of the SPA. [Fn. omitted.] Therein, Entrav[i]sion stated that it will not assume . . . several . . . contracts, [including] an office lease at 660 J Street, Suite 215, Sacramento, California (‘Office Lease’) . . . .” The motion asserted the lease, which was where Diamond Radio’s business offices and broadcast studio were located, would not expire until 2012. The base rent was $7,310 per month, subject to increase. There was no buyout or early termination provision. The motion asserted the lease provided that a sale of 51 percent of Diamond Radio’s stock would require the lessor’s consent, and failure to obtain such consent constituted a default exposing the estate to claims under the lease for which the estate would have no money to satisfy. The motion asserted that the receiver contacted the lessor, which said it had incurred build-out costs for the long-term lease, and it would accept only full payment or a sub-tenant of equal or better credit.
Nelson does not assert she opposed the motion to reject the lease, nor does the record on appeal contain any opposition. (Although she had not yet been deemed an intervener, we note she did file opposition without intervener status when she wanted, e.g., her opposition to the ex parte application.)
On October 25, 2004, the trial court issued an order granting the request to reject the lease, “find[ing] that the lease of the station would be burdensome to the Receivership Estate after the Date of Closing and therefore the lease of the station is hereby rejected as of the Date of Closing.”
On April 25, 2005, the receiver served a motion for approval and settling of the receiver’s final account and report, and termination of the receivership and discharge of the receiver.
Nelson filed “Objections” to the motion, arguing in part that (1) the receiver could not be discharged because Nelson was entitled to bring independent claims against the receiver; and (2) the orders sought were beyond the scope of the receivership statutes and the order appointing the receiver. Nelson’s memorandum argued in general terms that the receiver breached its duty to Nelson by taking actions that drained the radio station of resources, acting in the receiver’s own self-interest (e.g., insisting on indemnification), exhibiting hostility toward Nelson, delaying completion of schedules until after the parties had negotiated the significant provisions of the SPA, conspiring with Entravision to draft schedules that would undermine the intent of the SPA, and injecting itself into a dispute between Entravision and Nelson, in which the receiver took Entravision’s side that it could decline to assume liabilities incurred in the ordinary course of Diamond’s business. Nelson said she also had potential claims against the receiver for fraud in misrepresenting Diamond’s financial condition, fraud and coercion to sign an escrow fee agreement, rescission of the fee agreement, and a claim under Business and Professions Code section 17200 for wrongful tampering with Nelson’s personal mail.
Nelson’s memorandum argued:
“Ms. Nelson has been heretofore unable to bring an action against the Receiver because the Receiver has been ostensibly acting as an officer of the Court. [Citation.] The Court should grant Ms. Nelson the right to pursue these claims in an independent action. Ordinarily, it is preferable to consider all claims in the receivership matter. However, in this case, Ms. Nelson is entitled to file a complaint, take discovery, and have a jury hear her claims. This Court is not the proper forum to conduct such a trial as this receivership has been overseen by the law and motion department. Ms. Nelson anticipates that trial on the contested issues will be lengthy and likely require considerable testimony from witnesses and experts. When the special forum cannot afford a litigant relief to which they are entitled--in this case discovery and a jury trial--it is abuse of discretion [not to grant] leave to file an independent action. [Citation.]”
At the hearing, Nelson argued the receiver had created a known potential liability when it cancelled the studio lease. Nelson also argued the receiver delayed the closing by insisting during the negotiations of the SPA that the parties indemnify the receiver. Nelson argued she had a right to conduct discovery, and she requested a jury trial to pursue claims against the receiver. Nelson argued the receiver should not be discharged until the extent of its liability was known. Nelson requested leave of court to pursue an independent action against the receiver or proceed in the current department with a full-fledged lawsuit.
We denied Nelson’s November 8, 2006, request for judicial notice of litigation by the landlord for breach of lease and by Entravision seeking indemnification from Nelson for money allegedly paid in settlement of the landlord’s lawsuit. We denied the request due to failure to state why the request should be granted.
On May 25, 2005, the trial court issued a tentative ruling, stating in part:
“In opposition, Paula Nelson, still insisting that she is not a party to the proceeding, contends that the Receiver cannot be discharged because Ms. Nelson is entitled to bring independent claims for misrepresentation, fraud and coercion, rescission and pursuant to Business & Professions Code section 17200 against the Receiver for opening Ms. Nelson’s mail, breaching the Receiver’s fiduciary duties, depriving Ms. Nelson of the benefit of her bargain and working to forward the Receiver’s own interests. Nelson cites Jun v. Myers (2001) 88 Cal.App.4th 117, 126 for the proposition that Nelson is entitled to bring a separate suit against the Receiver. Here, however, Ms. Nelson has repeatedly appeared and been heard in this action, while simultaneously asserting that she is not a party intervening in the underlying action. [¶] A receiver is a court-appointed official who can be sued only by permission of the court appointing him/her. The rule is established to protect receivers from unnecessary litigation. The law is that the court that appointed a receiver may grant leave to sue the receiver in an independent action, or it may deny leave and require the claimant to intervene in the receivership proceedings to assert his claim. Ostrowski v. Miller (1964) 226 Cal.App.2d 79, 84.”
After a hearing, the trial court (as reflected in its minute order) treated Nelson’s papers as a motion to intervene and granted it. The court continued the matter to allow Nelson to submit evidence and reasons why she believed an evidentiary hearing was required.
Nelson submitted a brief and referred the court to papers she previously filed.
On September 23, 2005, the trial court issued a tentative ruling stating Nelson had been heard by the court throughout the action, and an independent action was not necessary because appropriate relief would be attainable in the receivership case. The court said there was no right to a jury trial in receivership actions, which are equitable in nature. The court ruled on each of Nelson’s claims (as presented in the form of objections to final approval/discharge of the receiver), addressed by the receiver by demurrer. As to the claims at issue on this appeal, the trial court ruled as follows:
As to Nelson’s claim that the receiver breached its fiduciary duty by delaying the sale of the station in its own self-interest, resulting in increased receivership costs to the parties, the claim failed to state facts sufficient to constitute a claim, because the evidence showed the delay was not attributable solely to the receiver.
As to Nelson’s claim that the receiver delayed completing schedules for the SPA until after the parties negotiated the significant provisions of the SPA, the claim failed because section 3.3(k) of the SPA said the receiver would deliver schedules within 40 days from full execution of the SPA.
As to Nelson’s claim that the receiver conspired with Entravision to draft schedules that would undermine the intent of the SPA (allowing Entravision to exclude the lease from the liabilties it would assume), the claim failed because (1) the evidence showed a letter from the receiver giving Nelson notice (before the SPA was signed) that this was the receiver’s interpretation of the SPA language; and (2) the receiver was not liable for following the court’s instructions to reject the lease.
After a hearing, the trial court by minute order affirmed its tentative ruling and on October 17, 2005, issued its “ORDER GRANTING RECEIVER’S MOTION . . .,” which stated the court treated Nelson’s objections as a motion to intervene, granted the motion to intervene, overruled Nelson’s objections, denied Nelson’s requests for a jury trial or leave to file an independent action, and sustained the receiver’s evidentiary objections to a declaration of Nelson’s attorney. The trial court approved the receiver’s final account and report, terminated the receivership, and discharged the receiver. The court retained jurisdiction regarding the receivership or the receiver’s performance, including potential third party claims.
Nelson appeals from the order granting the receiver’s motion for approval and discharge. (City & County of San Francisco v. Shers (1995) 38 Cal.App.4th 1831, 1836 [order discharging receiver in nature of final judgment is appealable]; Aviation Brake Systems, Ltd. v. Voorhis (1982) 133 Cal.App.3d 230, 233 [order settling receiver’s account is a final appealable order].)
DISCUSSION
I. Standard of Review
The trial court’s order discharging a receiver is reviewed for abuse of discretion. (Boyd v. Benneyan (1928) 204 Cal. 23.) The trial court has discretion over claims against receiver and whether to require a claimant to assert claims against the receiver in the action in which the receiver was appointed or in a separate lawsuit. (Jun v. Myers (2001) 88 Cal.App.4th 117, 125 (Jun).)
II. General Legal Principles
The trial court may appoint a receiver to carry a judgment into effect or to dispose of property according to the judgment. (§ 564, subds. (a)(3), (4).) “The receiver has, under the control of the court, power . . . generally to do such acts respecting the property as the court may authorize.” (§ 568.) The receiver is the agent of the court and not of any party and, as such, is neutral, acts for the benefit of all who may have an interest in receivership property, and holds assets for the court rather than the parties. (O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1092; rule 3.1179(a).)
“As a general proposition a receiver has no official duties and is not a proper party to any action after being discharged by the court. [Citation.] The discharge order operates as res judicata as to any claims of liability against the receiver in her official capacity [by persons who participated in the receivership proceedings]. [Citation.]” (Vitug v. Griffin (1989) 214 Cal.App.3d 488, 494-495.)
“[U]pon the receiver’s final report and account, the receiver in his personal capacity may be surcharged for losses to the receivership estate based upon his misconduct or mismanagement. Notice of the receiver’s final report and account is given to all interested parties. [Citation.]” (Aviation Brake Systems, supra, 133 Cal.App.3d at p. 235 [complaint alleging receiver violated his duties was barred by res judicata because the claims either were, could have been, or should have been litigated at the time the receiver’s final report and account were approved].) “It is of course an indispensable part of the receiver’s duties to file an accounting and submit himself to inquiry and attack by those beneficially interested in the estate.” (Macmorris Sales Corp. v. Kozak (1967) 249 Cal.App.2d 998, 1005.)
“A receiver cannot be held liable as a tortfeasor for any act done by the receiver within the scope of his or her duty as receiver and under order of court. Certainly the receiver is not liable in an individual or personal capacity. . . . If, however, the receiver exceeds his or her authority, and in so doing causes injury to another, the receiver may be held personally liable. [¶] A receiver may be held liable in his or her official capacity for negligence in operating the receivership property committed to his or her care and management. A judgment recovered in such a case will be recognized as a charge against the receivership estate.” (55 Cal.Jur.3d Receivers, § 60, p. 74, fns. omitted.)
III. Ambiguity of Nelson’s Briefs
Nelson’s poor presentation in her appellate briefing makes characterization of her claim elusive. Her “INTRODUCTION TO ARGUMENT” defines the central question as one of procedural due process -- whether she was entitled to conduct discovery and cross-examine witnesses regarding her claims against the receiver before the court discharged the receiver. Her “STANDARD OF REVIEW” cites case law that a trial court has discretion to conduct a jury trial of her claims. However, (as we explain post) she develops no argument and presents no legal authority or analysis entitling her to a reversal in this case on due process grounds. The headings in her opening brief speak to other issues (that material facts are disputed and that evidence supports her claims), with brief and incidental reference to due process improperly presented in the text under an inapposite heading (in violation of rule 8.204(a)(1)(B)). Her reply brief says she was denied due process because the trial court treated her claim as a demurrer--a summary procedure which by its very nature prevented her from presenting evidence and failed to afford her discovery and cross-examination. However, dismissals of claims on demurrer happen all the time and do not constitute due process violations.
The bottom line is that Nelson fails to meet her burden as appellant to overcome the presumption that the trial court’s order is correct, and she fails to demonstrate reversible error or prejudicial abuse of discretion warranting reversal. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [as a matter of the constitutional doctrine of reversible error, a judgment or appealable order is presumed correct, and the appellant has the burden of demonstrating grounds for reversal]; Brunius v. Parrish (2005) 132 Cal.App.4th 838, 859.)
We will first address the matter of due process. We will then respond to Nelson’s other points.
IV. Due Process
Under a heading asserting evidence supported her claim of breach of fiduciary duty, Nelson argues she should have been permitted to pursue her claims against the receiver for breach of fiduciary duty either (1) in an independent action or (2) in the receivership proceedings with the full panoply of procedures afforded in civil actions. She claims “the trial court did not permit [her] to pursue her claims in any forum.”
However, Nelson is wrong. She was permitted to pursue her claims in the receivership proceeding. The trial court treated her objection/opposition to the receiver’s motion for final approval/discharge as a motion to intervene, granted the motion to intervene, allowed Nelson to submit whatever evidence she wanted, treated the receiver’s response as a demurrer, and rejected Nelson’s claims.
Nelson thinks what happened did not count, because she was not allowed to conduct discovery and cross-examine witnesses in a jury trial. She complains the trial court’s treatment of the case as a demurrer by its very nature deprived her of due process.
However, she fails to show she was entitled to discovery, cross-examination, or a jury trial.
As to discovery and cross-examination, her opening brief cites no legal authority. Her reply brief merely cites authority that parties in civil proceedings have a right to discovery and cross-examination, subject to limitation by the court. (§ 2017.010.) The trial court expressed its view that every piece of evidence to be found had been found in this protracted litigation with a thick case file. We note a full evidentiary hearing is not a necessary component of due process in all cases. (Conway v. State Bar (1989) 47 Cal.3d 1107, 1113 [due process is a flexible concept, the fundamental requirement of which is the opportunity to be heard in a meaningful manner]; Marvin Leiblein, Inc. v. Shewry (2006) 137 Cal.App.4th 700, 720-724.) Nelson provides no legal or factual analysis demonstrating grounds for reversal, and we therefore need not address the matter further. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3 [reviewing court need not address contentions unsupported by legal and/or factual analysis].)
As to a jury trial, Nelson’s opening brief, under the heading “STANDARD OF REVIEW,” cites De Forrest v. Coffey (1908) 154 Cal. 444 at page 450, for the proposition that the trial court in a receivership case may direct that claims by an intervener be tried by a jury. Nelson does not develop this point in her argument, nor does she attempt to reconcile this comment by De Forrest with other authority (including authorities cited by the trial court and the receiver) that there is no right to a jury trial in actions in equity or special proceedings. (E.g., Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 76; C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1; Pacific Railway Co. v. Wade (1891) 91 Cal. 449, 456-457; Wisden v. Superior Court (2004) 124 Cal.App.4th 750, 755; Vitug v. Griffin, supra, 214 Cal.App.3d at p. 493 [if a claim contemplates a jury trial, the court may not require the claimant to try the claim before the court sitting in equity in the receivership action].)
In any event, even if we accept that a jury trial is possible in receivership proceedings, Nelson fails to show she should have been afforded one in the circumstances of this case.
First, she fails to undertake any analysis of the rule for determining whether a right to jury trial exists, i.e., “If the right to trial by jury existed at common law in 1850, when the California Constitution was adopted, it exists today: ‘It is the right to trial by jury as it existed at common law which is preserved; and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.’ [Citation.]” (Wisden, supra, 124 Cal.App.4th at p. 754, citing People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 287.) Nelson’s failure to undertake the task of legal analysis is fatal to her appeal and is not excused by her claim that she reviewed receivership law and related cases without finding any judicial guidance for the specific circumstances of this case.
Second, even assuming this is the type of case for which a jury trial would be appropriate, that does not mean Nelson gets one. Even in actions at law where a jury trial is afforded, the case may be disposed of on a pretrial pleading such as a demurrer or summary judgment without infringing due process, i.e., where the court determines the matter may be decided as a matter of law and there is no factual dispute requiring a jury. Here, the trial court decided the case as a demurrer. We reject post Nelson’s attacks on this disposition.
Nelson appears to think that Jun v. Meyers, supra, 88 Cal.App.4th 117, stands for the proposition that, if the receivership court requires a claimant to pursue claims against a receiver in the receivership proceedings rather than in an independent action, the court must allow the party to litigate its claims in the receivership proceedings under the same procedural rules that would apply in an independent suit (i.e., discovery and a jury trial).
We shall explain why Nelson is mistaken.
We begin with some underlying principles. Suing a court-appointed receiver, who is an agent of the court, is not like suing anyone else. Claims against a receiver can be brought only if the court allows it. (Ostrowski v. Miller (1964) 226 Cal.App.2d 79, 84.) The rule that claimants must apply to the court before suing a receiver is founded upon notions of judicial economy. (Ibid.) In most cases a claimant can obtain appropriate relief in the receivership action; therefore an independent action will not be necessary. (Ibid.) The trial court has broad discretion whether to authorize an independent action against a receiver. (Id. at p. 80)
The case relied upon by Nelson, Jun, supra, 88 Cal.App.4th 117, held a trial court abused its discretion by denying both a motion to sue in an independent action and a motion to intervene by summarily determining the claim lacked merit. (Id. at p. 125.) Jun said:
“In the seminal case of De Forrest v. Coffey (1908) 154 Cal. 444 (De Forrest) a receiver was appointed for an insolvent bank. While the insolvency action was pending, the petitioner made a motion for an order permitting him to file an independent action to compel the receiver to return funds petitioner claimed were accepted for deposit by the bank after the bank knew it was insolvent. He did not seek to intervene in the insolvency proceedings. The motion to file suit was denied, and petitioner sought a writ of mandate to compel the trial court to grant him leave to file the independent action.
“The Supreme Court concluded that the petitioner had no absolute right to file a separate action against the receiver. It stated: ‘The only proposition with which we are concerned is, did the court have the discretion to require the petitioner to litigate his claim, whether legal or equitable, by intervening in the proceeding in which the receiver was appointed . . . .’ [Citation.] The court answered the question by stating: ‘[W]hether the court will permit, upon application, an independent suit to be brought relative to the property in the hands of the receiver, or will compel intervention in the proceeding in which the receiver is appointed, is a matter for its discretion. It is not required to assume jurisdiction of all controversies to which the receiver may become a party, but may upon application permit them to be determined in some other competent tribunal. . . . When the court cannot afford the same relief in intervention as a claimant would be entitled to in an independent action, or where by virtue of some statutory or constitutional provision a particular kind of action must be brought in some jurisdiction other than where the original special proceeding is pending, the court will undoubtedly grant leave to bring it, and it would be an abuse of discretion not to do so.’ [Italics added.] [Citations.]
“Contrary to receiver’s contention that De Forrest ‘suggests that the court may assess the merits of the proposed lawsuit at the time a motion is filed for leave to sue a receiver,’ the only discretion De Forrest considered was whether to permit an independent suit against the receiver or compel the claim to be litigated in the receivership action. It did not suggest that the trial court had jurisdiction to decide whether the claim could be presented at all.
“To prevent a party from filing a separate suit against a receiver as well as from intervening in the receivership action is to deprive him of access to the courts to pursue his claim. Denial of access to the courts implicates due process. [Citations.] Furthermore, even if a third party could resort to the uncertain procedure of filing an objection to the final accounting by the receiver, it is an inadequate substitute for the right to bring suit. As stated in De Forrest, ‘in determining the right of the petitioner under the intervention, the court proceeds under the same rules and grants him the same relief as if he were the plaintiff in an independent suit, and the same right of appeal is preserved to him. He is deprived of no right in the intervention which he is guaranteed under the law in an independent action, should he have been permitted to bring one . . . .’ [Italics added.] [Citation.]
“The trial court had discretion to determine whether or not to require Jun to assert his claim against receiver in the action or in a separate lawsuit. It did not have discretion to deny both the motion to sue and the motion to intervene by summarily determining that Jun’s claim lacked merit.” (Jun, supra, 88 Cal.App.4th 117, 124-125.)
Jun, supra, 88 Cal.App.4th 117, does not compel reversal in the case before us. In Jun, the claimant was not a party to the receivership proceedings, but rather a person who bought property from the receiver. (Id. at p. 119.) The trial court denied the motion to sue by passing judgment on the merits of the claim, concluding the claimant failed to demonstrate he was entitled to sue. (Id. at p. 123.) Here, in contrast, the trial court allowed intervention and, as noted by the court, Nelson had been very much involved throughout the case and had been heard by the court throughout the case, even before she was deemed to be an intervener.
Nelson distorts Jun by saying it held due process requires that a party seeking to assert claims in a receivership must receive “‘the same relief as if he were a plaintiff in an independent suit . . . he is deprived of no right in intervention which he is guaranteed under law in an independent action, should he be permitted to bring one.’” She says parties in civil proceedings have a due process right to discovery and cross-examination, and this same “relief” must be afforded in claims presented in the receivership proceedings. She argued in the trial court that the court was required to let her file an independent action because “the special forum cannot afford [her] relief to which [she claimed to be] entitled--in this case discovery and a jury trial . . . .”
Nelson’s interpretation fails. As seen by the full quotation, Jun indicated it would be an abuse of discretion for the court to deny leave to bring an independent action “[w]hen the court cannot afford the same relief in intervention as a claim would be entitled to in an independent action . . . .” (Jun, supra, 88 Cal.App.4th 117, 125, italics added.)
Plaintiff fails to show the court could not have afforded her relief in intervention had she prevailed on her claims against the receiver.
We conclude Nelson fails to show grounds for reversal based on her unsatisfied demands for discovery, cross-examination, or a jury trial.
V. Challenges to Discharge of Receiver
We shall now set forth in turn each heading in Nelson’s brief and our response.
A. First Heading
Nelson’s first heading is “THE RECEIVER CANNOT BE DISCHARGED BECAUSE THERE IS AN EXISTING DISPUTE OVER THE TERMS OF AN AGREEMENT THAT THE RECEIVER SIGNED, AND THE RECEIVER’S ACTIONS PURSUANT TO THE AGREEMENT MAY HAVE HARMED [NELSON].”
Nelson argues the parties to the SPA disputed whether the SPA gave Entravision the right to reject the studio lease, and the receiver improperly believed it could solve this dispute by canceling the lease. Nelson discusses Los Angeles litigation concerning the lease -- which we disregard because we denied her request for judicial notice of those documents.
Nelson then says the receiver owed her a fiduciary duty. She cites authority that the class of persons to be protected by a receiver includes a shareholder (such as Nelson), that a receiver as an officer of the court is held to strict accountability and must be neutral and not act as the agent of any party.
Nelson then says that, by discharging the receiver, the trial court forever deprived her of the right to discovery of additional facts supporting her claims or to assert the claims in any forum, because the discharge operates as res judicata as to any claims by parties to the receivership against a receiver in its official capacity. (O’Flaherty v. Belgum, supra, 115 Cal.App.4th at p. 1094.) Nelson says, “Though a comprehensive review of the receivership law and related cases did not reveal judicial guidance for the specific circumstances here, it cannot be the intent of the receivership law that a receiver could breach fiduciary duties by concealing with impunity material information about a sale transaction to the detriment of the seller the receiver was obligated to protect.” Nelson argues the receivership should have remained open until resolution of any litigation concerning breach of the lease or, at a minimum, she should have been permitted to conduct discovery on when the receiver knew Entravision was going to attempt to use the schedules to exclude the lease obligation, what the receiver knew, and why the receiver chose not to tell Nelson about it until after the parties signed the SPA.
There are many defects in Nelson’s arguments.
First, Nelson fails to develop a factual analysis regarding the claimed dispute over the SPA language. She does not even quote any SPA language. She does not confront the circumstance that the rejection of the lease was pursuant to court order, rather than unilateral action by the receiver. She fails to meet her burden as appellant to demonstrate that the trial court’s resolution was reversible error or prejudicial abuse of discretion warranting reversal. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Brunius v. Parrish, supra, 132 Cal.App.4th at p. 859.)
Second, regarding discovery, Nelson fails to cite any authority entitling her to discovery. She also fails to acknowledge the trial court said at the hearing, in response to Nelson’s argument that she wanted to conduct discovery, that the thickness of the case file and the long duration of the case indicated no one had been deprived of information.
Third, Nelson’s claim that she made a “comprehensive review” of the law without finding any judicial guidance for this case ignores the well-established constitutional doctrine of reversible error, that the trial court’s order comes to us with a presumption that it is correct. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Brunius v. Parrish, supra, 132 Cal.App.4th at p. 859.)
Fourth, Nelson’s claim that it cannot be the intent of the law to allow a receiver to breach fiduciary duties by concealing material information overlooks that the trial court found there was no supportable claim because evidence submitted by Nelson (a letter giving Nelson notice of the receiver’s contract interpretation before the SPA was signed) defeated Nelson’s claim. Again, Nelson fails to meet her burden as appellant to demonstrate reversible error or prejudicial abuse of discretion in the trial court’s ruling.
We conclude Nelson’s first heading fails to demonstrate grounds for reversal.
B. Second (Sub) Heading
Nelson’s next heading, presented as a subheading, is: “THE RECEIVER CANNOT BE DISCHARGED BECAUSE THERE IS EVIDENCE THAT THE RECEIVER BREACHED ITS FIDUCIARY DUTY TO [NELSON] BY CONCEALING MATERIAL INFORMATION ABOUT THE SALE OF THE RADIO STATION FROM [NELSON].” Nelson says she presented an e-mail from the receiver’s attorney suggesting the receiver knew for months before execution of the SPA that Entravision was planning to exclude the lease from the obligations it would assume. Nelson claims she “made it clear” to the court there was “no way” she would have entered into the transaction to sell the station had Entravision told her it would reject the lease.
Again, Nelson cites no legal authority.
Secondly, as indicated, plaintiff’s own evidence showed the receiver warned Nelson that the draft SPA allowed Entravision to reject liabilities. Thus, on May 20, 2004 (before the June 2004 signing of the SPA), the receiver’s attorney sent a letter to the other attorneys, including Nelson’s attorney, stating in part that the SPA “provides that Entravision only assumes certain accounts payable. Who is responsible for the balance, the Estate? The same is true for assumed contracts. Who is responsible for unassumed contracts and the Excluded liabilities that can be unilaterally declared by Entravision.” (Italics added.) The trial court referred to this letter (which was submitted by Nelson herself for a different purpose) in the court’s tentative ruling for final approval/discharge of the receiver. The tentative ruling also noted the rejection of the lease was with court approval.
We note the trial court characterized this case as the receiver demurring to Nelson’s claims. Evidence is not usually part of a demurrer. However, the receivership proceedings had been ongoing for years, such that a wealth of evidence was part of the trial court record. We also note a tentative ruling is not binding because it is not final, but it may be referenced for the purpose of affirming a judgment. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 345, p. 389.)
Third, as to Nelson’s assertion that she would not have entered the transaction to sell the station had she known the receiver’s interpretation of the SPA, she agreed to sell the station long before the receiver was even appointed. Moreover, her only citation to the record is to her memorandum, which does not constitute evidence. The memorandum referred to a declaration from Nelson’s attorney (for which Nelson provides no page cite, in violation of rule 8.204), which stated the attorney would not have agreed to such a provision in the SPA. This does not constitute grounds for reversal.
Fourth, Nelson claims that, in light of her evidence, the trial court should have permitted discovery as to when the receiver knew of Entravision’s plans, what the receiver knew, and what other material information the receiver chose not to tell Nelson. Even assuming she requested this discovery, she fails on appeal to meet her burden to demonstrate how the denial of discovery constitutes grounds for reversal.
We conclude this contention lacks merit.
C. Third (Sub)Heading
Nelson’s next subheading is: “THE RECEIVER CANNOT BE DISCHARGED BECAUSE THERE IS EVIDENCE THAT THE RECEIVER BREACHED ITS FIDUCIARY DUTY TO [NELSON] BY DELAYING THE PARTIES’ AGREEMENT TO THE SPA.” Nelson argues the receiver, by insisting on obtaining indemnity from the parties before she would sign the SPA, unnecessarily delayed the station’s sale, prolonged the receivership, and increased the costs to the parties. Nelson says the receiver thus acted in its own self-interest in derogation of its duty to the parties. Nelson acknowledges the court’s tentative ruling said no delay by the receiver could have injured Nelson, because the other parties were also not in agreement about the SPA, and the SPA was signed as soon as these parties reached agreement. Nelson complains the trial court failed to address her contention that the sole cause of the delay in reaching agreement on the SPA was the receiver’s insistence on indemnity.
However, Nelson’s claim is defeated by the May 24, 2004, letter from her lawyer to the settlement conference judge, stating in part that the secured creditors were refusing to sign the SPA because they insisted on two additional terms -- (1) non-refundable deposit by Entravision into escrow, and (2) agreement that if the transaction did not close in 120 days, the secured creditors could take possession of and sell the station.
Nelson fails to show grounds for reversal under her heading challenging discharge of the receiver.
VI. “Beyond The Scope” Contentions
Nelson next contends the trial court entered orders that were beyond the scope of its powers under the receivership statutes. She fails to show grounds for reversal.
Under this heading, Nelson cites no receivership statutes whatsoever. She merely cites two rules of court concerning receiverships -- neither of which supports reversal.
Nelson argues the receiver was not entitled to an order “approving” the final account and report, because the rules of court do not provide that the receiver is entitled to approval of the final accounts. Nelson says the court can find only that the final report either is or is not sufficient for discharge of the receiver. Nelson cites former rule 1908 (now rule 3.1184), which says in part: “A receiver must present by noticed motion or stipulation of all parties: [¶] (1) a final account and report; [and] [¶] (2) A request for the discharge . . . .”
However, the fact that the rule does not expressly address approval of the final account and report does not mean the court acted outside its jurisdiction in approving the final account and report. Of course the trial court has the power to approve a final account. (People v. Riverside University (1973) 35 Cal.App.3d 572, 588; 55 Cal.Jur.3d Receivers, § 56, pp. 69-71.) Moreover, Nelson fails to show any possible prejudice. We conclude Nelson has failed to show any reversible error in the court order approving the final account and report.
Nelson argues the trial court improperly found the receiver’s fees were fair and reasonable. The finding was improper, according to Nelson, because neither the rules of court nor the order appointing the receiver authorizes the receiver to seek or the trial court to make such a finding. Nelson cites former rule 1907 (now rule 3.1183) for the proposition that the receiver can only seek approval of fees, and nothing more. However, rule 3.1183 says (as did the former rule) that “[i]nterim fees are subject to final review and approval by the court. The court retains jurisdiction to award a greater or lesser amount as the full, fair, and final value of the services received.” Obviously, the court had jurisdiction to determine reasonableness of the fees. Moreover, Nelson does not claim the fees were unreasonable, and she thus fails to show what possible difference it makes that the court made a finding that the fees were fair and reasonable.
Nelson next complains the trial court granted the receiver’s request for an order approving and ratifying all of its acts despite Nelson’s evidence challenging them. Nelson’s entire argument under this subheading is: “The Receiver sought and received an order concerning a fact--whether the Receiver acted in the best interest of the estate and the Parties--that was disputed by [Nelson]. [Citation to record.] The California Rules of Court do not provide that the Receiver is entitled to such an order. Nor should the determination have been made by the trial court, since it could only have been resolved by a trier-of-fact, during proceedings in which [Nelson] was permitted to take discovery, present evidence, and cross-examine witnesses.” The argument does not match the subheading. Nelson fails to cite any evidence or authority demonstrating reversible error, and we therefore need not consider the matter further. (In re Marriage of Nichols, supra, 27 Cal.App.4th at pp. 672-673, fn. 3.)
Nelson next argues the court exceeded its jurisdiction by requiring the parties to indemnify the receiver. The order terminating the receivership stated in part: “Paula Nelson, Entravision and the Secured Creditors shall jointly and severally INDEMNIFY the Receiver for its defense of any claim by a third party against the Receiver or Receivership Estate for failure to give notice under . . . [former rule] 1908(c).” Nelson argues that since indemnification is a contract (Civ. Code, § 2772 [“Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person”]), and Nelson did not consent to indemnify the receiver, the court had no authority to impose such an obligation upon Nelson. However, Nelson cites nothing requiring an express contract. As noted by the receiver, Nelson fails to acknowledge the factual background for this ruling, i.e., the receiver asked for the indemnification provision because the parties, but not the receiver, bargained for a “no notice” provision in a stipulation they signed when they submitted the SPA to the court. Under this “no notice” provision, the receiver was not to give notice of the final account and request for discharge to all persons or entities known to have unsatisfied claims (as required by rule 3.1184 [former rule 1906]). The trial court found, in its tentative ruling, that the parties, but not the receiver, bargained for the “no notice” provision. Nelson fails to address the evidence and thus fails to show reversible error.
Finally, Nelson contends the trial court abused its discretion by retaining jurisdiction over the receivership in the event third parties assert claims against the receiver or the receivership estate. Nelson cites no authority whatsoever but merely asserts there is no authority for the trial court to retain jurisdiction after discharge of the receiver. She also fails to explain how she is prejudiced. We conclude Nelson fails to meet her burden as appellant to demonstrate reversible error. (Denham, supra, 2 Cal.3d at p. 564; In re Marriage of Nichols, supra, 27 Cal.App.4th at pp. 672-673, fn. 3.)
We conclude Nelson fails to show grounds for reversal.
DISPOSITION
The judgment (order) is affirmed. Respondent (The Beverly Group, Inc.) shall recover its costs on appeal. (California Rules of Court, rule 8.276(a).)
We concur: BLEASE , Acting P.J. DAVIS , J.