Opinion
H051100
09-24-2024
COUNTY OF SANTA CRUZ, Plaintiff and Respondent, v. MARK O. FARRIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
(Santa Cruz County Super. Ct. No. 21CV01502)
GROVER, J.
The County of Santa Cruz filed this nuisance abatement action against the defendant property owner, Mark O. Farris. Mr. Farris appeals the trial court's interlocutory order approving the receiver's plan to prepare the subject property for sale as a clean and unimproved parcel, including demolishing the property's nuisance structures. Farris did not obtain a stay of the order and demolition was completed while this appeal was pending.
The County moves to dismiss the appeal, arguing that an interlocutory receivership order is not appealable. The County also argues that defendant lacks standing to appeal (because he defaulted in the trial court), and that the demolition of the subject structures rendered the appeal moot. For the reasons explained here, we agree the order is not appealable. As a result, we do not reach the merits of the appeal, nor the County's alternative arguments in support of dismissal.
I. FACTS AND PROCEDURAL HISTORY
The following summary is taken from the receiver's April 2023 report and the complaint's allegations, which are deemed admitted due to the defendants' default (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303). The subject property is owned by Mark O. Farris and his brother Harold J. Farris, who is not participating in this appeal. The property contained two severely damaged and uninhabitable houses, each over one hundred years old; a burned-out metal storage shed; and a detached six-car garage that burned down in April 2023.
A County code compliance investigator inspected the property in 2018 in response to neighbor complaints. The investigator found numerous code violations and dangerous conditions, including the damaged structures, piles of personal property and trash strewn about the property, numerous abandoned vehicles, and evidence of transient camping on the property. The investigator posted a Notice of Violation of Santa Cruz County Code sections 1.12.050 (public nuisance); 12.10.425 (abatement of dangerous building); and 13.10.556 (public nuisance/dangerous condition of neglected property).
After the investigator inspected the property a second time in February 2020 and found the same conditions, the County filed a civil complaint for abatement of public nuisance by injunction and for civil penalties and costs for the code violations. The pertinent Santa Cruz County Code sections were incorporated in and attached to the complaint, including sections authorizing proceedings to abate public nuisance by repair, rehabilitation, demolition or removal.
The property was inspected again in January 2021 by the deputy fire marshal, the County's building officer, and the code compliance investigator, who observed the property remained in a dilapidated and dangerous condition. The County issued another notice and order to repair or abate in March 2021, citing twenty-one substandard building and nuisance violations. The notice advised that failure to repair or abate all code violations within 30 days would lead to further legal action, including receivership. Farris and his brother did not respond or remedy the violations.
The County then commenced this civil action for public nuisance abatement (Civ. Code, §§ 3479, 3480) and for appointment of a receiver, alleging violations of the State Housing Act (Health &Saf. Code, § 17910 et seq.) and failure to comply with the March 2021 Notice and Order "to repair or demolish the substandard buildings at the Subject Property." Farris and his brother did not answer, and the trial court entered their default. The default judgment required the brothers to remedy the code violations within 90 days from entry of judgment, and if permits necessary to legalize the nuisance structures were unobtainable, to "submit all required applications and fees to County Planning for permits to demolish all non-permitted structures on the subject property within 120 days" from entry of judgment.
The trial court also appointed a receiver pursuant to Health &Safety Code section 17980.7. It granted the receiver full powers under Health &Safety Code section 17980.7, subdivision (c) and Code of Civil Procedure section 564 et seq., and directed the receiver to develop and submit a rehabilitation plan for the court's approval. The receiver's first report submitted a rehabilitation and funding plan and requested funding approval. The receiver reported on and recommended accepting a purchase offer from an interested party, which was contingent on demolition of the nuisance structures and removal of debris. The receiver amended the recommendation after receiving a higher offer from another interested buyer, as the later offer also offered the possibility of rehabilitating the property's main house. Based on the later offer, the receiver recommended proceeding with the rehabilitation and funding plan, including demolishing the structures, but without a pre-determined sale to the initial potential buyer.
Although Farris had defaulted, the trial court permitted him to file an opposition to the receiver's report and appear through counsel at the hearing to consider the report. Farris objected to the receiver's recommendation to demolish the nuisance structures rather than accept the second potential buyer's offer. After the hearing, the trial court issued an order approving the receiver's report and amended rehabilitation plan.
Farris petitioned here for a stay of the rehabilitation order, which was denied by a different panel in August 2023. The parties have since informed us that the nuisance structures have been demolished.
II. DISCUSSION
The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) The right to appeal is purely statutory. (Powers v. City of Richmond (1995) 10 Cal.4th 85, 106-110.) It is appellant's burden to explain why the order appealed from is appealable. (California Rules of Court, rule 8.204(a)(2)(B); Lester v. Lennane (2000) 84 Cal.App.4th 536, 557.)
Code of Civil Procedure section 904.1 lists several types of orders or judgments from which an aggrieved party may appeal. Generally, only a final order or judgment is appealable (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 75), however appealability is determined by "the substance and effect of the adjudication, and not the form." (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292.) "If no issues in the action remain for further consideration, the decree is final and appealable. But if further judicial action is required for a final determination of the rights of the parties, the decree is interlocutory." (Ibid.)
A. The Rehabilitation Order Is Not A Final Post-Judgment Order
Farris advances two theories about why the rehabilitation order is directly appealable as a final post-judgment order under Code of Civil Procedure section 904.1, subdivision (a)(2). He asserts the order appointing the receiver was" 'effectively'" a directly appealable default judgment because it granted the County full relief, and therefore the rehabilitation order is a" 'classic order entered after final judgment'" appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). We deem this argument forfeited because Farris provides no reasoned argument or legal authority explaining how an otherwise non-appealable order can be rendered appealable in this way. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
We also reject the alternative argument that if the order appointing the receiver was directly appealable under Code of Civil Procedure section 904.1, subdivision (a)(7), the rehabilitation order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2), which Farris incorrectly asserts "authorizes an appeal from an order entered after a directly appealable order that is not a final judgment." The statute does not authorize an appeal from "an order entered after a directly appealable order," as Farris contends, but rather "an order made after a judgment made appealable by paragraph (1)." (Code Civ. Proc., § 904.1, subd. (a)(2) [emphasis added].) Even assuming an order appointing a receiver could be construed as a judgment-a point Farris fails to establish-the rehabilitation order still would not satisfy the requirements: an appealable post-judgment order cannot be preliminary to future proceedings and cannot be subject to appeal after a future judgment. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 652, 654, 656 (Lakin); In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589 [essential element of appealable post-judgment order is that it be one which is not preliminary to later proceedings]; In re Marriage of Tim &Wong (2019) 32 Cal.App.5th 1049, 1054-1055 [same].)
The rehabilitation order at issue here is preliminary to further trial court proceedings and a future order relating to the property's sale (or other disposition) that will then be appealable. (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 683 [interlocutory judgment authorizing receiver's sale of assets is final and appealable as a collateral matter]; California Fruit Growers' Assn. of Los Angeles v. Superior Court (1908) 8 Cal.App. 711, 713 [dismissing writ of prohibition to restrain receiver from selling receivership property because order to sell property would make order substantially a final decree for purpose of appeal]; Fish v. Fish (1932) 216 Cal. 14, 16 [order directing sale of property held by marital estate to pay receivership fees appealable as a collateral order].)
Farris cites Raff v. Raff (1964) 61 Cal.2d 514 (Raff) and City and County of San Francisco v. Shers (1995) 38 Cal.App.4th 1831 (Shers), but neither decision alters our conclusion that the rehabilitation order is not appealable. The appeal in Raff was not authorized as an appeal from a prior order appointing a receiver, but rather because the order affected enforcement of an interlocutory divorce judgment. (Raff, at p. 518; Shers, at p. 1837].) The order in Shers also was appealable because, like Raff, it followed entry of an actual judgment. (Ibid., fn.6. [order appointing successor receiver appealable under Code Civ. Proc., section § 904.1, subd. (a)(2) because it was made after the same judgment the receivership was created to enforce].)
Both decisions also contradict Farris's theories of appealability. Raff notes that if "an order approving the account of a receiver shows on its face that the account is not final and that the receiver is to continue to hold the assets and act as receiver under orders of the court, it is not an appealable order." (Raff, supra, 61 Cal.2d at p. 519.) Similarly, Shers expressly limits its ruling to cases "where the order being appealed from is postjudgment" and observes that "Lakin would seem to make clear that, where the order being appealed arises during or pending litigation, it is not appealable under [Code of Civil Procedure] section 904.1[(a)(2)]." (Shers, supra, 38 Cal.App.4th at pp. 1840, 1837, fn.6 ["appointment of a receiver is not itself a judgment rendering a subsequent order appealable"].)
B. The Court Did Not Refuse to Grant An Injunction
Code of Civil Procedure section 904.1, subdivision (a)(6) allows an appeal to be taken from "an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction." Farris argues that the rehabilitation order made over his opposition is appealable under that subdivision as an order refusing injunctive relief. An injunction is "a writ or order requiring a person to refrain from a particular act" (Code Civ. Proc., § 525) or commanding a person to perform a particular act. (Luckett v. Panos (2008) 161 Cal.App.4th 77, 84.) Although a "court order nearly always requires some action or inaction from one or both parties or their counsel[,]... this fact does not render nearly all court orders injunctive in nature." (Brown v. Upside Gading, LP (2019) 42 Cal.App.5th 140, 145 [order requiring action or inaction by a party may simply be a proper exercise of the court's inherent authority to control the proceedings before it].)
An order directing or authorizing a receiver to take action is not equivalent to a mandatory injunction. A receiver is an agent and officer of the court, and property in the receiver's hands is under the control and continuous supervision of the court. (Lesser & Son v. Seymour (1950) 35 Cal.2d 494, 499; accord, Gold v. Gold (2003) 114 Cal.App.4th 791, 806; Code Civ. Proc., § 568.)" 'The receiver is but the hand of the court, to aid it in preserving and managing the property involved in the suit for the benefit of those to whom it may ultimately be determined to belong.'" (Marsch v. Williams (1994) 23 Cal.App.4th 238, 248.) "Generally, the functions and powers of a receiver are controlled by statute, by the order of appointment, and by the court's subsequent orders." (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 930; see generally 55 Cal.Jur.3d (Apr. 2024 Update) Receivers, § 58, and cases cited.) As the court's agent and officer, the receiver acts on the court's behalf. Lacking any inherent authority other than as expressly granted, a receiver's recommended plan does not give rise to an injunctive remedy "requiring a person to refrain from a particular act" (Code Civ. Proc., § 525).
Farris cites PV Little Italy, LLC v. MetroWork Condominium Assn. (2012) 210 Cal.App.4th 132 (PV Little Italy) to argue that his opposition to the receiver's request for approval of the rehabilitation plan, including demolition of the nuisance structures, was in effect a request to enjoin the recommended demolition. He thus equates the court's approval of the receiver's plan with a refusal to grant an injunction. PV Little Italy does not support Farris's argument. Although the order found to be appealable in PV Little Italy was not labeled a "judgment" and did not expressly grant an injunction, the reviewing court found that the order's plain language constituted a mandatory injunction because it explicitly required that control of a condominium association be immediately returned to the prior board and a new board election be held. (PV Little Italy, at pp. 142-143.) The court concluded that the order was final and appealable also because it "resolved the core conflict between the parties," and nothing "of substance remains to be done in the litigation, except entry of judgment." (Id. at pp. 143-144.) PV Little Italy did not involve a receivership, nor does it hold that merely opposing court approval of a proposed action amounts to a request to enjoin that action. And unlike PV Little Italy, the order here does not effectively dispose of the entire case.
III. DISPOSITION
The appeal is dismissed for lack of jurisdiction. The receiver's application for leave to file an amicus brief is denied. The County shall recover its costs on appeal as the prevailing party. (Cal. Rules of Court, rule 8.278)
WE CONCUR: Greenwood, P. J., Lie, J.