Opinion
H049796
12-05-2023
COUNTY OF SANTA CRUZ, Plaintiff and Respondent, v. JOHN STEPHEN CALLAHAN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 19CV01017)
LIE, J.
Almost three years after first issuing provisional orders for the remediation of code violations on John Stephen Callahan's property, the trial court on the County of Santa Cruz's ex parte application entered an order appointing a court receiver to "coordinate and monitor the abatement" of numerous code violations. Among other relief, the order authorized the receiver to borrow funds on behalf of the receivership estate as superpriority liens against the property and required Callahan to immediately vacate the property. On appeal, Callahan's principal contention is that trial court should not have granted the requested relief on an ex parte application. The ex parte grant of the county's application appears to have been procedurally defective, and the County's failure to acknowledge the defects leaves us troubled by the likelihood of recurrent abuse of the ex parte process. But Callahan acknowledges that his counsel appeared and argued at the ex parte hearing and has not provided a record of the oral proceeding. (See Cal. Rules of Court, rule 8.120(b).) Accordingly, Callahan has not shown that he preserved his claim of procedural error in the trial court or that there was a reasonable probability of a more favorable result had the County proceeded by noticed motion. Because Callahan has not established a prejudicial abuse of discretion on this limited record, we affirm.
Our rule citations are to the California Rules of Court.
I. BACKGROUND
Callahan owns 2.4 acres in the Santa Cruz mountains that are zoned for "Residential Agriculture" and permitted for at least one single-family dwelling. At all relevant times, there have been multiple structures on the property.
In April 2019, the County initiated this nuisance action against Callahan, alleging that the property had been "the subject of numerous citizen complaints and County code enforcement actions." Specifically, the County alleged the presence of unsafe, unpermitted structures on the property, human habitation of those unsafe structures, and improper outdoor storage on the premises of personal property, "including . . . inoperable and unregistered vehicles, construction materials, and propane tanks and all other items as described in County Code Section 13.10.556." Concurrently with the filing of its complaint, the County obtained a temporary restraining order and order to show cause why a preliminary injunction should not issue, barring, among other conduct, "all forms of occupancy on any portion of the subject property other than within the permitted single-family dwelling ('SFD'); entering or occupying any structures on the subject property other than the permitted SFD; modifying any existing structures in any way without required building permit(s); causing or creating a disturbance or nuisance of any kind that may be subject to enforcement by [any] County agenc[y] . . .; [and] maintaining or permitting the accumulation of outdoor-stored property." Callahan was served with the TRO the same day.
In September 2019, the trial court granted the County a preliminary injunction over Callahan's opposition. The preliminary injunction barred Callahan from entering or occupying any structures on the property-"other than the permitted SFD"-and set a schedule for Callahan to abate certain alleged nuisances on the property. The required abatement included clearing "neglected property" and obtaining permits necessary to either bring the non-permitted structures into compliance or demolish them.
In September 2021, two years after issuance of the preliminary injunction, three County officials inspected Callahan's property. The officials identified numerous "substandard conditions" in the "Subject Property"-the entire 2.4-acre property and its multiple remaining structures-including conditions related to wiring, plumbing, weather protection, and accumulated rubbish.
Two of the officials would later declare that "due to the nature and extent of these violations of State and local law, individually and cumulatively, the Subject Property substantially endangers the health and safety of occupants, first-responders, neighbors, and the public. The Subject Property has substandard, incomplete, illegal, and dangerous electrical wiring, creating a substantial risk of fire or electrocution. The faulty weather protection and failed roofing have allowed water to penetrate throughout all structures, introducing mold and other vectors, and compromising the integrity of the construction materials. The accumulation of debris[]increases the risk and speed of fire propagation and endangers neighboring structures and the community at large. Furthermore, such debris attracts unwanted vectors such as rats and other vermin, which carry and spread dangerous diseases." The third addressed only the fire and electrocution risks posed by the wiring and the accumulation of outdoor and indoor debris.
There are slight differences in the wording of the two declarations. The declaration quoted here refers to multiple structures, whereas the other is written as if there was only one structure on the property.
On September 24, 2021, the County issued a Legal Notice and Order to Repair or Abate (N&O), posting a copy on Callahan's property. The four-page N&O defined the term "Subject Property" to mean the entire parcel, and identified sixteen code violations found on the Subject Property, organized by code section. Through the N&O, the County "ordered [property owners and interested parties] to repair or abate all code violations on the Subject Property, including, but not limited to, all unlawful conditions identified herein" and to comply by October 25, 2021. The N&O included the warning that failure to abate the unlawful conditions would warrant "further legal action, including receivership." (Boldface omitted.)
For example, the first violation, pertaining to "substandard wiring" under Health and Safety Code section 17920.3, subdivision (d) provided: "The wiring on the Subject Property is not in good and safe working condition. Excessive use of extension cords and use of extension cords in lieu of permanent wiring. These violations must be repaired and abated."
One day after the October 2021 compliance deadline, the County posted a notice that in "not less than three days" the County intended to "file a petition for the appointment of a receiver over the Subject Property" in this litigation "based on the longstanding and ongoing nuisance conditions that exist on the Subject Property" (three-day notice). The notice did not allude to the potential filing of an ex parte application.
One month later, the County amended its complaint to add a cause of action for violation of Health and Safety Code section 17910 et seq. and a prayer for the appointment of a receiver with authority to fund the receivership through super-priority liens on the Subject Property.
Undesignated statutory references are to the Health and Safety Code.
On February 2, 2022, more than three months after posting the three-day notice, a county official inspected the property again and determined that the violations identified in the September 2021 inspection and N&O persisted. The official opined that the ongoing "violations of State and local law continue to pose a substantial danger to the health and safety of occupants, first-responders, neighbors, and the community."
Fourteen days after this inspection, during which time the County secured the agreement of two financial institutions and an easement holder with interest in the property, the County gave Callahan notice that it intended to seek "appointment of a receiver and other relief" on an ex parte basis the following day. The application and supporting documents, filed the same day, comprise over 250 pages, including a proposed order and declarations from a representative for the proposed receiver.
The County's proposed order included proposed findings to the effect that "an order appointing a receiver is a necessary measure to coordinate and monitor the abatement of" properly noticed violations on the property. The proposed order directed the appointment of Silver &Wright LLP as the receiver, authorizing the receiver to (1) immediately borrow up to $25,000 on behalf of the receivership estate upon execution and filing of the receiver's oath and a $10,000 bond pursuant to Code of Civil Procedure section 567, subdivision (b); (2) "take full and complete possession and control of the Subject Property" and "temporarily relocate the occupants of the Subject Property to effectuate" its rehabilitation; and (3) "borrow funds as necessary to pay for the rehabilitation of the Subject Property and to pay the costs and debts of the receivership estate" as "super-priority liens against the Subject Property." The proposed order included "mandatory injunctions" (boldface &capitalization omitted) that "all persons" vacate the Subject Property and "not return . . . without express permission" from the court or the receiver and that "Callahan . . . immediately surrender possession and control of the Subject Property" to the receiver.
The ex parte application itself did not specify that the County would be seeking an order expelling Callahan from his residence, although it did disclose that the County was seeking an ex parte order appointing the receiver, enjoining Callahan "from interfering with the receiver in the operation of the Subject Property[,]" and authorizing the receiver to "secure funding for the receivership estate through . . . first priority liens on the Subject Property."
The next day, following an unreported hearing, the trial court entered the proposed order without modification other than to insert the date and time for a status conference about two months in the future.
Callahan appealed the same day.
II. DISCUSSION
Callahan contends that the trial court erred in ordering him to vacate his residence, appointing a receiver, and granting super priority liens using an ex parte process that deprived him of a reasonable opportunity to mount an effective opposition. Although the record before us suggests that the County's resort to the ex parte process was driven at least in part by its own delays or tolerance for delay, Callahan has not provided a sufficient record to demonstrate that he preserved his procedural objections for appeal.
Beyond the procedural issues, Callahan contends that the trial court erred because the record did not support (1) the existence of code violations or emergencies specific to and justifying the exercise of authority over his residence or (2) the authorization of super-priority liens. We reject these contentions.
A. Standard of Review and Applicable Legal Principles
"[A] judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. [Citation.] 'In the absence of a contrary showing on the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." '" (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust).) We review under the deferential abuse of discretion standard both trial court rulings on ex parte applications and trial court receivership orders. (People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257 (Allstate); City of Desert Hot Springs v. Valenti (2019) 43 Cal.App.5th 788, 793 (Valenti).)" 'An abuse of discretion is demonstrated if the court's decision was not supported by substantial evidence or the court applied an improper legal standard or otherwise based its determination on an error of law.'" (Valenti, supra, 43 Cal.App.5th at p. 793, italics omitted.)
1. Receiverships under Sections 17980.6 and 17980.7
"If a building is constructed, altered, converted, or maintained in violation of" specified provisions, orders, or notices "or if a nuisance exists in a building or upon the lot on which it is situated, the enforcement agency shall . . . institute appropriate action or proceedings to prevent, restrain, correct, or abate the violation or nuisance" (§ 17980, subd. (a).)
"Sections 17980.6 and 17980.7 'compose a statutory scheme providing certain remedies to address substandard residential housing that is unsafe to occupy.'" (County of Sonoma v. Quail (2020) 56 Cal.App.5th 657, 677 (Quail).)" 'As explained in [City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905 [(Gonzalez)]], when a building is maintained in a manner that violates state or local building maintenance regulations and "the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered" (Health &Saf. Code, § 17980.6), the local enforcement agency may issue a notice and order requiring repair or abatement of the unlawful conditions. (Gonzalez, supra, 43 Cal.4th at pp. 919-920 ....) If the owner of the building thereafter fails to comply with the notice and order in a reasonable period of time, the enforcement agency can seek an order from the trial court appointing a receiver to oversee compliance. (Id. at p. 921 ....)'" (Valenti, supra, 43 Cal.App.5th at p. 793.)
After "the owner fails to comply within a reasonable time with the terms of the order or notice issued pursuant to Section 17980.6," section 17980.7, subdivision (c) prescribes "what the trial court must consider before appointing a receiver" (Valenti, supra, 43 Cal.App.5th at p. 794, fn. omitted): (1) "whether the owner has been afforded a reasonable opportunity to correct the conditions cited in the notice of violation" (§ 17980.7, subd. (c)(1)); and (2) whether the person to be appointed as receiver "has demonstrated to the court their capacity and expertise to develop and supervise a viable financial construction plan for the satisfactory rehabilitation of the building" (§ 17980.7, subd. (c)(2))." 'The obvious and stated purpose of section 17980.6 [and section 17980.7] is to protect the health and safety of residents who might be substantially endangered by unsafe building conditions.'" (Quail, supra, 56 Cal.App.5th at p. 677.)
Any receiver appointed to section 17980.7 "shall have all of the following powers and duties in the order of priority listed in this paragraph, unless the court otherwise permits: [¶] (A) To take full and complete control of the substandard property. [¶] . . . [¶] (G) To borrow funds [for specified purposes] and, with court approval, secure that debt and any moneys owed to the receiver for services performed pursuant to this section with a lien on the real property upon which the substandard building is located. The lien shall be recorded in the county recorder's office in the county within which the building is located. [¶] (H) To exercise the powers granted to receivers under Section 568 of the Code of Civil Procedure." (§ 17980.7, subd. (c)(4); see also Code of Civ. Proc., § 568 ["The receiver has, under the control of the Court, power . . . to take and keep possession of the property . . . and generally to do such acts respecting the property as the Court may authorize"]; Quail, supra, 56 Cal.App.5th at p. 678 ["we do not read section 17980.7 to preclude the use of a super-priority lien when it is authorized by the trial court in an appropriate circumstance"]; City of Sierra Madre v. SunTrust Mortgage, Inc. (2019) 32 Cal.App.5th 648, 658-660 (SunTrust) [discussing power to use super-priority liens].)
2. Ex Parte Proceedings
"Various court rules govern ex parte proceedings, which are designed to afford relief on an essentially emergency basis. 'A court will not grant ex parte relief "in any but the plainest and most certain of cases."' ([Allstate, supra,] 37 Cal.App.5th [at p.] 257 ....)" (Newsom v. Superior Court (2020) 51 Cal.App.5th 1093, 1097 (Newsom).) In general, applicants are required to "make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." (Rule 3.1202(c); see also Newsom, supra, 51 Cal.App.5th at p. 1097; Rule 3.1103(a)(2) [application for appointment of a receiver is a law and motion proceeding].)
Rule 3.1175 contains additional requirements for ex parte applications for appointment of a receiver. Pursuant to rule 3.1175(a)(1) the County was required to "show in detail by verified complaint or declaration[] [¶] . . . [t]he nature of the emergency and the reasons irreparable injury would be suffered by the applicant during the time necessary for a hearing on notice." The rules reflect the recognition that "[t]he power of a court to appoint a receiver is a delicate one, . . . to be exercised with caution lest injury be done to the parties," because "[t]he remedy is an extraordinary and harsh one ...." (Cohen v. Herbert (1960) 186 Cal.App.2d 488, 495 (Cohen); see also Fischer v. Superior Court (1895) 110 Cal. 129, 138 ["so harsh a measure as the appointment of a receiver to take property . . . without trial [and] without previous notice to the defendant . . . would be unjustifiable, except where it clearly appeared that irreparable injury would be done during the few days necessary for a hearing on notice"].) Accordingly, "[c]ourts should grant reasonable time to parties to prepare for a hearing on an application for the appointment of a receiver....So serious a matter as the appointment of a receiver should not be made without a full and complete hearing unless the due administration of justice clearly requires it." (Cohen, supra, 186 Cal.App.2d at p. 495; see also Slinack v. Superior Court (1932) 216 Cal. 99, 106-107 [suggesting that a court "act[s] in excess of its jurisdiction" in appointing a receiver ex parte, absent "a case of greatest emergency"]; rule 3.1202(c).)
In another context, irreparable injury has been described as an injury that cannot adequately be compensated in damages. (See DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 721-722.)
Thus, "[w]hen a receiver is appointed without notice, the matter must be made returnable upon an order to show cause why the appointment should not be confirmed. The order to show cause must be made returnable on the earliest date that the business of the court will admit, but not later than 15 days or, if good cause appears to the court, 22 days from the date the order is issued." (Rule 3.1176(a), entitled "Confirmation of ex parte appointment of receiver"; see also rules 1.5(b)(1) [" 'Must' is mandatory"], 3.11773.1178 [distinguishing between hearing on notice, ex parte hearing, and hearing for confirmation of ex parte appointment].) "The adverse parties are entitled to one continuance to enable them to oppose the confirmation. If a continuance is granted under the subdivision, the order to show cause remains in effect until the date of the continued hearing." (Rule 3.1176(d).) "At the hearing of an application for an appointment of a receiver on notice or at the hearing for confirmation of an ex parte appointment, each party appearing may, at the time of the hearing, suggest in writing one or more persons for appointment or substitution as receiver, stating the reasons. A party's suggestion is without prejudice to its objection to the appointment or confirmation of a receiver." (Rule 3.1177.)
B. Abuse of the Ex Parte Process
Broadly, Callahan's core contention on appeal is that the County misused the ex parte process to preclude him from mounting an organized opposition and the trial court erred by acceding to the County's procedural choice. We agree that the process by which the trial court appointed the receiver and granted related relief appears to have violated mandatory provisions of the California Rules of Court. Further, we will assume that the County's evidence was insufficient to justify resort to ex parte procedures, even if those procedures were followed. But, on the limited record before us, Callahan has neither preserved his challenge to the use of an ex parte procedure nor articulated a cogent theory of prejudice.
1. Whether the Ex Parte Procedure Comported with the Rules of Court
The trial court's order appears to be inconsistent with the provisions of the prescribed procedure for the ex parte appointment of a receiver. Because the order was not "returnable upon an order to show cause why the appointment should not be confirmed," Callahan did not have the opportunity to show cause why the appointment of the receiver should not be confirmed and, potentially, to suggest that a different receiver be appointed. (Rules 3.1176-3.1177.)
The County should have been aware of the confirmation process and Callahan's right to propose a different receiver. In fact, in its briefing to the trial court, the County cited rule 3.1177 to support the assertion that it was "entitled to nominate the person to be appointed as the Court's receiver." But it failed to mention that the same sentence of that rule entitled Callahan to make a competing nomination at either a hearing for appointment of a receiver on notice or at the hearing for confirmation of an ex parte appointment. To the extent rule 3.1176 could in isolation be considered ambiguous, the omitted portion of rule 3.1177 clarifies that Callahan was entitled to either an appointment hearing on notice or a post-appointment confirmation hearing on notice. The County's reliance on rule 3.1175 for the proposition that a receiver may be (provisionally) appointed on an ex parte application is beside the point.
At oral argument, the County argued that the appointment of a receiver was with notice, for the purpose of rule 3.1176, in that the County had given notice months earlier of its intent to appoint a receiver pursuant to sections 17980.6 and 17980.7. Section 17980.6 addresses the order or notice to repair or abate; section 17980.7 authorizes the filing of a petition for receivership, subject to service of the petition in the manner of a summons, to obtain judicial redress for noncompliance with that notice. In the County's view, the service of the section 17980.7 petition-without a date for hearing-is the only notice required by rule 3.1176, and that it may thereafter at any time of its election obtain ex parte adjudication of the merits of that petition without compliance with rules 3.1176, 3.1177, and 3.1178. We decline to adopt an interpretation of the rules that would collapse the distinction between an ex parte hearing and a hearing "on notice" by conflating notice of an intent to apply for receivership at an unidentified point in the future with due notice of the application itself.
The County argues that "[c]ase law . . . supports [its] use of ex parte procedures for the appointment of a receiver[] in nuisance property cases pursuant to . . . section 17980.7." Unable to cite published authority in support of this assertion, the County instead cited two unpublished cases and included the following footnote: "Counsel recognizes that the [cited] cases are unpublished and therefore have no precedential value per California Rule of Court 8.1115, but nevertheless references them here given the dearth of published cases addressing the issue." But under rule 8.1115(a), an unpublished opinion is not merely devoid of precedential value: subject to exceptions inapplicable here, "an opinion . . . that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action." At oral argument, the County was unable to explain its decision to cite unpublished authority. We are thus left to infer that the County chose to violate the very rule it invoked, even in an appeal taking issue with its noncompliance with other rules of court, those governing its resort to ex parte processes. Whatever the County's intention, the practice and justification are improper.
We agree with the general contention that ex parte procedures for the appointment of a receiver may be used in a section 17980.7 proceeding. The issue before us is not so much whether they may be used, but whether they were followed.
The multi-step process contemplates ex parte appointment as an initial step- where justified by emergency circumstances-to be followed by a duly noticed postappointment opportunity to contest that ex parte order at the confirmation stage. Callahan was entitled to either oppose the appointment of a receiver through a hearing on a noticed motion or through a hearing to confirm the ex parte appointment. Nothing in the ex parte order reflects any acknowledgment of that right.
2. Whether the County Adduced Sufficient Evidence to Justify its Resort to the Ex Parte Procedure
Callahan contends that the County's evidentiary showing was insufficient to demonstrate an exigency warranting issuance of the challenged orders on an ex parte basis. (See rule 3.1175(a)(1).) We assume without deciding that he is correct.
The evidence adduced by the County supports the inference that the property- most significantly due to its substandard electrical wiring, accumulated debris, and rural forested location creating a risk of fire or electrocution-endangered residents, first responders, neighbors, and the community at large. We do not question the credibility of these declarations. But aside from categorizing the risk as "substantial," the declarants did not explain why these long-standing risks-long known to the County-only now warranted immediate action by the trial court with a day's notice to Callahan rather than the 16 court days otherwise required by statute. (See Code Civ. Proc., § 1005, subd. (b).)
In its application, the County cited rule 3.1175 to argue that ex parte relief was justified because the County, the occupants and neighbors of Callahan's property, and the community were "in immediate danger of significant prejudice and will suffer irreparable" injury because each of the code violations constituted "immediate hazards." The County stopped short of projecting any timeframe in which it anticipated irreparable injury to occur. Instead, it argued that "the dangerous conditions of the Subject Property" exempted the County from any requirement of demonstrating that the conditions presented an "emergency." The proposed order, which the trial court signed, does not mention rule 3.1175, contain any findings pertaining thereto, or address the propriety of proceeding on an ex parte basis. On appeal, the County refrains from setting forth the plain language of rule 3.1175, but argues that its requirements were satisfied because the County showed "significant risks of substantial danger and irreparable harm" that will continue to threaten the community until rehabilitated.
To the extent exigency was supported by the risk of fire, the County submitted a declaration from one of Callahan's neighbors discussing the "immense" danger posed by "incorrectly set up generators in our area during the fire season" in relation to Callahan's conduct in October 2020. (Boldface omitted.) But the County's presentation is silent as to whether this risk was acute in February 2022-the month in which the County obtained ex parte relief-or when the receiver sent Callahan notice of eviction a year later.
The County's evidence, which under rule 3.1175 was required to show in detail the reasons irreparable injury would be suffered during the time necessary for a hearing on notice, stopped short of supplying duly sworn opinions to that effect. We note as well that the fits and starts of the County's approach over time to inspection of the property would have undermined such a declaration. For present purposes, we will assume that the County's declarations are insufficient under rule 3.1175.
The operative complaint seeking appointment of a receiver, filed in December 2021, was not verified.
3. Forfeiture of Challenges to the Ex Parte Procedure
Callahan's briefing, however, never squarely explains why he believes any error requires reversal. He invokes "standards of due process" without articulating a constitutional analysis, asserting that he was not given an opportunity to collect evidence and prepare a legal argument opposing the ex parte application. The County contends that "Callahan was not deprived of the opportunity to duly oppose the County's application" because Callahan's counsel "appeared and made arguments" at the ex parte hearing and Callahan had for months been aware that the County intended to pursue a receivership.
The potential errors we have identified above are procedural-they amount to reasons why the trial court should not have ruled on the County's motion ex parte, but should instead have heard the matter on notice. Without a record of the ex parte hearing, however, Callahan has not demonstrated that he preserved his claims of procedural error for appeal. (See generally Perry v. Kia Motors America, Inc. (2023) 91 Cal.App.5th 1088, 1098-1099.)
" 'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method .... The circumstances may involve such intentional acts or acquiescence to be appropriately classified under the headings of estoppel or waiver .... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.'" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Contentions alleging violations of due process rights can be forfeited by failing to raise them in the trial court. (See D.Z. v. L.B. (2022) 79 Cal.App.5th 625, 632-633 (D.Z.).)
" 'It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal . . . that he had no notice of the motion or that the notice was insufficient or defective.'" (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7-8 (Alliance Bank).) "The principal purpose of the requirement to file and serve a notice of motion a specified number of days before the hearing [citation] is to provide the opposing party adequate time to prepare an opposition. That purpose is served if the party appears at the hearing, opposes the motion on the merits, and was not prejudiced in preparing an opposition by the untimely notice." (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343.) An appellant who "had ample opportunity" to object in the trial court to inadequate notice but failed to do so "deprive[s] [the respondent] of the chance to argue the issue or cure the alleged error[,] . . . prevent[s] the trial court from making any ruling on the point," and forfeits the claim of error. (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 826.)
In Alliance Bank, the court applied this rule in the context of an ex parte application heard on eight days' notice by mail, where a motion on 15 days' written notice was required, no written opposition was filed, and counsel appeared and argued at the ex parte hearing on behalf of the appellant. (See Alliance Bank, supra, 161 Cal.App.3d at pp. 4-5, 7-8; see also Oiye v. Fox (2012) 211 Cal.App.4th 1036, 10651067; In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13 (Obrecht).)
The parties agree that Callahan's counsel-like the appellant's counsel in Alliance Bank-appeared at the ex parte hearing and made arguments on his behalf. We accordingly must look to whether counsel otherwise preserved his claim of abuse of the ex parte process by objecting to the propriety or adequacy of the ex parte procedure and, once appointment was ordered ex parte, seeking further opportunity to be heard regarding confirmation of the appointment. We find no indication that he did so, as Callahan has failed to provide any record of the oral proceedings at the contested ex parte hearing. (See rule 8.120(b); Foust, supra, 186 Cal.App.4th at p. 186 [appellant raising an issue requiring consideration of oral proceedings must provide a reporter's transcript or suitable substitute]; Korman v. Princess Cruise Lines, Ltd. (2019) 32 Cal.App.5th 206, 212.) Accordingly, Callahan forfeited his objections to the use of an ex parte procedure. His procedural arguments therefore do not supply a basis for reversal.
In Carlton v. Quint (2000) 77 Cal.App.4th 690, the court provided guidance to parties faced with summary judgment motions on inadequate notice. There, Carlton filed a written opposition to the summary judgment motion and appeared and argued the motion, but at no time requested a continuance or contended he was prejudiced by the inadequate notice or service. (Id. at p. 697.) The court held that he waived any alleged defective service or inadequate notice. (Id. at p. 698.) The court explained that counsel presented with a similar dilemma could either (1) appear at the hearing without filing an opposition, making a complete record of the defective service and the inability to prepare a proper response to preserve the record for appeal in the event the continuance was denied; or (2) prepare the best opposition possible under the circumstances before appearing at the hearing while explaining why a more complete opposition was not able to be filed before appearing at the hearing to request a continuance, explain the prejudice caused by going forward with inadequate notice or service, and argue the merits if the continuance was denied. (Id. at pp. 697-698; see also Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 650 [party's participation in a hearing after objecting to the hearing as unauthorized does not constitute waiver by acquiescence].) The fundamental problem here is that there is no record demonstrating that Callahan objected that the ex parte procedure failed to comport with legal requirements. To the extent the proceedings were unreported, Callahan could have used a settled statement. (See rule 8.137.)
Moreover, Callahan has not articulated a persuasive theory of prejudice flowing from any improper use of the ex parte procedure. Conceding that he is unable to make a concrete showing of prejudice, Callahan invites us to presume that with more time he could have developed evidence and argument responsive to at least some portion of the relief the trial court granted on an ex parte basis-particularly his immediate eviction and the appointment of an "aggressive" receiver, as opposed to some other receiver. Although we can surmise that Callahan would have endeavored to make productive use of additional time, had the County proceeded by noticed motion, we are unable to discern what specific new or different evidence or argument Callahan would have presented. Importantly, there is no record of any arguments Callahan raised in the trial court. (See Obrecht, supra, 245 Cal.App.4th at p. 13.) Instead, at oral argument Callahan asserted that he should not be required to show prejudice because we cannot know what might have been if he had been given a hearing on notice. While Callahan in his briefing alluded to due process, due process claims may be forfeited (D.Z., supra, 79 Cal.App.5th at pp. 632-633) and Callahan has not argued that misuse of the ex parte process constitutes structural error (see generally Severson &Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 950-951 [discussing structural error where trial court held hearing in Sepehry-Fard's absence and without proper notice]) or otherwise articulated a cogent legal argument supporting his claim that he should not be required to show prejudice (see United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 [to demonstrate error, appellant must supply reviewing court with cogent argument supported by legal analysis and citation to the record]). In this context, Callahan has not demonstrated that any procedural error was prejudicial or otherwise requires reversal.
Callahan argues that reversal is required because the County did not supply substantial evidence to support each of its requests for relief-whether on an ex parte application or noticed motion. We treat the sufficiency of the evidence separately, below.
C. Substantive Sufficiency of the County's Evidence
On the merits, Callahan contends that the trial court also erred in that the County's showing was insufficient to (1) demonstrate the necessity for super-priority liens; and (2) justify an injunction removing Callahan from his home where there were no code violations or emergency specific to the dwelling. We view the record differently.
1. Super-Priority Liens
The trial court authorized the receiver to "borrow funds as necessary to pay for the rehabilitation" and provided that those borrowed funds were "entitled to become superpriority liens against" the property. Callahan does not dispute that, as a general principle, a receiver may be authorized to secure funding by way of super-priority liens. Rather, Callahan contends that Curtis Wright's declaration, submitted in his role as a founding partner of the County's proposed receiver, was insufficient to support the authorization of super-priority liens in this case because Wright had never visited the property, did not specify what financial sources were available to fund rehabilitation work, did not specify what the rehabilitation would consist of or estimate the cost of rehabilitation, and did not compare the unspecified rehabilitation costs to the value of the property. We reject this contention.
Callahan also argues that the trial court improperly gave the receiver free rein to borrow against his property, whereas the trial court should have allowed him to make arguments regarding the need for super-priority liens as a funding mechanism-as opposed to other forms of financing-and the amount of money that needed to be borrowed. These arguments pertain more directly to Callahan's contention that the ex parte process adopted by the trial court was improper, addressed above. In any event, we note that the trial court's order only authorized the receiver to borrow "as necessary" for specified purposes-the order does not grant the receiver unfettered discretion to take out super-priority liens.
As described in the declaration, Wright familiarized himself with the property by reviewing "photographs, court filings, preliminary title research, and information regarding the [property's] history of violations of law and nuisance activity." Based on those records, Wright opined that "a receivership is financially feasible" for the property. Nevertheless, Wright declared that funding would need to be secured against the property "with super-priority 'Court Receiver Certificates" or the receiver would "be highly unlikely to be able to obtain the necessary funding to rehabilitate the" property.
"Courts . . . have substantial discretion to authorize a receiver to borrow money to fund the preservation and management of property in the receivership estate, particularly where . . . the estate does not produce income. In that circumstance, the receiver may ask the court to authorize the issuance of a receiver's certificate to the lender as security for money loaned to the estate. Typically, such a receivership certificate will have priority over all other liens-even preexisting liens. [Citation.] This too is a matter committed to the sound discretion of the court. [Citations.] . . . [U]se of super-priority liens should be infrequent because the disturbance of preexisting liens may bring harsh consequences." (SunTrust, supra, 32 Cal.App.5th at pp. 657-658; see also Quail, supra, 56 Cal.App.5th at p. 675.)
The record before the trial court indicated that work needed to be done to abate the nuisances existing on the Callahan property, Callahan-having failed to abate the nuisances himself-was unwilling or unable to fund the work, and the property-at least in its existing state-was incapable of generating rents or profits to fund the work. (See, generally, SunTrust, supra, 32 Cal.App.5th at p. 660 [noting that alternatives to superpriority liens may include junior liens, the rents and profits generated by the property, payment by the property owner, and the appointment as receiver of a nonprofit organization eligible to apply for grant funding to assist in the rehabilitation].) Given Wright's declaration that lenders were highly unlikely to provide funding without the use of super-priority liens, the trial court's discretionary determination that such liens were appropriate is supported by substantial evidence.
2. The Dwelling
a. Substandard Building
Callahan contends that because section 17980.7, subdivision (c)(3) refers to the appointment of "a receiver . . . for the substandard building," the court's power and the receiver's power is limited to the substandard building(s). In Callahan's view, this power does not extend to his dwelling on the property, because the County did not show violations specific to that building. We reject Callahan's narrow construction of the term "substandard building" and conclude that there is substantial evidence to support the determination that his dwelling was a substandard building.
We do not reach the County's contention that there is substantial record evidence of nuisance conditions specific to Callahan's dwelling. To the extent necessary, the record permitted the trial court to treat the dwelling itself as a substandard building even without nuisance conditions specifically emanating from the dwelling.
Section 17920.3 begins, "Any building or portion thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the same is located, in which there exists any of the following listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building[.]" (Italics added.) "Any nuisance" is among the "listed conditions." (§ 17920.3, subd. (c); see also SunTrust, supra, 32 Cal.App.5th at p. 658, fn. 2; Gonzalez, supra, 43 Cal.4th at pp. 914-915 [explaining that the city filed a section 17980.7, subdivision (c)(3) petition alleging, among other serious code violations that presented a substantial threat to the health and safety of the residents of the nearby community, that the property was an attractive nuisance under section 17920.3, subd. (c)].)
Consistent with this broad definition of substandard building, section 17980, subdivision (a) provides, "If a building is constructed, altered, converted, or maintained in violation of" specified provisions, orders, or notices "or if a nuisance exists in a building or upon the lot on which it is situated, the enforcement agency shall, after 30 days' notice to abate the nuisance or violation, or a notice to abate with a shorter period of time if deemed necessary by the enforcement agency to prevent or remedy an immediate threat to the health and safety of the public of occupants of the structure, institute appropriate action or proceedings to prevent, restrain, correct, or abate the violation or nuisance."
Pursuant to the statutory definition of "substandard building," nuisance conditions on the premises where Callahan's dwelling was located were sufficient to render the dwelling a substandard building. There is substantial evidence in the record that there were such nuisance conditions on the premises. The trial court did not abuse its discretion by treating the dwelling as within the proper scope of its order.
Callahan argues that his property consists of multiple parcels and, in the earlier preliminary injunction proceedings, the County effectively conceded that his dwelling is permitted by seeking and obtaining a proposed order that allowed him to continue to reside in the" 'permitted single-family dwelling.'" First, the record below, including the trial court's order, consistently refers to a single parcel number in issue-Assessor's Parcel Number 098-271-30. In asserting that his property consists of four parcels, Callahan cites only his declaration submitted to the trial court in response to the County's 2019 application for a temporary restraining order. That declaration does not provide any parcel numbers, or state which structures are on which parcel. To the extent Callahan suggests that his residence was not on Assessor's Parcel Number 098-271-30, we reject the suggestion. There is nothing in the record contradicting the trial court's determination that the specified parcel contained both the nuisance conditions and Callahan's residence. Indeed, if Callahan's residence was not on that parcel the trial court's order would not, by its terms, have required Callahan to vacate. Second, any concession in the 2019 preliminary injunction proceedings that Callahan's dwelling was permitted is immaterial to the issues raised by the 2022 receivership application.
b. Order to Vacate
Even if his dwelling was within the proper scope of the trial court's authority, Callahan argues that there was no basis for an order requiring him to vacate the dwelling-Callahan could have remained in the dwelling even as the receiver began rehabilitation. To the contrary, we conclude that the nuisance conditions on the property provide substantial evidence to support the trial court's determination that Callahan needed to vacate the property in conjunction with the appointment of a receiver.
Preliminarily, we acknowledge that although the mandatory injunction compelling Callahan to vacate the property appeared in the County's proposed order, that mandatory injunction was not mentioned in the ex parte application or the supporting memorandum. As such, the County's reason for seeking such an injunction in conjunction with its ex parte receivership application is not expressly set forth in the appellate record. Moreover, once the order issued, neither the County nor the receiver evinced any sense of urgency: it was not until a year later that the receiver took action to enforce the order to vacate, prompting Callahan to petition this court for a writ of supersedeas. Nevertheless, we are obliged to make all presumptions in favor of the trial court's action. (Foust, supra, 198 Cal.App.4th at p. 187.) Accordingly, we must affirm if the evidence supports the injunction to vacate, on any rationale.
Viewing the trial court's order in the context of the record presented, there was substantial evidence in the record supporting the trial court's determination that Callahan should be required to vacate his home.
First, the same dangerous conditions on Callahan's property that support the receivership also support the reasonable inference that Callahan needed to be removed from the property to protect his own safety. Second, on the same line of reasoning, the court could infer that Callahan's removal would protect first responders who might otherwise be required to assist him. Third, there was evidence from which the trial court could reasonably infer that Callahan had a history of interfering with rehabilitation efforts. For example, in May 2018 a contractor boarded up unpermitted structures on Callahan's property. By February 2019, the boards had been breached and it appeared people were living in the structures. In his appellate briefing, citing a declaration filed in 2019 in connection with the preliminary injunction proceedings, Callahan attributes the breach to squatters "who swooped in and took over the land." But the trial court could reasonably have declined to credit this declaration and inferred that Callahan had a history of interfering or facilitating interference with remediation efforts to address the risks posed by his property. Thus, the trial court could reasonably have inferred that Callahan needed to be removed from the property to ensure that rehabilitation efforts could proceed unimpeded, for protection of the public at large.
III. DISPOSITION
The ex parte "order appointing receiver" filed on February 17, 2022 is affirmed. In the interests of justice, the parties shall bear their own costs on appeal. (Rule 8.278(a)(5).)
WE CONCUR: GROVER, ACTING P.J., BROMBERG, J.