IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
March 16, 2011
MARIANNE NEWMAN-DEURLOO ET AL., PLAINTIFFS AND RESPONDENTS,
BEVERLY ATHELEEN BEALL, DEFENDANT AND APPELLANT.
(Super. Ct. No. 135831)
The opinion of the court was delivered by: Hull, J.
Newman-Deurloo v. Beall
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In a nuisance action, defendant Beverly Atheleen Beall and plaintiffs John Deurloo and Marianne Newman-Deurloo stipulated to the entry of judgment in plaintiffs' favor requiring defendant to sell her house in Paradise and move out of the neighborhood. Defendant appeals from an order granting plaintiffs' motion to appoint a receiver to enforce the stipulated judgment. She asserts that the trial court abused its discretion by employing the "drastic" and "extraordinary" remedy of receivership. She further asserts that the trial court erred by requiring her to post an appeal bond.
As we shall explain, the issue concerning the appeal bond is not properly before this court. With respect to the order appointing a receiver, defendant has failed to demonstrate an abuse of the trial court's discretion. Accordingly, we affirm the judgment.
Plaintiffs and defendant are next door neighbors in Paradise. The thrust of plaintiffs' nuisance lawsuit was that defendant's operation of a drug house constituted a nuisance that would continue unabated unless the trial court intervened.
In February 2006, plaintiffs filed an amended complaint alleging that defendant continuously accepted visitors "at all times of the night and day," and that many of these visitors would stay roughly five to 10 minutes before "'peeling out'" and accelerating rapidly down the street. Plaintiffs complained of car doors slamming, bright vehicle lights, and loud voices that often used "foul and vulgar language" and asked defendant whether she was "'open for business.'" Plaintiffs also complained that these visitors had attempted to intimidate them by making "threatening gestures." Plaintiffs further alleged that defendant was responsible for certain incidents of prowling in and around their property, including the shining of a flashlight into their home, that she allowed her pit bull to bark loudly at night and wander freely in the neighborhood, and that she was also responsible for, among other things, breaking a window on their camper shell, tampering with their tires and mailbox, throwing trash and leaving cigarette butts in their yard, and stealing one "'DRUG FREE ZONE' sign" that was put up in the neighborhood and vandalizing another such sign. Plaintiffs sought an injunction restraining defendant from continuing these activities as well as compensatory and punitive damages.
In September 2007, defendant filed a cross-complaint alleging that plaintiffs invaded her privacy by intercepting certain cordless phone conversations. In February 2008, summary judgment was entered in favor of plaintiffs on the cross-complaint.
In April 2008, the nuisance action settled. Defendant agreed to list her property for sale with a specified realtor within seven days, to "actively market the property and utilize her best efforts to sell the property" to a "non-related third party," and to move out of the neighborhood. The realtor would be made available to plaintiffs' attorney to ensure that defendant was "making legitimate efforts to get [the property] sold in this market for the best possible price with the best possible terms, with the understanding that she [was] marketing the property to get it sold." Plaintiffs agreed to dismiss the lawsuit with prejudice as soon as the property was sold and defendant had moved out of the neighborhood.
In November 2008, a stipulated judgment was entered ordering defendant to "actively and continually" market her property, and to "utilize her best efforts to sell the property on the best price and terms that can be achieved on a bona fide sale to a third party purchaser." The judgment ordered the specified realtor to be made "periodically available for consultation" with plaintiffs' attorney, and further ordered: "The property shall be listed and sold at fair market value. Defendant shall continue making legitimate efforts to sell the property for the best possible price on the best possible terms that can be obtained, under the existing market conditions. Defendant shall be required to market the property and get it sold." The trial court "retain[ed] jurisdiction over the price and terms of the sale of the subject property to ensure that it is sold within a reasonable time at a reasonable price and terms."
In May 2009, over a year after defendant agreed to sell her property and move out of the neighborhood, and nearly 7.5 months after the property was actually placed on the market, plaintiffs moved the trial court to appoint a receiver to enforce the stipulated judgment. Plaintiffs asked the court to "appoint a receiver to take possession and control of [defendant's] [p]roperty, to assure the prompt sale accordingly," and further asked the court to order that "the receiver shall be permitted to adjust the sale price of the property according to the fair market value to assure a quick and final sale according to the Judgment."
In support of the motion, plaintiffs argued that the appointment of a receiver was necessary because defendant was not "making her 'best efforts' to sell the property." Indeed, in a declaration filed in support of the motion, plaintiff John Deurloo asserted that defendant was actually impeding the sale of the property by listing it at an unreasonable price ($224,950) based on current market conditions, and that defendant deliberately allowed her large dog to wander freely in order to discourage potential buyers from viewing the property.
Defendant opposed the motion, arguing that the appointment of a receiver was unnecessary because she was actively marketing the property. According to the realtor, the price of $224,950 was a "reasonable sale price" and the property had been shown 12 times at that price. Defendant had received an offer of $190,000 for the property, which was rejected. The realtor also explained that "[a]bout 14% of properties for sale are in escrow in the Paradise area, which is an extremely low percent of listed homes," and that the list price of the property was recently reduced to $214,650. At that price, the realtor believed that "when the right buyer comes along, it may sell." Defendant further argued that appointing a receiver would be oppressive because it would "require her to vacate the premises without selling the premises and allow it to be taken over by a receiver without [her] participation in the sale essentially forcing [her] to move out of her only residence without the ability to move into a new residence or to even have the means by which to obtain a new residence."
In July 2009, the trial court declined to appoint a receiver because defendant had opened escrow with a potential buyer for the price of $200,000. Four days after the hearing, the potential buyer cancelled escrow because of repairs that needed to be done for termite damage and problems with the roof. The list price was then reduced to $204,950.
In September 2009, Deurloo filed an additional declaration in support of the motion to appoint a receiver. He asserted that since the hearing, vehicle traffic to and from defendant's property had increased, occurring "at all hours of the day and night, including after 10:00 p.m., and throughout the early morning hours, at 1:00 a.m., 2:00 a.m., and so forth." Deurloo also stated that he had witnessed no repair work being done to address the problems that led to escrow being cancelled. He further asserted that defendant's dog continued to wander the neighborhood at night, and while confined to the yard during the day, "[w]hen any potential buyer comes to the house to look at it, the dog barks just inside the gate." Finally, Deurloo stated that he had witnessed several people move in to defendant's house with boxes and other personal items, indicating to Deurloo that they were not temporary visitors.
Plaintiffs also filed a declaration from an independent real estate agent stating that the current market value of defendant's property was $169,000. This declaration attached a comparative market analysis supporting that price.
An additional mediation was held in October 2009. In November 2009, plaintiffs filed additional declarations. According to Deurloo's declaration: "Piles of trash remain on [defendant's property], the front fence is dilapidated and parts of it have fallen over, old tree stumps and other large pieces of junk are [lying] around." He further stated: "Recently, [defendant] has moved a boat onto the property, and it appears that various roommates move in and out. Some of them stay a few days, some of them a few weeks." Deurloo again complained about the vehicle traffic, roaming dog, lack of observable property improvements, and failure to lower the list price to the current market value. He further stated that the realtor who performed the comparative market analysis "is ready, willing and able to list [the] property at current market value of $169,000, and deal with the issues of the repairs that need to be done."
In response, defendant filed a declaration attaching a list of improvements she made to the house. Between August and October of 2008, the garage was rebuilt, new windows and carpet were installed, the house's sliding glass doors were replaced with french doors, the back porch stairs were rebuilt, and the interior was painted. In July 2009, the wood stove's mantel was repaired. And in September 2009, new light covers were installed in the kitchen. Defendant also chronicled 30 occasions in which the house was shown between October 2008 and September 2009. Defendant's attorney also filed a declaration attaching a comparative market analysis prepared by defendant's realtor recommending a list price of $189,000.
On November 24, 2009, the trial court issued an order granting plaintiffs' motion to appoint a receiver. The order stated that "the details regarding who will be the receiver are to be worked out between both counsel for the parties, or the matter will be brought before the court."
On December 11, 2009, plaintiffs filed a motion asking the trial court to select Alan Lotspeich, CPA, to be the appointed receiver.
On December 18, 2009, defendant filed a notice of appeal from the order appointing a receiver.*fn1
On March 22, 2010, the trial court ordered defendant to post an appeal bond in the amount of $10,000 to obtain a stay of proceedings as to the issue of the appointment of the receiver. Defendant did not appeal the order requiring an appeal bond. The record does not reveal whether an appeal bond was ultimately posted. However, defendant asserts in her opening brief, and plaintiffs do not dispute, that the trial court selected Lotspeich to be the appointed receiver on May 10, 2010. From this, and from defendant's argument on appeal that the proceedings should have been stayed without an appeal bond, we may safely assume that an appeal bond was never posted.
Defendant asserts that the trial court abused its discretion by employing the "drastic" and "extraordinary" remedy of receivership. We disagree.
Code of Civil Procedure section 564, subdivision (b)(3) provides: "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." This provision "gives trial courts the discretion to appoint receivers to carry judgments in abatement proceedings into effect." (City and County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 744 (Daley).)
We review an order appointing a receiver for an abuse of the trial court's discretion. (Alderson v. Alderson (1986) 180 Cal.App.3d 450, 467; Elson v. Nyhan (1941) 45 Cal.App.2d 1, 4-5.) In order to reverse such an order, it must clearly appear that the order was an arbitrary exercise of power. Where reasonable minds might differ with respect to the necessity for the receiver, we may not substitute our conclusion for that of the trial court. (Maggiora v. Palo Alto Inn, Inc. (1967) 249 Cal.App.2d 706, 711; Armbrust v. Armbrust (1946) 75 Cal.App.2d 272, 276.)
Defendant correctly observes that "[r]eceivers are often legal luxuries, frequently representing an extravagant cost to a losing litigant. When it appears that no reasonably certain benefit will result to one litigant, and a distinct disadvantage will result to another, courts should weigh carefully the propriety of appointing a receiver." (Elson v. Nyhan, supra, 45 Cal.App.2d at p. 5.) Defendant argues that the trial court abused its discretion by appointing a receiver because "[p]laintiffs have shown no loss that they are suffering," and the appointment of the receiver would result in a distinct disadvantage to her, i.e., requiring her to pay the expenses associated with the receiver while placing her "out on the street without a home while leaving [her] residence vacant and unoccupied, subject to the whims of any trespasser that might come by." We are not persuaded.
Ample evidence was presented concerning the continuing nuisance occasioned by defendant's presence in the neighborhood. "Evidence to justify the appointment of a receiver may be presented 'in the form of allegations in a complaint or other pleading, by affidavit or by testimony.' [Citation.]" (Armbrust v. Armbrust, supra, 75 Cal.App.2d at pp. 274-275, italics omitted.) Here, the nuisance complaint alleged that defendant operated a drug house that accepted customers at all hours of the night and day. These customers often used foul and vulgar language, made threatening gestures towards plaintiffs, and after their brief visit, would peel out and accelerate rapidly down the street. The complaint also alleged that defendant was responsible for damaging plaintiffs' property in a number of ways, as well as certain incidents of prowling in and around their property, including the shining of a flashlight into their windows. Defendant's dog was also allowed to freely roam the neighborhood. Plaintiffs alleged a myriad of damages, including the loss of use and enjoyment of their property, diminution of their property's value, expenses related to added security measures to protect their property, and medical expenses.
After the nuisance action settled, and defendant agreed to sell her house and move out of the neighborhood, plaintiffs filed several declarations attesting to the fact that the nuisance continued unabated. Indeed, from Deurloo's declarations, the trial court was well within its discretion to conclude that this continuing nuisance was impeding the sale of the property. Plaintiffs will continue to suffer damages until the house is sold. A receiver will ensure that the house is promptly sold at a reasonable price, ending the nuisance. Accordingly, this is not a case in which the appointment of a receiver would result in no reasonably certain benefit to plaintiffs.
Moreover, the record does not support defendant's assertion that the appointment will require her to be placed out on the street. While a receiver has been appointed, the record does not reveal that the trial court has ordered possession of the property delivered to the receiver. "[T]he mere appointment of a receiver is not a determination of what the court shall order him to do." (Bank of Woodland v. Heron (1898) 120 Cal. 614, 617.) Where, as here, a receiver is not appointed to conserve liens on, or other pre-existing rights in, the property for which the receivership is instituted, the mere appointment of the receiver does not, ipso facto, put the receiver in possession of the property. (Id. at p. 619; see also Miller v. Superior Court of Los Angeles County (1923) 63 Cal.App. 1, 10.) The trial court in this case might simply order the receiver to list the property at a lower price to expedite the sale. Of course, defendant will be required to move out once the property sells, but this is precisely what she has agreed to do.
Defendant also points out that "a trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of receivership." (Daley, supra, 16 Cal.App.4th at p. 745; see also Alhambra-etc. Mines v. Alhambra G. Mine (1953) 116 Cal.App.2d 869, 873.) However, she does not indicate which other remedies would have been available and efficacious in securing the prompt sale of her house for a reasonable price given current market conditions in Paradise. Moreover, "the availability of other remedies does not, in and of itself, preclude the use of a receivership." (Daley, supra, 16 Cal.App.4th at p. 745; see also Sibert v. Shaver (1952) 113 Cal.App.2d 19, 21 ["not error to appoint a receiver merely because the plaintiff possessed other remedies which would have afforded ample protection"].)
From the date defendant agreed to sell her house to the date the receiver was appointed, defendant had roughly 19 months to sell her house. In the meantime, while the house was shown to potential buyers and certain improvements made, the nuisance to plaintiffs continued unabated. And from the comparative market analyses prepared by realtors hired by both sides, the trial court was justified in concluding that the list price was unreasonable. Indeed, defendant rejected an offer which turned out to be higher than her own realtor determined the property to be worth given the current market in Paradise. We cannot conclude that the trial court abused its discretion in concluding that appointing a receiver would be an efficacious means of promptly selling defendant's property for a fair and reasonable price.
Finally, in her reply brief, defendant faults plaintiffs for failing to address the "central issue" raised by this appeal: "where Plaintiff has no financial interest in Defendant's property and where there is no monetary judgment does the Trial Court have jurisdiction to appoint a receiver or does the Court abuse its discretion by appointing a receiver without holding an evidentiary hearing, conducting an appraisal, determining fair market value and having knowledge of the qualifications of the receiver[?]" However, as these points were raised for the first time in defendant's reply brief, it would have required prescience for plaintiffs to address them beforehand. "We do not entertain issues raised for the first time in a reply brief, in the absence of a showing of good cause why such issues were not raised in the opening brief." (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322; see also American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Defendant has not demonstrated good cause for failing to raise these points in her opening brief.
In any event, we would reject this contention as well. First, while plaintiffs do not have a financial interest in defendant's property, they certainly have an interest in its prompt sale. Second, there need not be a money judgment in order to authorize the appointment of a receiver. (See Daley, supra, 16 Cal.App.4th at p. 744.) Third, a hearing on the motion to appoint a receiver was held in July 2009. There is no requirement that this be a full evidentiary hearing. Instead, the trial court was permitted to make its decision concerning the appointment based upon the allegations contained in the complaint and the declarations filed in support of and in opposition to the motion. (Armbrust v. Armbrust, supra, 75 Cal.App.2d at pp. 274-275.) Fourth, these declarations set forth the independent assessment of two realtors as to the fair market value of defendant's property. Each assessment was lower than the $190,000 offer rejected by defendant, providing support for the trial court's conclusion that someone other than defendant should be tasked with selling the property. And finally, the order appointing a receiver left open the question of who would be selected to serve as the receiver. As the trial court was not selecting a specific person to serve as the receiver, it makes no sense to complain that the court did not consider the qualifications of this undetermined person.*fn2
We cannot conclude that the trial court abused its discretion by appointing a receiver to carry this stipulated judgment into effect.
We lack jurisdiction to consider defendant's challenge to the order requiring her to post an appeal bond because she failed to appeal from that order.
An order requiring an appeal bond in order to stay enforcement of a final judgment is appealable as an order relating directly to the enforcement of a judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); see Merritt v. J.A. Stafford Co. (1968) 68 Cal.2d 619, 622 [order denying a motion for judgment on an appeal bond is appealable because it "relates directly to the enforcement of a judgment"].) "If an order is appealable, an aggrieved party must file a timely notice of appeal from the order to obtain appellate review." (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239, citing Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) Defendant's notice of appeal expressly limits itself to the November 24, 2009, order appointing a receiver. No appeal was ever taken from the subsequent March 22, 2010, order requiring her to post an appeal bond.
Nor can we construe the notice of appeal as applying to the March 22 order under the rule of liberal construction. (Cal. Rules of Court, rule 8.100(a)(2).) "The notice of appeal is sufficient 'if it identifies the particular judgment or order being appealed.' [Citation.] '"[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified--in either a single notice of appeal or multiple notices of appeal--in order to be reviewable on appeal."' [Citations.]" (Sole Energy Co. v. Petrominerals Corp., supra, 128 Cal.App.4th at p. 239.) Here, the notice of appeal neither identifies the order requiring an appeal bond nor makes it "'reasonably clear'" defendant was trying to appeal from it. (D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361.) Indeed, as the order requiring an appeal bond was entered roughly three months after defendant filed her notice of appeal, it is not temporally possible that she was trying to appeal from that order.
The judgment is affirmed.
We concur: RAYE, P. J. NICHOLSON, J.