Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Super. Ct. No. BD206726 Gail R. Feuer, Judge.
Tepper Law Firm and Nicholas Tepper for Defendant and Appellant.
Saltzburg, Ray & Bergman and Paul T. Dye for Plaintiff and Respondent.
ARMSTRONG, J.
Josh Michaely appeals from a trial court order granting respondent Patti Michaely's post-judgment motion seeking appointment of a receiver. We affirm.
Facts
As we wrote in our earlier opinion in this case, this dissolution case has an extraordinarily long history. The petition was filed in January 1995, after the parties had been married for 24 years. The judgment of dissolution was in August of 1998, but the judgment on financial issues was not entered until August of 2005.
That judgment was a judgment in respondent's favor in the amount of $21 million, plus interest, plus support of $35,360 per month, plus attorney fees. In entering that judgment, the trial court found that appellant had breached his fiduciary duty to respondent while he had control of community assets, had willfully and maliciously engaged in acts to deprive her of her share of the community estate, and had perpetrated fraud on her. Further, in discovery, appellant "engaged in intentional, pervasive, and egregious evasiveness, was willfully untruthful, and gave inconsistent and contradictory testimony. His conduct at the deposition was the equivalent of refusing to sit for the deposition, in violation of court order. [He] failed to produce documents in response to the request for production, did not produce documents he claimed to have produced, claimed that he could not identify documents which he did produce, and intentionally produced voluminous documentation which was not responsive. He had in the past failed to comply with other discovery. His intentionally evasive and obstreperous conduct deprived [respondent] of meaningful discovery."
We affirmed the judgment. On remand, respondent made efforts to collect on her judgment, all of them unsuccessful. Her first motion for the appointment of a receiver, made in November of 2006, was denied. Her second motion, made in November of 2007, was granted. The trial court found that respondent "has undertaken numerous steps, all unsuccessful, to try to collect on her Judgment in this case," that appellant's assets "are not reachable by ordinary collection means such as turnover orders and writs of execution," that appointment of a receiver "is a reasonable method to obtain the fair and orderly satisfaction of the Judgment," and that a receiver was necessary to "(a) assume all of [appellant's] property rights, leaving him with no legal right to transfer any property, and (b) move quickly to seize assets in which [appellant] has an interest and to liquidate them under Court supervision."
Discussion
Under Family Code section 290, "A judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary." This statute gives courts broad discretion to fashion orders enforcing Family Code judgments. (Cal-Western Reconveyance Corp. v. Reed (2007) 152 Cal.App.4th 1308, 1318.) Our review is thus for abuse of discretion. (Alderson v. Alderson (1986) 180 Cal.App.3d 450, 467.) We find none.
1. Evidence in support of the application
Respondent's application for appointment of a receiver was supported by over 600 pages of documents, including transcripts of appellant's judgment debtor examination; appellant's responses to discovery in the judgment debtor proceedings; pleadings in this matter evidencing respondent's earlier efforts to collect on her judgment; evidence obtained by respondent's counsel from the California and Nevada Secretaries of State and from the Clark County Assessor’s Office in Nevada, relevant to appellant's assets in those states; and transcripts of depositions and other examinations under oath in other litigation which involved appellant, his assets, his attempts to conceal his ownership of various assets, and his determination to deprive his former wife of any money. All of this was authenticated by the declaration of respondent's counsel.
Appellant contends that the declaration is not based on counsel's personal knowledge and is nothing but hearsay, that each of the many objections he made in the trial court was sound and should have been granted, that respondent presented no competent evidence in support of her application and thus that the trial court abused its discretion when it granted her motion.
The perfunctory assertion that the declaration is not based on counsel's personal knowledge is insufficient to raise the ground on appeal, as is the perfunctory reference to objections made and denied in the trial court. "A point which is merely suggested by appellant's counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion." (In re Steiner (1955) 134 Cal.App.2d 391, 399; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199.) We have, moreover, examined the declaration, and find that the matters presented to the trial court were properly authenticated.
Nor are we persuaded by appellant's citation to McCaslin v. Kenney (1950) 100 Cal.App.2d 87. In that case, the plaintiff and defendant shared an interest in oil wells, and the defendant's motion for appointment of a receiver was supported, in part, by an affidavit to the effect that the plaintiff had mismanaged those wells, describing a specific incident. The affidavit nowhere stated that defendant was present during the incident, and the many affidavits submitted by the plaintiff established that the defendant's description of the incident was incorrect. The holding of the case, unsurprisingly, is that "[u]nder such circumstances, the statements in the affidavits are not competent evidence of the alleged negligence, and the affidavits are insufficient to prove negligence." (Id. at p. 94.)
Here, in contrast, respondent presented ample facts, uncontradicted by appellant.
2. Failure to describe the exact property affected
The receiver was appointed receiver over appellant's assets. The order provides that the receiver "shall take possession of appellant's business premises, and books and records," and that the receiver's powers extended to appellant's funds, properties, and assets, whether owned directly or indirectly. It also provides that "No specific receivership property has yet been identified. In another pending action, [respondent] has alleged that [appellant] has fraudulently transferred and has a beneficial ownership interest in numerous businesses and properties ("Disputed Properties"), which are identified below. The Receiver is directed to, and has authority to conduct an investigation for the existence and location of the assets of [appellant], including but not limited to the Disputed Properties and Debtor Business. Where the Receiver identifies assets which the Receiver believes are owned in whole or in part by [appellant], but which are not in [appellant's] name, or which have been fraudulently transferred by [appellant], the Receiver shall apply to this court for further orders...." There is a long list (a to fff) of disputed properties.
Appellant contends that order does not sufficiently identify the property and that failure to describe the exact property affected is sufficient grounds for reversal of the order appointing the receiver. He is incorrect. An order appointing a receiver of "all assets" of the judgment debtor is sufficient. (People v. Cole Check Service, Inc. (1959) 175 Cal.App.2d 777, 780.)
3. The civil action
Finally, appellant makes several arguments based on the fact that respondent has filed a civil suit against him (and many others) for fraud, breach of fiduciary duty, and so on, with factual allegations concerning appellant's conduct prior to the dissolution of the parties' marriage and his efforts to hide his assets.
In her brief, respondent informs us that the civil case has been stayed.
Appellant's argument is that the receivership was an equitable remedy to which respondent was not entitled unless she could show irreparable injury and the inadequacy of other remedies, and that the pending civil action meant that she could not make that showing.
We are unpersuaded. The appointment of a receiver is not always an equitable remedy. This receivership was authorized by statute, to aid in the execution of a judgment.
"Unlike receivers generally whose true origin is in equity (see 42 Cal.Jur.2d, Receivers, § 3; 65 Am.Jur.2d, Receivers, § 1), receivers in aid of execution are considered creatures of statute. Their nature is pointed up from a wide collection of authority, q.v., by Corpus Juris Secundum, Volume 33, in its article on Executions, section 385, as follows: 'A receivership in proceedings supplementary to execution is a creation of statute and not a remedy in equity. The receiver is not, except in a technical sense, an officer or instrumentality of the court, but represents and is an agent of the judgment debtor, the judgment creditor at whose instance he was appointed, and such other judgment debtors [sic] as may have caused the receivership to be extended to their claims.'' (Morand v. Superior Court (1974) 38 Cal.App.3d 347, 349-350.)
Even if this appointment were founded in equity, the threat of irreparable injury hangs heavy over this case. Appellant has demonstrated his ability to hide and disguise assets, and his acumen at forming corporations quickly and constructing straw people creates a very real risk of the disappearance of assets rightly due respondent. Respondent has only requested the appointment of a receiver because other remedies have proven inadequate in the face of appellant's financial machinations.
Appellant also contends that appointment of a receiver was an abuse of discretion because it was not a "reasonable method to obtain the fair and orderly satisfaction of the judgment" (Code Civ. Proc., § 708.620), and that the receivership, if any, should have been in the civil suit. To the extent that Code of Civil Procedure section 708.620 is applicable, it does not establish an abuse of discretion.
The civil suit was filed in March 2007, long after this case was filed, and while respondent's attempts to collect her judgment in the family court were underway. Appellant's argument is akin to a request for abatement in this proceeding, but "[t]he applicable rule... is that the pendency of another action growing out of the same transaction is ground for the abatement of the second action but never for the abatement of the first action." (Kirman v. Borzage (1949) 89 Cal.App.2d 898, 903.) Nothing in the record indicates that appellant moved to abate the civil case, and he cannot now attempt to abate this one, through his argument under Code of Civil Procedure section 708.620.
Disposition
The order appointing a receiver is affirmed. Respondent to recover costs on appeal.
We concur: TURNER, P. J. KRIEGLER, J.