Taylor v. Unruh, B280376

• Court: California Court of Appeals
• Writing for the Court: SEGAL, J.
• Docket Number: B280376
• Parties: RANDY TAYLOR et al., Plaintiffs and Respondents, v. CAROL UNRUH, Defendant and Appellant.
• Decision Date: 06 November 2018

RANDY TAYLOR et al., Plaintiffs and Respondents,
v.
CAROL UNRUH, Defendant and Appellant.

B280376

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

November 6, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC597720)

APPEAL from an order of the Superior Court of Los Angeles County, Stuart M. Rice, Judge. Affirmed.

Shane E. Coons for Defendant and Appellant.

Delman Vukmanovic, John Vukmanovic and Dana Delman for Plaintiffs and Respondents.

____________________

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INTRODUCTION

In this action for partition and other remedies relating to several pieces of real property, the trial court appointed a receiver to manage one of the properties and collect rents while the case is pending. Carol Unruh, who purports to hold a junior deed of trust on that property with an assignment of rents, appeals from the trial court's order enjoining her from collecting those rents. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Trial Court Appoints a Receiver

In October 2015 Randy and Reyna Taylor and Steve Hawrylack filed this action for partition, an accounting, breach of contract, waste, and conversion against Stephen Forde, alleging he committed various acts of misconduct while managing four pieces of real property the parties co-owned. In November 2015 the trial court granted an application by the Taylors and Hawrylack to appoint a receiver for one of the properties, a four-unit residential building the parties refer to as Maple 2.

The order appointing the receiver provided that, "[p]ending the determination of this action, the receiver shall manage, control, care for, preserve, [and] maintain . . . [Maple 2], and, specifically, shall collect the rents, issues, and profits therefrom . . . pending further order of this Court." The order further provided that all tenants of Maple 2 "are hereby directed, until further order of this Court, to pay over to the receiver all rents . . . now due and unpaid or that may hereafter become due, and all persons and entities liable for such rents are hereby

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enjoined and restrained from paying any rents . . . to Defendant Forde, or his agents, servants or attorneys."

B. The Trial Court Enjoins Forde and Brazil from Collecting Rents

In April 2016 the Taylors and Hawrylack amended their complaint to add Thomas Brazil as a defendant, and the receiver applied for a temporary restraining order prohibiting Brazil and Forde from trying to collect rents from tenants of Maple 2. Evidence supporting the application showed that in March 2016 Brazil wrote tenants of Maple 2 claiming he held a junior deed of trust on the property that included an assignment of rents,¹ stating he was enforcing the assignment because the underlying note was in default,² and instructing them not to pay rent to the receiver but to Brazil's attorney, Unruh. The evidence also showed that Unruh, in a March 2016 email to a tenant, asserted

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Brazil's claim was "superior" to the court's order appointing the receiver, that in March and April 2016 Forde threatened tenants with eviction if they did not pay him rent, and that in April 2016 Brazil sent two tenants a three-day notice to pay rent or quit with instructions to send their rent payments to Unruh.

On April 15, 2016 the trial court granted the application for a temporary restraining order prohibiting Brazil, Forde, "and their agents, attorneys, employees and representatives, and all persons or entities acting under or in concert with them" from (a) demanding, collecting, or receiving rents from Maple 2, (b) communicating with any tenants for that purpose, (c) taking any legal action against the tenants concerning their tenancies or the collection of their rent, (d) "[t]ransferring, conveying, assigning, pledging, deeding, selling, renting, leasing, encumbering, changing ownership of, vesting of title to, or otherwise disposing of" Maple 2, and (e) terminating or otherwise affecting the utilities for Maple 2. The court issued an order to show cause why it should not issue a preliminary injunction restraining Brazil and Forde from engaging in this conduct and set the hearing on the order to show cause for May 5, 2016.

At the May 5, 2016 hearing the trial court found Brazil had not been properly served with the temporary restraining order and order to show cause, and the court continued the hearing to May 26, 2016 to allow the parties to address those defects in service. In the meantime, the court enjoined Forde from engaging in the conduct proscribed by the temporary restraining order and dissolved the temporary restraining order against Brazil.

After the parties stipulated to continue the hearing on the order to show cause to July 14, 2016, the receiver filed a proof of

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service showing proper service on Brazil of the temporary restraining order and order to show cause. In response to the order to show cause, Brazil filed a declaration stating he would continue to insist that Maple 2 tenants pay rents to him because "'[n]either the court nor the receiver has cited any case law or other authority that would supervene my [assignment of rents clause] vis-á-vis the receiver.'" Forde also filed a declaration, stating, "'Since the time Tom Brazil exercised his [assignment of rents on March 7, 2016], I have advised tenants, when asked, to pay the rent to Mr. Brazil.'" Forde further asserted that "Brazil's assignment of rents is superior to the court receiver" and that he (Forde) would "continue to contact the tenants on behalf of Brazil."

On July 14,...