Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. EC043484, William D. Stewart, Judge.
Hester Nash, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SUZUKAWA, J.
In this action for the involuntary dissolution and sale of an unmarried couple’s business and home, the trial court appointed a receiver whose motions for interim and final compensation were granted by different judges. In this appeal from the order discharging the receiver and approving his final account, defendant Hester Nash contends that the order must be reversed as premature because the receiver’s compensation motions were adjudicated by different judges, neither of whom had considered her objections or evidence. We conclude that defendant’s claims lack merit and we affirm.
BACKGROUND
Plaintiff Chris Shiohama and defendant Hester Nash, an unmarried couple, owned a business and home together. When their relationship deteriorated, Shiohama sued Nash in September 2006 for partition by sale of personal and real property, involuntary dissolution of their business (Global Domination Industries, LLC), accounting, injunctive relief, appointment of a receiver, and damages.
Shiohama has not filed a respondent’s brief. (See Cal. Rules of Court, rule 8.220 [where no respondent’s brief is filed, the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant].)
In the prior appeal, Nash challenged Judge Michelle Rosenblatt’s interim orders directing the appointment of a receiver, the partition sale of personal and real property, and the involuntary dissolution, winding up, and liquidation of the business. To the extent that Judge Rosenblatt’s orders were appealable, they were affirmed in our prior decision. (Shiohama v. Nash (May 27, 2010, B208390/B212855) [nonpub. opn.].)
In the present appeal, Nash challenges Judge William D. Stewart’s January 22, 2010 order discharging the receiver and approving his final account (the January 22 order). The January 22 order, which was issued while the prior appeal was pending, was not subject to a stay because the required bond was not posted.
According to the January 22 order, the only issues remaining in this litigation concern the parties’ home; until the home is sold, no final judgment will issue. Nevertheless, the court approved the receiver’s final report and compensation, exonerated his bond, and discharged him.
The January 22 order is appealable even though no final judgment has been entered. The order approving the receiver’s final “account is appealable as a final judgment determining matters which are collateral to the main action. (Macmorris Sales Corp. v. Kozak (1967) 249 Cal.App.2d 998, 1001-1002; Brown v. Memorial Nat. Home Foundation (1958) 158 Cal.App.2d 448, 458.)” (Schreiber v. Ditch Road Investors (1980) 105 Cal.App.3d 675, 677, fn. 1; Aviation Brake Systems, Ltd. v. Voorhis (1982) 133 Cal.App.3d 230, 233 [order settling receiver’s account is a final appealable order].)
In the present appeal, Nash contends that the January 22 order discharging the receiver and approving his final report must be reversed as premature for lack of a hearing on her evidence and objections to the receiver’s interim fees. On July 10, 2009, Judge Rosenblatt granted the receiver’s motion for interim fees, which the court described as “appropriate.” The July 10, 2009 order stated that “[a]t the hearing, the Court will determine what, if any, additional fees [the receiver will recover] as final payment.” Based on this and similar statements, Nash argues that Judge Rosenblatt deferred ruling on Nash’s objections to the receiver’s interim fees until the hearing on the receiver’s request for final compensation. However, because Judge Rosenblatt was transferred, that hearing, which Nash refers to as an unfinished “bench trial, ” was conducted by Judge Stewart, who allegedly approved the receiver’s final compensation request without considering Nash’s evidence and objections to the interim fees. Nash contends that Judge Stewart, as the successor judge in an unfinished bench trial, was obligated to consider her evidence and objections to the receiver’s interim fees, and that his failure to do so constituted both an abuse of discretion and a denial of due process.
DISCUSSION
“The amount of fees awarded to a receiver is ‘in the sound discretion of the trial court and in the absence of a clear showing of an abuse of discretion, a reviewing court is not justified in setting aside an order fixing fees.’ (People v. Riverside University (1973) 35 Cal.App.3d 572, 587.)” (Melikian v. Aquila, Ltd. (1998) 63 Cal.App.4th 1364, 1368.)
“‘[A] reviewing court should not disturb the exercise of a trial court’s discretion unless it appears that there has been a miscarriage of justice.... “It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.”’ (Denham v. Superior Court (1970) 2 Cal.3d 557, 566..., quoting Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348-349.)” (Blue Cross of California, Inc. v. Superior Court (2009) 180 Cal.App.4th 1237, 1258.)
As previously mentioned, when Judge Rosenblatt approved the receiver’s interim fee request on July 10, 2009, she expressly stated that the request was “appropriate.” By deeming the request to be appropriate and by granting the receiver’s motion for interim fees, we conclude that Judge Rosenblatt necessarily overruled Nash’s objections to the motion. We have been directed to nothing in the record that would reasonably suggest otherwise. In our view, the statement cited by Nash-“[a]t the hearing, the Court will determine what, if any, additional fees [the receiver will recover] as final payment”-simply denotes the settled rule that interim fees are not final and may be adjusted in the final compensation award. (Cal. Rules of Court, rule 3.1183(a).) We do not view Judge Rosenblatt’s expression of that rule, which contained no reference to Nash’s objections, as a deferral of a ruling on those objections.
Contrary to Nash’s position, the mere approval of the receiver’s final compensation request does not reasonably support an inference that the trial court failed to consider the relevant portions of the record, including the interim fee awards or Nash’s evidence and objections to those awards. In support of her assertion that Judge Stewart failed to consider the record, Nash cites several factors, none of which we find persuasive.
Nash first argues that Judge Stewart was ignorant of the interim compensation hearings and “obviously had no idea that the objections had even been filed, since he was asking where they were moments before he approved the discharge.” Although the reporter’s transcript of the final compensation motion indicates that the latest volume of the court file was missing, the transcript also shows that no ruling was issued on the date of the hearing. Rather than rule from the bench without the court file, Judge Stewart stated that he would take the matter under submission in order “to review the file, if we can locate it, and the papers again.”
When Judge Stewart subsequently issued his ruling, the January 22 order referred to prior rulings and papers in a manner that reasonably suggests the missing file had been located and taken into consideration. Nash points to no evidence to the contrary.
Nash next contends that Judge Stewart was obligated to consider her evidence and objections to the receiver’s prior motions for interim fees, and that his failure to do so constituted an abuse of discretion and a denial of due process. In support of her contention, Nash relies on the general rule that, in a bench trial, a party is entitled to a decision upon the facts by the judge who heard the evidence, and cannot be compelled to accept a decision upon the facts from another judge. (Fox v. Fox (1954) 127 Cal.App.2d 253, 255.) However, Nash has cited no authority for equating a hearing on a receiver’s motion for interim fees with a bench trial. Even if we were to assume for the sake of argument that such a hearing constitutes a bench trial, Nash has identified nothing in the record to undermine our reasonable assumption that, prior to issuing the January 22 order, Judge Stewart had located the missing court file and reviewed it in accordance with his stated intention.
Finally, Nash contends that because the January 22 order does not refer to her evidence and objections to the interim fee requests, “[i]t is simply not credible to believe that Judge Stewart considered the objections, because if he had, ” he would not have approved the final account. The problem with this assertion is that it ignores the basic presumption on appeal that the trial court’s order is correct. “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown....’ [Citations.]” (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; see Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [the appellant must provide an adequate record demonstrating error in order to overcome the presumption on appeal that the order is correct].)
Based on our review of the record, we find no support for Nash’s assertion that her right to due process was violated or that the trial court neglected to consider the relevant evidence and objections that were submitted in opposition to the receiver’s motions for interim and final compensation. In light of Nash’s inability to overcome the presumption in favor of the trial court’s ruling, we conclude that the order must be affirmed.
DISPOSITION
The January 22, 2010 order is affirmed.
We concur: EPSTEIN, P.J. WILLHITE, J.