Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV442597
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I.
Introduction
Patrick Bulmer, a receiver appointed by the court in the underlying case, appeals from an order denying his motion to retain counsel, approving his account, directing payment of his fees and expenses and discharging him as receiver. Bulmer asserts that the court erred in not awarding the full amount of fees and expenses sought, and in assigning him the payments due from Cuschieri’s Auctioneers & Appraisers, Inc., and the other named defendants (Cuschieri) to W. Douglas Weaver (Weaver) under the terms of their settlement agreement. He also maintains that the court erred in denying his request to retain counsel, and in reconsidering, sua sponte, its prior order. We affirm.
II.
Background
The factual and procedural background of this case was summarized by the trial court in its January 17, 2008 ruling. “[Weaver] sued [Cuschieri] for money due and owing and obtained a default judgment. Thereafter, [Weaver] sought to enforce such judgment and was compelled to file numerous procedural motions regarding the addition of other parties as judgment debtors. Eventually, [Weaver] sought appointment of a receiver to aid in the collection of his judgment. . . . [O]n June 14, 2007, the Court appointed Patrick Bulmer as receiver . . . . [¶] The receiver thereafter acted in several ways to effectuate collection of [Weaver’s] judgment. By letter of August 27, 2007, [Weaver] notified the Court in the form of a proposed order that the case had been settled, at least conditionally, and asked the Court to sign an Order Confirming Appointment of Referee and Discharging Orders to Show Cause, which granted the receiver authority to file a report of his activities to and including August 23, 2007 and a motion for approval of claimed fees and expenses. The Court signed such order . . . [¶] . . . and filed it on October 15, 2007. . . . [¶] After doing so, the Court received a letter dated October 19, 2007 from the judgment creditor’s attorney, objecting for the first time to the form of the order and requesting an amended and modified further order. . . . [¶] Thereafter, letters to the Court by and between the judgment creditor through his attorney, the judgment debtors and the receiver ensued, resulting in the Court signing on November 5, 2007 and filing and serving on . . . November 7, 2007 an Interim Order, suspending enforcement of the Court’s October 15, 2007 order respecting the grant of receiver fees, and ordering sua sponte reconsideration of receiver’s motion for specified fees and expenses [at a hearing on] December 17, 2007.”
Following the hearing, the court granted the “receiver’s request that his First Interim Report be approved as his Final Report, that he be discharged from further duties and his bond exonerated. [The court ordered that if] receiver’s fee and allowed expenses are not paid by judgment creditor by January 28, 2008, then judgment debtors shall be jointly liable with judgment creditor for payment thereof, after crediting the amount of $7,500.00 advanced to receiver by judgment creditor. If such payment in full is not effectuated by January 28, 2008, judgment debtors shall pay receiver the remaining settlement amounts due judgment creditor, commencing on February 1, 2008 and continuing on the first day of each month thereafter, until satisfaction of the amounts due receiver occurs. This order supersedes any agreement between judgment creditor and judgment debtors respecting payment of receiver fees and expenses. [¶] . . . [P]ayment of the receiver’s fees and expenses constitutes a priority over payment of judgment creditor’s attorney fee and . . . judgment debtors shall apply their monthly payments accordingly.”
In its February 5, 2008 order, the court approved the receiver’s account and awarded him a total of $25,821.75. The court ordered that if the receiver was not paid that sum by January 28, 2008, the defendants Peter Cuschieri, Angelica Solórzano and Cuschieri Home & Garden, LLC (judgment debtors) “shall be jointly and severally liable for payment thereof and [they] shall pay Receiver the remaining settlement amount due [Weaver], commencing on February 1, 2008 and continuing thereafter until satisfaction of the amount due Receiver occurs, and [Weaver] and [judgment debtors] shall also pay Receiver interest at the rate of 10% per annum from February 1, 2008 on the balance of the principal amount due Receiver . . . .”
This timely appeal followed.
III.
Discussion
A. Denial of Receiver’s Request for Attorney
Bulmer claims that the trial court erred in denying his request, as receiver, to retain counsel to defend against allegations of misconduct and the objections to his motion for payment of fees and expenses. He maintains that a receiver whose fees are challenged is “entitled” to an attorney to defend against the objections.
Bulmer, in his capacity as receiver, was an officer of the court, “installed to deal with property which is the subject of litigation in order to preserve it for disposition in accord with the final judgment. [Citations.] A receiver is not an agent of any party to the action, but instead is a fiduciary who, as an officer and representative of the court, acts for the benefit of all persons interested in the property.” (Shannon v. Superior Court (1990) 217 Cal.App.3d 986, 992 (Shannon); see Cal. Rules of Court, rule 3.1179.) “A receiver occupies a position generally analogous to that held by an executor . . . or by a trustee. . .,” and as such may secure the services of a lawyer who acts as the personal counsel for the receiver. (Shannon, at pp. 993, 994.) The receiver, however, “must not employ an attorney without the approval of the court. The application for approval to employ an attorney must be in writing and must state: [¶] (1) The necessity for the employment; [¶] (2) The name of the attorney whom the receiver proposes to employ; and [¶] (3) That the attorney is not the attorney for, associated with, nor employed by an attorney for any party.” (Cal. Rules of Court, rule 3.1180.) Denying a request to retain an attorney is, like other fees and expenses of the receiver, within the sound discretion of the trial court. (See Venza v. Venza (1951) 101 Cal.App.2d 678, 680 (Venza).)
Bulmer asserts he was entitled to the assistance of counsel because he was “not only defending against a challenge to his fees and expenses, but against various alleged acts of tortious misconduct . . . .” Weaver’s attorney made inflammatory allegations of extortion and contempt of court in an email to Bulmer on August 24, 2007. None of the parties, however, sought to bring an action against Bulmer in this regard, and were prohibited from doing so without first obtaining permission from the court. (Vitug v. Griffin (1989) 214 Cal.App.3d 488, 493.)
Weaver’s attorney has continued to make unprofessional allegations regarding Bulmer in the brief filed with this court. He states, for example, that Bulmer’s performance as a receiver involved an “abject failure faithfully to honor his charge.” The trial court explicitly found to the contrary, and Weaver does not challenge that finding on appeal.
Bulmer also claims that he was entitled to representation by an attorney even “in proceedings that were merely a challenge to his fees and expenses,” in part due to the “novel and complex legal theories as to the priority of payments.” He relies on the following language in Macmorris Sales Corp. v. Kozak (1967) 249 Cal.App.2d 998 (Macmorris) for this proposition: “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.” (Id. at p. 1005.)
Bulmer reads the Macmorris holding too broadly. Macmorris affirmed orders authorizing a receiver to employ counsel to assist him “with reference to the objections to his account,” and authorizing payment of fees to the attorneys retained. (Macmorris, supra, 249 Cal.App.2d at pp. 1001-1002.) The challenge to the receiver’s fees and expenses in Macmorris, however, was “much more than routine. Items aggregating approximately $60,000 [in 1967] were called into question, with a request that the receiver be surcharged. The attorney for the objectors announced his intention to conduct a three-day trial. The receiver could expect to be a witness. . . . [H]e could hardly be expected to act in propria persona, conducting a trial of such gravity and complexity . . . .” (Id. at p. 1005.) The court affirmed the trial court’s order authorizing retention of counsel and payment of attorney fees. (Ibid.)
In contrast here, no objections were filed to the receiver’s motion for fees and expenses. The “complex and novel” legal issue regarding priority of payments was resolved in Bulmer’s favor after Bulmer provided one case authority, Schreiber v. Ditch Road Investors (1980) 105 Cal.App.3d 675, to the court. Most significantly, Bulmer has claimed no prejudice as a result of the court’s order denying his request to retain counsel. We perceive no abuse of discretion in the court’s order denying Bulmer’s request to retain counsel.
Despite the fact that Weaver did not appeal from that order, he reargues the issue in his brief.
B. Reconsideration of Order
Bulmer next contends that the trial court erred in reconsidering its October 15, 2007 order. He claims that the trial court reconsidered the order based on letters sent to the court by Cuschieri and David McKim, counsel for Weaver, and not on its own motion.
“[A] trial court has inherent authority to correct an erroneous ruling on its own motion.” (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303 (Barthold).) “If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 (Le Francois).) “We cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling (although any such communication should never be ex parte). We agree that it should not matter whether the ‘judge has an unprovoked flash of understanding in the middle of the night’ [citation] or acts in response to a party’s suggestion.” (Ibid., citing (and disapproving) Remsen v. Lavacot (2001) 87 Cal.App.4th 421, 427.)
Bulmer nonetheless claims that the court erred because it reconsidered its order based on “an improper motion that did not comply with Code of Civil Procedure § 1008 or § 473(b).” In Barthold, the appellant likewise argued “that an order granting reconsideration must be reversed if its issuance was prompted by the filing of a motion for reconsideration that did not meet the requirements of the reconsideration statutes.” (Barthold, supra, 158 Cal.App.4th at p. 1309.) The court rejected that assertion, noting, “[T]here is nothing in the Supreme Court’s opinion in Le Francois[, supra, 35 Cal.4th 1094] that justifies this conclusion.” (Ibid.)
Here, the court indicated in its November 7, 2007 interim order that it was “ordering sua sponte reconsideration of receiver’s motion for specified fees and expenses . . . .” Regardless of whether the impetus for the court’s decision to reconsider was a flash of insight or a claimed “improper motion,” the court did not err in reconsidering the prior order.
C. Payment of Receiver From Periodic Settlement Payments
Bulmer maintains that the court erred in “ordering payment of [his] fees subject to the terms of the settlement agreement between the parties.” He contends the court abused its discretion in ordering assignment of the remaining payments from Cuschieri to Weaver under the settlement agreement “as the sole practical method of payment.”
The court ordered payment of the $25,821.75 it awarded to Bulmer by January 28, 2008. The assignment of the periodic settlement payments to Bulmer was to take place only if he were not paid by that date. The court ordered that “payment of the Receiver’s fee possesses priority over payment of plaintiff/judgment creditors’ attorney and his attorney’s fee lien, and that Receiver may seek enforcement of this order as a court judgment as necessary and advisable.”
We are unable to discern either how Bulmer has been injured by this assignment provision, or what remedy he seeks from this court. The court ordered that Bulmer be paid in a lump sum by a date certain, but if he was not, provided him with an additional method of collecting his fees via assignment of the periodic settlement payments. The court also provided that its order could be enforced as a judgment. We find no error in the court’s order in this regard.
D. Denial of Certain Fees and Expenses
Bulmer claims the court erred in denying certain of his claimed fees and expenses. We review the trial court’s order in this regard for abuse of discretion. (Melikian v. Aquila, Ltd. (1998) 63 Cal.App.4th 1364, 1368.) “The rule is well established that the compensation to be allowed receivers . . . is primarily within the sound discretion of the trial court.” (Venza, supra, 101 Cal.App.2d at p. 680; see Macmorris, supra,249 Cal.App.2d at p. 1005.) “[I]n the absence of a clear showing of an abuse of discretion” we must affirm the order. (Venza, at p. 680.)
Bulmer argues that the court erred in denying his request for $6,462 in fees and $357.79 in expenses beyond those claimed in the First Interim Report, claiming that the reasons given by the trial court were erroneous. The court indicated that the claim for these additional fees and expenses “lack[ed] any notice of motion, as required by law[,] . . . includes services for which compensation was previously awarded [and] not only did the Court permit the receiver a charge of $90.00 per hour for travel time, but also honored his claim for mileage expenses to and from Redwood City and Oroville, California.”
The trial court awarded Bulmer fees 28.9 hours of travel time between Oroville and Redwood City. The court also awarded him expenses for automobile rental, gasoline, bridge tolls, and lodging.
The court’s August 30, 2007 order expressly indicated that Bulmer “shall take no further action in aid of execution as receiver and need file no inventory nor (pending further order of court) any reports covering any period after August 23, 2007 except that Mr. Bulmer shall file a report of his activities up to August 23, 2007, and may file a motion for approval of claimed fees and expenses.”
Bulmer does not dispute that his claim for additional fees and expenses included some amounts for which the court had already awarded compensation. Instead, he asserts that because the court was reconsidering its order, “all aspects of that order should be up for reconsideration.” Regardless of whether that was the case, the award or denial of Bulmer’s fees and expenses was within the sound discretion of the trial court. “[I]n the absence of a clear showing of an abuse of discretion, a reviewing court is not justified in setting aside an order fixing fees.” (Melikian v. Aquila, Ltd., supra, 63 Cal.App.3d at p. 1368.)
III.
DISPOSITION
The order is affirmed. In the interests of justice, each party is to bear its own costs on appeal.
We concur: MARCHIANO, P. J., MARGULIES, J.