Filed 8/25/20 County of Mariposa v. JDC Land Co. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

COUNTY OF MARIPOSA,

Plaintiff and Respondent,

v.

JDC LAND COMPANY, LLC et al.,

Defendants and Appellants.

F076310

(Super. Ct. No. 10887)

OPINION
APPEAL from a judgment of the Superior Court of Mariposa County. F. Dana Walton, Judge.

Law Offices of Randolf Krbechek and Randolf Krbechek; Imran A. Khaliq; Law Offices of Marc E. Angelucci and Marc E. Angelucci for Defendants and Appellants.

Steven W. Dahlem, Deputy County Counsel; Silver & Wright, Matthew R. Silver, John M. Fujii and Jessica McKennon for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In March 2017, the County of Mariposa (the county) filed suit for nuisance abatement as to Property owned by JDC Land Company, LLC (defendant) and managed by Jerry Cox, and sought the appointment of a receiver pursuant to Health and Safety Code section 17980 et seq. In June 2017, the county filed a motion to appoint a receiver under section 17980.7, which defendant opposed. A hearing on the county’s motion was held on July 17, 2017, the motion was granted, and a receiver was appointed over the Property. Defendant appealed the order appointing the receiver but did not obtain a bond or an undertaking on appeal. As a result, the litigation proceeded while this appeal was pending. The Property was ultimately sold in November 2019 pursuant to an order of the trial court, but the final distribution order settling all accounts and discharging the receiver has not yet occurred. Upon review of the appointment of a receiver, we do not find any abuse of discretion by the trial court; the trial court’s July 2017 order appointing a receiver is affirmed.

FACTUAL BACKGROUND

I. The County Files Complaint Seeking Abatement and Receivership

In March 2017, the county filed a complaint alleging defendant’s Property had “been the focus of the County’s code enforcement efforts for over eight years, since at least 2008.” The county had received complaints about unlawful activity on the Property and had repeatedly conducted inspections in June 2008. During those inspections, the county discovered the Property was being used for commercial purposes in violation of applicable zoning regulations, and for unauthorized transient rental. The county issued a notice of violation to defendant.

In August 2008, the Mariposa County Building Department investigated the Property, conducting two inspections where officials discovered “additional code violations including unpermitted use of a storage building and construction not in compliance with building code specifications.” The county issued notices to defendant after both inspections. Between October 2011 and February 2012, there were five inspections of the Property conducted where further violations were documented. On October 14, 2016, the county conducted an inspection of the Property and identified over 100 dangerous violations of state and the county’s law.

Based on these violations, on December 2, 2016, the county issued a notice and order to repair or abate to defendant ordering all repair and abatement of violations occur by January 2, 2017.

The alleged violations were grouped by the building structures on the Property, and are discussed below. As to the office/residential unit, the floor of the unit was damaged and was at risk of partial or total collapse; the outside stairway steps were inadequately supported; the interior stairway to the loft was improperly built and did not provide adequate egress from the loft in the case of fire or emergency; there was exposed electrical wiring throughout the structure, which created a risk of shock and/or fire; the plumbing and septic systems were unauthorized and unsafe; plumbing fixtures were installed without permits and were substandard; there was no automatic fire suppression system necessary for transient/vacation rentals, no smoke or carbon monoxide detectors; and there was substantial junk around the structure that caused several issues related to fire, safe egress/ingress, contamination from hazardous chemicals, and a sanitation hazard as related to insects and rodents.

The upper residential unit had substandard patio flooring that was uneven; the roof supports had split due to defective wood, which sacrificed the structural integrity of the roof and created a risk of collapse; the upstairs loft had been converted to a sleeping unit without a permit, which meant it could pose a risk of severe latent defects; the septic system was inadequate and unauthorized; it lacked fire suppression necessary for use as a vacation rental, smoke and carbon monoxide detectors were missing; there was no fire extinguisher in the kitchen of the unit; and there was an accumulation of junk.

The barn structure was not properly permitted and, thus, could pose a risk of latent defects; the doors of the structure bowed and could dislodge and collapse; an unpermitted greenhouse had been constructed and built with PVC piping that posed a risk of collapse; and there was an accumulation of junk in and around the structure.

The deck structure built across from the barn was not permitted; a toilet and sink had been installed at the picnic area without permits; the sewage from the toilet and sink was a sanitation hazard and because proper permits had not been obtained, it was impossible to verify the nature of the sewage disposal methods; and electrical wiring and lighting had been installed near the bathroom sink and toilet without permits and thus posed a risk of shock and/or fire.

A lower storage building that was being used for residential purposes was unlawfully converted to a vacation rental; the sleeping units and bathrooms had been constructed without permits, which could pose the risk of structural defects; the deck of the lower storage/residential building was supported by jack posts resting on individual logs that were insufficient to safely hold the weight of the deck, the jacks were rusted and bowed at unsafe angles and caused the patio floor and supports to bend and sag; the flooring throughout the unit was uneven; the ceiling and roof supports were insufficient to safely carry imposed loads, and the metal plates joining roof supports were buckling, bolts were jutting out, and jacks were haphazardly placed to support cross beams; the exterior deck stairway was uneven and unstable and posed a risk of collapse; the interior stairway was unstable and prevented mobility within the structure, posing egress issues in the case of emergency; the structure lacked an approved drinking water supply; there was lack of a fire suppression system necessary for vacation rental purposes; there was a lack of smoke detectors and carbon monoxide detectors; no fire extinguisher in the kitchen area; flooring around the shower unit was improperly finished to prevent water damage, and there were signs of decay and mold; plumbing installations inside and outside the structure were exposed and damaged; car batteries had been improperly installed in the downstairs bedroom as a primary source of electricity, which carried a risk of shock/fire as well as the release of toxic chemicals.

The pole barn structure, which had also been used for residential purposes, had been constructed without building permits, and there were defects apparent—the building was unstable and risked partial or total collapse; it had been used for human occupancy, but it was entirely unfit for human occupancy; the roof was severely rusted and sagging; the walls were built from wood that had extensive rot and decay, which undermined the structural integrity of the load-bearing walls; although used for residential purposes, it had no plumbing or sewage of any kind; substantial amounts of junk had accumulated; there were no adequate kitchen or bathroom facilities; there was exposed electrical wiring; the exterior walls were ineffectively waterproofed and had gaping holes; access and egress from the upper floor of the structure was severely limited and required crawling through a crawlspace and then leaping across a sporadic wooden walkway; and the structure had been built without plans submitted or approved by the county.

The gazebo structure had not been permitted nor had any plans been submitted and approved by the county; the wood flooring was uneven and dilapidated; and the wooden roof contained large holes and was extremely dilapidated.

There were also a host of additional code violations listed, including an unauthorized RV campsite near the barn structure; an RV deck had been constructed without permits so it could contain severe latent defects; a water storage tank and supporting deck structure had been constructed and installed without valid permits; mining was being conducted near the upper residential unit, which was not permitted; there were various violations relating to improper agritourism uses of the Property such as inadequate sewage disposal and water; there was a lack of proper transient and vacation rental registration certificates; occupancy limits were not posted properly nor was contact information for the property owner posted; and there were various violations related to failure to obtain transient occupancy certificates, failure to collect transient occupancy tax, failure to report and remit taxes owed on the transient/vacation rental occupancy; and violations of the Williamson Act (Gov. Code, § 51200 et seq.; Williamson Act).

The notice and order required defendant to cease and vacate, within seven days, all occupancy not in compliance with the Williamson Act, including all transient and rental occupancy, and any residential occupancy was to be limited to the first floor of the upper residential unit. Defendant was given 30 days to abate all other unlawful conditions on the Property. Repair and abatement that required permits were to be obtained within the 30-day abatement period.

Defendant allegedly failed to comply with the December 2016 notice and order, and the county filed suit in March 2017 seeking nuisance abatement and receivership. The county alleged six claims for relief: violations of the “State Housing Law” (Health & Saf. Code, § 17910 et seq.); public nuisance (Civ. Code, §§ 3479, 3480, 3491); public nuisance per se (Mariposa County Code, § 17.144.050); transient occupancy tax violations (Mariposa County Code, § 3.36 et seq.); breach of contract; and the “Unfair Competition Law” (Bus. & Prof. Code, § 17203; UCL). The complaint asserted a right to the appointment of a provisional receiver under section 17980.7, in addition to the permanent relief sought by the complaint.

II. The County Seeks Appointment of a Receiver

In June 2017, approximately seven months after the December 2016 notice and order, the county filed a motion to appoint a receiver, which the trial court granted on July 17, 2017.

A. Evidence in Support of the Motion

The county’s Planning Director, Sarah Williams, attested she has extensive experience and training identifying dangerous and unlawful land uses, and her job requires her to enforce the Mariposa County Code and recorded Williamson Act contracts. Williams identified conditions on the Property that constituted code violations, detailed the number of inspections that had taken place by various county departments at the Property, and the violation notices issued to defendant regarding the Property. Williams indicated that inspection of the Property on October 14, 2016, revealed 101 violations, and that the county had issued a notice and order to repair in December 2016. Williams noted the online internet webpage for Bison Creek Ranch, which was operated on the Property, was currently and actively marketed for rental occupancy, agritourism, and other commercial purposes that were unlawful.

In addition to documenting the types and nature of various violations of law relating to the Property, Williams stated the property manager of the Property (Cox) “ha[d] exhibited extremely erratic, volatile, and threatening behavior when interacting with County staff members, neighboring property owners, and his agritourism guests in the past.” It was indicated the property manager had been arrested on criminal charges in November 2015, and attached a news article describing the arrest and charges against the property manager.

The county’s Building Director, Michael Kinslow, also submitted a declaration detailing his inspections of the Property and the alleged violations he discovered during those inspections. His declaration also included a paragraph noting past behavior of the property manager, and attached to his declaration was a news article describing the arrest and charges against defendant’s property manager in November 2015.

The Senior Supervising Registered Environmental Health Specialist for the county, Brian Hodge, submitted a declaration in support of the motion. He had been licensed by the state as a registered environmental health specialist since 1989, and he had conducted numerous property inspections for health and safety violations. He detailed his personal involvement with the county’s enforcement efforts at the Property, and stated the violations he found upon inspection in October 2016. He opined the violations he observed posed a substantial danger to the health and safety of occupants, neighboring residents, and the public.

The county’s Deputy Fire Chief, Curtis Jackson, submitted a declaration indicating his personal involvement with the Property and detailed his inspection on October 14, 2016. He listed what he considered to be dangerous fire hazards and violations of the California Fire Code and the Mariposa County Code. This included the accumulation of unsecured gas cans, exposed electrical wiring, car batteries, and assorted piles of clothing; car batteries had been improperly installed in a downstairs bedroom as a primary source of electricity; substandard stairways and accumulation of trash and debris inhibited egress in the event of a fire; office/residential unit lacked a fire suppression system; required smoke detectors were missing; upper residential unit lacked a fire extinguisher; electrical wiring and lighting had been installed without necessary permits; interior of the barn had exposed electrical wiring; inadequate means of egress on the upper floor of a structure; upper residential unit and the lower storage building/residential unit had not been inspected by the county’s Building Department or the Fire Department for safety; a bridge on the property was inadequate to hold a sufficient load for firefighting vehicles; the Property lacked adequate water supply and flow for fire suppression needs; and the dirt roads leading to storage building/residential unit and pole barn are inaccessible to most vehicles, including EMS vehicles. In the Deputy Fire Chief’s opinion, the conditions observed on the Property constituted severe and dangerous fire hazards in violation of the county’s codes and the state fire codes.

The county also offered the declaration and curriculum vitae of Mark Adams as a receiver qualified to accept court appointment. The motion was further supported with photographs of the Property taken on October 14, 2016, and copies of prior investigation reports and noted violations between 2008 and 2013.

B. Defendant’s Opposition

In his opposition, defendant argued the motion could not proceed without a trial because the appointment of a receiver required an underlying judgment, and that the declarations in support of the motion constituted hearsay. According to defendant, the requested relief to appoint a receiver was a drastic remedy, and a trial was required for the court to determine the appropriateness of the relief sought by the county. Defendant also objected to the county’s reference to criminal charges against the property manager, argued those references were inadmissible, and asserted it constituted an improper attempt to prejudice the court. Beyond that, defendant maintained that evidence had been suppressed by the prosecution in the criminal case, and the charges were unsubstantiated.

As to the substantive violations alleged by the county, defendant argued many of the violations were “subtly-nuanced variations of a single concept.” For example, five different violations were cited for one accumulation of junk and debris. Defendant also argued some of the violations listed by the county were transitory and had been corrected: for example, when the county inspected the Property in October 2016, it found food items left in a small refrigerator by friends of defendant who had stayed at the Property to look after it—they were not customers or clients. Those items were cleaned up, and the violations relating to that leftover food was remedied. Moreover, the deck and the gazebo had been removed, and a demolition permit had been obtained to remove the pole barn.

Defendant argued the county had ignored previously issued permits, as well as the Property’s zoning conversion from a mountain preserve to agricultural exempt. As to transient rental use, defendant argued a local ordinance expressly allows for overnight transient occupancy use under an agricultural homestead exception. Defendant noted a professional engineer had been retained to assist in obtaining approval for the Property to be used as a transient rental. Thus, defendant argued, most of the structural violations had been eliminated since the notice and order had been issued, and the transient occupancy use associated with the Property could be remedied through completing an application for such use with the assistance of an engineer.

In support of the motion, defendant filed a declaration of Jerry Cox, defendant’s managing member, responding to each of the 101 alleged violations. Cox stated some of the structures identified by the county were not residential, and some of the violations had been “fixed” since the inspection in October 2016. He indicated he had installed smoke and carbon monoxide detectors, he argued some of the buildings were lawfully constructed at the time they were built, and he disputed some allegations of dilapidation and wear. Cox indicated he had removed one of the deck structures and the gazebo, and he planned to demolish the pole barn. Attached to his declaration were photographs of the Property, copies of a building permit application for the barn structure, and a permit application for demolition of the pole barn.

On July 7, 2017, defendant filed a supplemental opposition, which included a copy of a notice of defensible space inspection dated June 7, 2017, by the California Department of Forestry and Fire Protection indicating no violations. Defendant argued this contradicted the county’s allegations of fire danger based on the October 2016 inspection.

C. The County’s Reply

The county filed a reply brief arguing that a receiver could be appointed under section 17980.7 without a trial or evidentiary hearing. The county argued it had submitted unrefuted evidence that the Property contained severe and extensive unlawful conditions that posed a substantial danger to occupants and the public. The county noted that Cox’s declaration failed to dispute that the condition of the Property constituted a substantial danger and asserted it had not overstated the number of violations or the severity of the substandard conditions.

The county also argued a receivership under section 17980.7 is not a remedy of last resort, such as rents-and-profits receiverships where consideration of less drastic remedies was required. The county compared this receivership to the one approved by the court in City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458 (Reddy), where the court held section 17980.7 did not require a court to consider less drastic alternatives before appointing a receiver. The county also argued no permit has ever been authorized for demolition of defendant’s pole barn—Cox had submitted an application for demolition in June 2017, but it was rejected as incomplete and not filed in compliance with requirements. A second permit application to approve the barn structure as is was also filed, but this too had been rejected as incomplete. The other permits referenced in Cox’s declaration had been issued from 1989 to 2007 and were unrelated to the current violations identified by the county. As to defendant’s supplemental opposition, the county argued the “‘Notice of Defensible Space Inspection’” was unsigned, unauthenticated, lacked foundation, and was completely inadmissible. Moreover, that document only related to vegetation on one of the three parcels of the Property, and no vegetation violations were cited by the county in its December 2016 notice and order.

The county submitted a supplemental declaration of its Building Director, Kinslow, who stated Cox had repeatedly obstructed the county’s efforts to abate violations on the Property, and he had refused to comply with the law. Williams attested Cox had repeatedly misrepresented to the county the conditions on the Property. Further, Kinslow noted that defendant had a history of noncompliance with the county’s orders to abate nuisances, and Kinslow identified a stipulated judgment between the county and defendant as to another property wherein defendant was ordered to obtain all necessary permits to correct violations on that property, but he had failed to do so. Kinslow also indicated the county had not issued permits for the subject Property as claimed in Cox’s declaration; rather, Cox had submitted an incomplete application for demotion of the pole barn, and an incomplete application to approve the barn structure as built. Both permit requests were denied as incomplete.

D. Hearing on the Motion in July 2017

At the hearing, defendant’s counsel argued he had no time to obtain expert opinions regarding the Property; the motion was noticed for hearing 18 days after it was filed. Counsel indicated defendant’s engineer expert, Fred Bonar (Bonar), was present in court and available to opine on various issues. Counsel asserted most of the violations alleged by the county were capable of being brought into compliance, and many already had been remedied. Counsel argued the photographs supporting the motion were pictures taken the previous October and were over six months old. The appointment of a receiver, argued counsel, would be improper and overbroad because there was no current evidence of what violations remained at the time of the hearing. Counsel suggested the court set a trial to be conducted after some discovery had been taken, and asserted this would provide defendant an opportunity to present witnesses and allow the court more complete and current information about whether a receiver was an appropriate and necessary remedy.

The county’s counsel argued there was no competent evidence from a qualified expert the violations had been remedied and that Cox, although defendant’s managing member, was not an expert who could offer any conclusions about various violations on the Property. Moreover, counsel noted, the Property was still, as late as May 2017, being advertised for transient occupancy rental.

The court indicated it had not considered, “in any way[,] shape or form, the other [criminal] case that Mr. Cox is involved in, in this court.” The court determined it was not going to set a trial on the motion, and found the violations were clear, as indicated by the county’s experts, and defendant had failed to remedy them. The court also noted that regardless when the county had started to seek compliance of substandard building violations, the county had served notice and an order in December 2016, and defendant had not substantially complied “some seven months later. The seven months alone in this Court’s opinion is sufficient [to warrant appointment of a receiver.]” The court granted the motion for appointment of a receiver, and appointed Mark S. Adams as requested by county. The court issued a written order on July 17, 2017, granting the motion, appointing a receiver, and setting forth the receiver’s powers, obligations, and duties with respect to the Property.

Defendant appealed from the July 17, 2017, order; we consider defendant’s contentions of error below.

DISCUSSION

I. Judicial Notice

Defendant submitted two separate requests for judicial notice of four documents. The first request seeks judicial notice of an order of the United States District Court for the Eastern District of California denying an anti-SLAPP (a special motion to strike a strategic lawsuit against public participation) motion regarding the pleadings in a civil case defendant has filed against the county and others for events related to the Property. The portion of the order highlighted by defendant includes the district court’s commentary on the facts as alleged in the pleadings and in the record before it; we cannot judicially notice the truth of another court’s factual findings or its view of the record, nor may we take judicial notice of disputed or disputable facts in that order. Moreover, the order’s existence and its result are not relevant to any of the issues in this appeal. Thus, we decline to take judicial notice of it. (Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764, 770 [declining to take judicial notice of a city board’s resolution as irrelevant to the issues on appeal, and even if relevant, only the existence of the record could be noticed, not the truth of its contents] (Hill).)

The second request seeks judicial notice of three documents: (1) February 21, 2012, Mariposa County Board of Supervisors’ meeting minutes; (2) March 6, 2012, Mariposa County Board of Supervisors’ meeting minutes; and (3) Mariposa County Code section 17.40.010 regarding agricultural exclusive zoning. These documents were not, apparently, presented to the trial court, and we decline to consider them for the first time on appeal. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325–326 [appellate court may properly decline to take judicial notice of a matter that should have been presented to the trial court for its consideration in the first instance].)

The county also filed a request for judicial notice of Mariposa County’s August 14, 2017, request for dismissal of the criminal charges against Cox. The county asserts this is relevant to defendant’s statement in his opening brief that the receivership proceedings were initiated as an act of animus after the criminal charges were dismissed.

The parties’ dispute about the county’s motivation in seeking the appointment of a receiver is not relevant to the argument defendant actually asserts: that the trial court’s consideration of the motion to appoint a receiver was contaminated by evidence of the criminal charges against Cox. The date criminal charges were dismissed is irrelevant to whether information about the criminal charges contained in the county’s supporting documents improperly influenced or biased the trial court. We decline to take judicial notice of this document. (Hill, supra, 198 Cal.App.4th at p. 770.)

II. No Abuse of Discretion in Appointing Receiver

A. Standard of Review

The court appointed a receiver in this case pursuant to section 17980.7, subdivision (c), which authorizes the appointment of a receiver if a building owner fails to correct conditions in a substandard building following notice and a reasonable time for compliance. An order appointing a receiver is reviewed on appeal for an abuse of discretion. (Goes v. Perry (1941) 18 Cal.2d 373, 381; Reddy, supra, 9 Cal.App.5th at p. 466.) A trial court abuses its discretion when it applies the wrong legal standard or its factual findings are not supported by substantial evidence. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) Under this standard, the trial court’s factual findings, even when based on conflicting evidence concerning the need for a receivership, are binding on the reviewing court even if the reviewing court may have reached a contrary conclusion on those issues of fact. (Baldwin v. Baldwin (1944) 67 Cal.App.2d 175, 177–178.)

B. Analysis

As an initial matter, defendant does not argue the trial court’s findings of substandard property violations are unsupported by substantial evidence. Had that argument been made, it would not have been persuasive. Even assuming all factual disputes relevant to permits were resolved in defendant’s favor, and that violations such as trash accumulation and missing smoke and carbon monoxide detectors had been remedied, there remained substantial evidence of substandard building violations sufficient to support the trial court’s appointment of a receiver. Expert opinions about the compromised structural integrity of buildings and the resulting risk of collapse were uncontroverted.

For example, as opined by the county’s building director, the office/residential unit had damaged supports that caused the floor to sag and created a risk of partial or total collapse; the roof supports of the upper residential unit had split, which sacrificed the structural integrity of the roof and created a risk of collapse; the deck of the lower storage building/residential unit was supported by jack posts, which were insufficient to support the weight of the deck, creating unsafe walkways and the risk of collapse; the walls of the lower storage building/residential unit were made of wood that suffered extensive rot and decay, undermining the structural integrity of the load-bearing walls; and the outside and interior stairways of the office/residential unit were inadequately supported and improperly built, making them unsafe. Cox’s declaration stating these issues were “fixed” or “repaired” does not address whether the fixes or repairs (about which no details were offered) rendered the various buildings/structures sound from a structural integrity standpoint. The trial court was entitled to credit the county’s uncontroverted evidence about these buildings/structures, and alone it supported the trial court’s findings of substandard building violations and the appointment of a receiver under section 17980.7.

Defendant’s assertions of error relate to whether a full evidentiary hearing or trial was required as a matter of constitutional due process so that other evidence could have been presented; whether a receiver should have been appointed without consideration of alternative remedies; and whether evidence related to Cox improperly biased the trial court. We consider those arguments in turn below.

1. Trial Court’s Denial of Trial Was Not Error

a. Due Process Argument Forfeited

Defendant argues the trial court refused to hear oral testimony and precluded defendant from cross-examining the county’s witnesses in violation of due process. Defendant also argues that even to the extent he was not entitled to present oral testimony or cross-examine witnesses, California Rules of Court, rule 3.1306, permits the court to allow oral testimony at a law and motion hearing for good cause shown, and defendant argues it presented good cause for the presentation of oral testimony.

The county argues defendant failed to preserve this issue for appeal because the court never expressly ruled on whether defendant could present oral testimony, and defendant did not seek such a ruling. Second, the county argues, even if the issue was adequately preserved for appeal, defendant did not comply with the requirements to request the presentation of oral testimony. Third, even if the defendant had complied with the requirements to request the presentation of oral testimony, the trial court did not abuse its discretion in denying the request. Fourth, even if the court erred in refusing to admit oral testimony at the hearing, the error was not prejudicial. Finally, there was no due process violation as a result of precluding defendant from presenting oral testimony.

We agree the due process argument was forfeited. As a general rule, a constitutional issue in a civil case must be raised at the earliest opportunity or it will be deemed forfeited. (Hershey v. Reclamation Dist. No. 108 (1927) 200 Cal. 550, 564.) “‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’” (United States v. Olano (1993) 507 U.S. 725, 731.) “‘The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.’” (In re Sheena K. (2007) 40 Cal.4th 875, 881.) “[A]n appellate court will ordinarily not consider procedural defects or erroneous rulings where an objection could have been, but was not raised below.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826; see Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1.)

At every possible juncture, defendant forfeited an argument that constitutional due process required a full evidentiary hearing or trial on the appointment of receiver. No request for an evidentiary hearing was filed under rule 3.1306(b); thus, defendant did not properly seek a full evidentiary hearing on any ground. But even overlooking that procedural failing, defendant’s opposition brief also failed to adequately raise a constitutional due process issue. Defendant argued instead that it was entitled to a trial based upon the apparent misapprehension a receiver could be appointed only postjudgment after a full trial on the underlying claims, but the type of receiver sought by the county had nothing to do with the appointment of a postjudgment receiver. (See Code Civ. Proc., § 564, subd. (b)(3), (4).)

Specifically, defendant asserted the remedy of a receiver “may be imposed only after the court has entered judgment based on findings of fact.” Defendant then quoted from City and County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, page 744 (Daley), which states “[t]he plain language of Code of Civil Procedure section 564, subdivision (b)(3), permits the appointment of a receiver ‘[a]fter judgment, to carry the judgment into effect.’” Somehow interpreting Daley to require a judgment (and necessarily, therefore, a trial or a stipulation of judgment) before a receiver could be appointed, defendant claimed the county sought to bypass a trial on the merits by seeking a receiver through a trial by declaration. Defendant maintained trial by declaration was not permitted under California law and cited at length to a portion of Elkins v. Superior Court (2007) 41 Cal.4th 1337 (Elkins) that held declarations offered in lieu of live testimony at a marital dissolution trial constituted inadmissible hearsay.

This argument had nothing to do with procedural due process, it was a misconception about the receiver remedy in general and a misreading of Daley. The appointment of a receiver is a provisional remedy in an action that seeks some other relief by final judgment. (6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, ch. 6, § 419, p. 870.) A provisional remedy is a temporary one, and it cannot be employed independently. By itself, it is neither an action nor a special proceeding. (Id., § 1, p. 25.) The appointment of a receiver is not a merits decision on the underlying complaint, nor is it the sole opportunity of the litigants to be heard on the issues in the litigation. The right to a trial attaches to the civil action itself, not to the motion for appointment of a receiver as a provisional and auxiliary remedy. As such, similar to a preliminary injunction sought under Code of Civil Procedure section 527, there is no automatic right to present live testimony at the motion hearing. This does not implicate due process rights because the opposing party still has the safeguard of a full trial on the underlying complaint. (See Schraer v. Berkeley Properties Owners’ Assn. (1989) 207 Cal.App.3d 719, 732 [injunction issued under Code Civ. Proc., § 527, subd. (a), may be issued on the basis of affidavit alone because underlying complaint will still be adjudicated].)

Daley did not hold otherwise. It was simply a case that involved a receiver appointed to enforce an existing judgment under Code of Civil Procedure section 564, subdivision (b)(3), in a public nuisance abatement case. (Daley, supra, 16 Cal.App.4th at pp. 742–744 [explaining why stipulated judgment in public nuisance case was encompassed by Code Civ. Proc., § 564, subd. (b)(3)].) That case is inapposite to the receiver sought here under Health and Safety Code section 17980.7, subdivision (c), and additionally under Business and Professions Code section 17203 and Code of Civil Procedure section 564, subdivision (b)(9), while the underlying complaint (stating six causes of action) was litigated. Defendant’s subsequent citation to Elkins was merely the basis for the evidentiary objection to the county’s declaration evidence as inadmissible hearsay in a trial—and the equivalent of trial, defendant incorrectly asserted, had to be offered at the hearing on the motion to appoint the receiver. This evidentiary objection, based on the assumption of a trial right, did not preserve for appeal an entirely different argument that constitutional due process required an evidentiary hearing before a receiver could be appointed under section 17980.7.

An apt analogy is found in the forfeiture of a confrontation clause argument under the Sixth Amendment when, post-Crawford v. Washington (2004) 541 U.S. 36 (Crawford), only a bare hearsay objection is interposed. To preserve an evidentiary objection on appeal, a party must make a timely objection in the trial court “so stated as to make clear the specific ground of the objection or motion[.]” (Evid. Code, § 353, subd. (a).) The rule’s purpose is to give the trial court a concrete legal proposition to pass on, to give the opponent an opportunity to cure the defect, and to prevent abuse. (People v. Partida (2005) 37 Cal.4th 428, 434.)

Following Crawford, a hearsay objection does not necessarily preserve a confrontation clause claim for appeal because violation of the hearsay doctrine under state law and violation of the confrontation clause present two separate legal analyses that are no longer one in the same—i.e., not all hearsay is testimonial. (See People v. Redd (2010) 48 Cal.4th 691, 730–731, fn. 19; People v. Rangel (2016) 62 Cal.4th 1192, 1216–1217.) Unless the context makes clear otherwise, a hearsay objection alone does not provide the trial court with concrete grounds indicating the purported hearsay is testimonial and implicates the confrontation clause, and alone a hearsay objection fails to provide the opponent with an opportunity to establish the statement was not testimonial. (Cf. People v. Holmes (2012) 212 Cal.App.4th 431, 436 [hearsay objection was understood in context to encompass a constitutional confrontation clause objection].)

It is incongruent to conclude a hearsay objection such as defendant’s could preserve a constitutional procedural due process claim in this context when a hearsay objection of similar imprecision would not preserve a constitutional confrontation clause claim in the criminal context. At its core, the objection defendant stated in the opposition brief was a misguided evidentiary challenge to declaration evidence as hearsay. That implicates an entirely different legal analysis than an argument that constitutional procedural due process, despite the nature of the provisional remedy sought, mandated a full evidentiary hearing. Moreover, it does not appear the objection was meant to be founded on procedural due process, and it was not understood by the county or the trial court to be such.

At the hearing, defendant interposed no objection on any ground as to the court’s ruling it would not hold a trial on the motion to appoint a receiver or the court’s consideration of the county’s declarations. While defendant’s counsel indicated Bonar was present, and that he was “prepared to opine on various issues,” counsel failed to articulate what those various issues were. Defendant’s counsel asserted at the hearing that a trial could be set “on a short calendar” after some discovery on an expedited basis, underscoring the misunderstanding about the trial right asserted in the brief. Assuming the trial court could have surmised defendant’s presumption of a trial right and evidentiary objection constituted a constitutional challenge to the law and motion procedures, defendant presented no evidence or proffer showing why live testimony was necessary for a sufficient opportunity to be heard on the motion.

Under these circumstances, defendant forfeited a claim that procedural due process mandates a full evidentiary hearing before the appointment of a receiver may be ordered. Nevertheless, forfeited or not, the due process argument is not meritorious.

b. No Due Process Violation

“‘The essence of due process is the requirement that “a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.”’ [Citations.] The opportunity to be heard must be afforded ‘at a meaningful time and in a meaningful manner.’ [Citations.] To ensure that the opportunity is meaningful, the United States Supreme Court and [the California Supreme Court] have identified some aspects of due process as irreducible minimums. For example, whenever ‘due process requires a hearing, the adjudicator must be impartial.’ [Citations.] [⁋] Beyond these broad outlines, however, the precise dictates of due process are flexible and vary according to context.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212.) “‘“[D]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstance.’” (Mathews v. Eldridge (1976) 424 U.S. 319, 334 (Mathews), quoting Cafeteria Workers v. McElroy (1961) 367 U.S. 886, 895.) “‘“[D]ue process is a flexible concept .… [Citations.] Thus, not every situation requires a formal hearing accompanied by the full rights of confrontation and cross-examination.”’” (James v. City of Coronado (2003) 106 Cal.App.4th 905, 912.) What process is due must be tailored to the particular situation. (Ibid.)

Defendant argues the due process rights guaranteed under the Fifth and Fourteenth Amendments of the United States Constitution entitle a civil litigant to cross-examine and confront witnesses and present oral testimony during a hearing on a motion to appoint a receiver. However, the legal authority defendant draws upon for this proposition involve dependency proceedings (In re Mary S. (1986) 186 Cal.App.3d 414), a marital dissolution trial (Elkins, supra, 41 Cal.4th at p. 1357), and criminal proceedings (Snyder v. Massachusetts (1934) 291 U.S. 97), which have little relevance to a law and motion hearing for the appointment of a receiver.

Based on this legal authority and the few phrases in defendant’s brief stating the preclusion of live testimony at the hearing was “unconstitutional” and that defendant demanded the “right to confront the witnesses, and to present testimony to the Court” but was denied those opportunities, it is difficult to ascertain a cogent due process analysis or its scope. It appears defendant continues to presume the receiver could only be appointed after a trial or stipulated judgment. The opening brief fails to acknowledge the provisional and auxiliary nature of the receiver remedy sought and the continued pendency of the underlying complaint. It also cites no legal authority relevant to whether due process mandates additional hearing procedures before a court may order the appointment of a receiver. All that is presented is a bare assertion due process requires the presentation of live testimony and cross-examination in the context of appointing a receiver, but defendant structures no legal analysis around that proposition.

Defendant notes section 17980.7, subdivision (c)(14), provides that the section “shall not be construed to deprive an owner … of all procedural due process rights guaranteed by the California Constitution and the United States Constitution[,]” but fails to explain why due process mandates an evidentiary hearing in this context. Although due process guarantees “‘some kind of hearing … at some time before a person is finally deprived of his property interests[]’” (Memphis Light, Gas & Water Div. v. Craft (1978) 436 U.S. 1, 16), a full evidentiary hearing is not required in every case (Mathews, supra, 424 U.S. at pp. 333–334). Rather, the type of hearing depends on the circumstances. (Id. at p. 334.)

While neither section 17980.7 nor the Rules of Court entitle defendant to the presentation of oral testimony or to confront and cross-examine witnesses at a hearing regarding the appointment of a receiver, an evidentiary hearing of this type is available upon a timely request supported by good cause. (Rule 3.1306(b).) Through statute and the Rules of Court, litigants are provided a robust and thorough opportunity to be heard on a motion to appoint a receiver—a provisional remedy subject to ongoing court oversight.

Beyond notice of the alleged substandard building violations and sufficient time to abate the violations as provided under sections 17980.6 and 17980.7 (here, seven months after the December 2016 notice and order was issued), the hearing on a subsequent motion for the appointment of a receiver under section 17980.7, subdivision (c), is subject to a minimum 16 court-day notice requirement. (Code Civ. Proc., § 1005, subd. (b).) In this case, the hearing was timely noticed and the motion was accompanied by expert declarations outlining substandard building violations related to structural, electrical, and water and sewage deficiencies, as well as fire hazards, among other things. If there had been insufficient time to marshal evidence to dispute these declarations, a request for a stipulation to continue the hearing could have been addressed to opposing counsel under Code of Civil Procedure section 595.2; absent a stipulation, a request could have been made to the court to continue the hearing. (See generally Cohen v. Herbert (1960) 186 Cal.App.2d 488, 494 [“The trial judge must exercise his discretion with due regard to all interests involved. The denial of a continuance which has the practical effect of denying the applicant a fair hearing is often held reversible error.”].)

Under the Rules of Court, a motion to appoint a receiver is designated as a “‘[l]aw and motion’” proceeding. (Rule 3.1103(a)(2).) In turn, rule 3.1306 provides that “[e]vidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause.” (Rule 3.1306(a).) Seeking leave to introduce oral testimony requires a party to file a written statement stating the nature and extent of the evidence to be introduced no later than three court days before the hearing. (Rule 3.1306(b).)

At the hearing, defendant’s counsel conceded defendant had no expert opinion admitted in opposition to the county’s evidence, but stated he “simply didn’t have the time” because defendant “got little or shortest amount of notice that was permitted by law for the most extreme remedy that’s permitted by law.” Yet, defendant had not attempted any of the procedural options to secure additional time to marshal evidence or to seek the presentation of live testimony. Defendant never sought a stipulation for a continuance from opposing counsel, nor did he seek a continuance with the trial court. Defendant elected not to submit a declaration from Bonar in support of its opposition brief, nor was a request made in the opposition brief that Bonar be permitted to offer live testimony at the hearing. The brief merely identified Bonar as a professional engineer retained to assist in obtaining approval of the Property for transient occupancy rental, and stated that an update regarding progress on the application would be provided at the hearing. Defendant also never made a proffer of Bonar’s opinions in the brief or at the hearing so that the court could evaluate whether such testimony might present a material factual dispute that necessitated live testimony.

Beyond that, defendant did not ask (either in the brief or at the hearing) to cross-examine any witnesses, identify any witnesses to be cross-examined, or indicate why such examination was necessary or warranted. Rather, defendant did nothing except complain in the opposition brief that county wanted “too much relief, too soon.” A trial court’s denial of properly made requests under these mechanisms could implicate due process, but the failure of a litigant to make the proper requests in the first instance does not. (See Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 706 & fn. 4 [“Due process demands only that litigants have the opportunity to be heard, not that they avail themselves of that opportunity.”].) And, defendant offers absolutely no analysis why due process mandates additional hearing procedures.

The court in Reddy reached the same conclusion we do here: the motion to appoint a receiver under section 17980.7 is a “‘[l]aw and motion’” proceeding under rule 3.1103, which allows oral testimony for good cause shown through the procedures provided in rule 3.1306. (Reddy, supra, 9 Cal.App.5th at pp. 464–465.) The trial court does not err in denying untimely or unsupported requests to present live testimony at these hearings. Although defendant attempts to distinguish Reddy, we are not persuaded. Defendant argues that in Reddy the receiver was appointed on motion after the parties had entered into a stipulated judgment about what violations were to be cured on the property, but defendant does not explain how this distinction makes any meaningful difference.

In Reddy, just as here, the parties disputed the appropriateness of a receivership remedy. (Reddy, supra, 9 Cal.App.5th at pp. 461–462.) For the first time at the hearing on the motion to appoint a receiver, Reddy sought an evidentiary hearing. (Id. at p. 463.) The court did not expressly rule on the request, but concluded Reddy had not complied with the stipulated judgment and found there was no feasible alternative to a receiver to oversee compliance. (Ibid.) On appeal, Reddy argued the trial court abused its discretion in refusing to take live testimony. (Ibid.) The appellate court rejected Reddy’s argument, reasoning that Reddy had failed to follow the proper procedures for seeking leave to present oral testimony during a law and motion proceeding under rules 3.1103 and 3.1306: he had not filed a written request specifying what testimony he wished to present within the required timeframe prior to the hearing. (Id. at pp. 464–465.) Thus, the trial court had not erred in denying the request. (Id. at p. 465.)

Defendant notes the oral testimony Reddy sought to present was duplicative of what Reddy had already provided to the court through declarations, which was not the case with the oral testimony defendant wished to present through his expert, Bonar. In Reddy, however, the court pointed to the duplicative nature of Reddy’s requested oral testimony as an additional basis to conclude that even if Reddy had complied with the Rules of Court in requesting the presentation of oral testimony, the trial court nonetheless would not have erred in denying the requested evidentiary hearing. (Reddy, supra, 9 Cal.App.5th at p. 465.) Defendant argues that here, unlike in Reddy, there was good cause shown for such a hearing—Bonar’s testimony would have contravened the declarations offered by the county, the county would have had an opportunity to cross-examine Bonar or file supplemental declarations in response, and there had been no time to prepare Bonar’s declaration prior to the hearing. There is nothing in the record detailing what Bonar would have opined regarding the Property, so we cannot conclude there was no error on the ground it was duplicative or that it would have been unhelpful like in Reddy. Yet, that does not obviate our conclusion the trial court committed no error in refusing to allow the presentation of oral testimony or an opportunity for cross-examination of witnesses in the absence of a timely and supported request.

Whether or not good cause could have been shown for the presentation of live testimony, the record here does not provide any basis to conclude the trial court erred in refusing defendant’s last minute, unsupported request that Bonar testify or that a trial be held. Without a supported basis to present live testimony, defendant cannot show the ruling precluded a fair hearing. Moreover, defendant makes no argument how the existing hearing procedures are constitutionally insufficient. As it stands, the absence of a timely request and any declaration by Bonar or a proffer of what he would have opined in live testimony leaves defendant unable to show any error, let alone one of constitutional dimension, or resulting harm. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 [the appellant has the burden of affirmatively demonstrating prejudicial error].) An error does not defy application of the harmless error analysis just because a litigant failed to offer evidence which left an incomplete record. (See Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 309 [appellant’s inability to demonstrate prejudice caused by failure to develop record did not mean error required reversal].)

We also decline to join our dissenting colleague’s broad conclusion that constitutional procedural due process mandates a full evidentiary hearing before appointing a receiver under section 17980.7. In noting that the Rules of Court must “yield” (dis. opn., post, p. 9) to the federal Constitution, it is unclear whether the dissent is suggesting the applicable rules are unconstitutional (either facially or as applied) by failing to mandate a full evidentiary hearing on motions to appoint a receiver. As the dissent focuses specifically on the appointment of a receiver under section 17980.7, it is also unclear whether the dissent views section 17980.7 as unconstitutional (either facially or as applied) for failing to mandate a full evidentiary hearing to appoint this specific type of receiver. Our dissenting colleague’s discussion does not point to any consideration of the statute itself in this regard. Setting aside these ambiguities, we disagree with the proposition that due process mandates the right to a full evidentiary hearing prior to the appointment of a receiver under section 17980.7 in all cases, regardless of the nature of the disputes or the evidence to be presented.

Section 17980.7 allows an enforcement agency to seek a court order appointing a receiver when substandard building violations under section 17980.6 have not been cured by the owner. (§ 17980.7, subd. (c).) Obtaining a court order for the appointment of a receiver is subject to formal judicial process and adjudication, not an agency administrative proceeding. That judicial process is outlined by statute and by the Rules of Court, as described above. Whether additional judicial procedures are required to safeguard a litigant’s due process rights, Mathews provides the three distinct interests to consider:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews, supra, 424 U.S. at p. 335; see California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 347.)

The facts of this case evidence defendant’s refusal and unwillingness to avail itself of the available procedures to present evidence and to seek a full evidentiary hearing, they do not demonstrate an across-the-board constitutionally infirm hearing procedure for the appointment of receivers under the Health and Safety Code. While we can agree private property owners have a significant interest in controlling and enjoying their property, the dissent does not account for the second interest identified by Mathews (which is the risk of an erroneous deprivation of the protected interest through the procedures used, and any probable value of additional or substitute procedural safeguards), and a different competing government interest should be considered. (Mathews, supra, 424 U.S. at p. 335.) Given the judicial process afforded to such appointment motions, and the ability of parties to seek the presentation of live testimony through a request under rule 3.1306(b), the risk of an erroneous deprivation under the procedures used, and the probable value of adding additional procedures, is low.

As described above, motions to appoint receivers are heard after a prescribed minimum notice period and upon a motion supported by all the evidence on which the enforcement agency relies. Within that period, motion opponents have the ability to seek additional time to marshal evidence in opposition, if necessary. Where there are disputed issues of fact that hinge on credibility and weight of the evidence, litigants have the ability to seek the presentation of live testimony under rule 3.1306(b) upon a showing of good cause. In the general case, substandard building violations will likely involve engineering or structural issues that are within the purview only of an expert whose opinion is likely to be one of objective assessment that does not regularly implicate credibility or veracity issues, and such assessments are better suited to written rather than oral presentation. (Mathews, supra, 424 U.S. at pp. 344–346 [doctor’s objective reports on examination, supported by clinical and laboratory tests, do not implicate credibility and veracity in the general case, and the proof is more amenable to written than oral presentation, thus risk of error without oral testimony is diminished].) Given these factors, the risk of a receiver being appointed in error and thereby erroneously depriving the property owner of control and enjoyment of the property is low.

Any risk of error is ameliorated further because, as already noted, these appointment proceedings are judicial, not administrative like the direct abatement proceedings relied upon by the dissent; administrative proceedings are not subject to all the formal rules of evidence, notice, and timing that apply in a judicial proceeding. Under California Code of Regulations, title 25, section 62, the direct abatement administrative hearing is apparently the only opportunity to be presented with the enforcement agency’s evidence in support of its abatement notices, or for the property owner to present evidence to the enforcement agency. In contrast, the provisional receiver remedy is subject to ongoing judicial oversight of a neutral receiver who acts as an arm of the court, it is not decided and/or carried out directly by the enforcement agency as permitted in sections 17980.8 and 17980.10. Thus, if the property is not substandard by degree or even substandard at all, the receiver would inform the trial court, further lessening the effect of any erroneous appointment on the property owner’s interests. (Lesser & Son v. Seymour (1950) 35 Cal.2d 494, 499 [receiver is an agent and officer of the court, and property in the receiver’s hands is under the control and continuous supervision of the court]; Code Civ. Proc., § 568.)

Also low is the probable value in supplying an evidentiary hearing for every such motion because substandard building violations dangerous to the health and safety of residents and the public, for which section 17980.7, subdivision (c), receivers are appointed, do not necessarily turn on questions of fact that can be resolved only through live testimony with cross-examination rights. Moreover, not all factual disputes are material. As a practical matter, when there are multiple substandard building violations alleged, disputed issues of fact about some of those violations become irrelevant if there are other, undisputed substandard building violations that, standing alone, warrant the appointment of a receiver. In such cases, a full evidentiary hearing on the disputed issues would be useless because those disputes are immaterial to the outcome. The trial judge is uniquely suited to determine in which cases live testimony and/or cross-examination is warranted.

In this case, many of the substandard building violations alleged by the county could be adequately disputed only through opposing expert testimony. (See generally Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 761–762 [when the matter is one within the knowledge of experts only and not within the common knowledge of laypersons, expert opinion evidence is required].) Defendant’s counsel conceded at the July 2017 hearing defendant had not sought admission of any expert declaration to contradict the county’s experts. Cox was not an expert who could opine on certain structural deficiencies presenting a risk of building or structure collapse identified by the county, and the presentation of his live testimony could not have defeated the motion. Beyond that, again, defendant made no proffer what Bonar was prepared to opine or why a declaration would be insufficient. There is no indication why live testimony in a full evidentiary hearing was necessary for the court to decide the motion. Given the opportunity to review all the evidence in support of the enforcement agency’s motion in advance of the hearing, the opportunity to submit opposing documentary evidence directly to the trier of fact, and to present argument at a hearing, in addition to the ability to request live testimony on material disputed factual issues that uniquely implicate weight and credibility issues, there is little probable value in requiring a full evidentiary hearing as a matter of constitutional right.

In considering the governmental interest, the dissent balances the enforcement agency’s efficiency interests and financial burdens, but generally it is only in administrative proceedings conducted by the enforcement agency that such interests would be relevant. In a judicial proceeding, the enforcement agency does not control or mandate the process by which receiver appointment motions are decided. It is the countervailing interests of the state court system that are relevant in providing more judicial process, not the county’s efficiency interest or financial burden caused by additional hearing procedures. (Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325–1327 [whether court’s local rule was facially unconstitutional and violated a litigant’s procedural due process rights determined by balancing interest of the court in formulating the local rule pursuant to Mathews, supra, 424 U.S. at pp. 334–335].) Allowing for, but not mandating, an evidentiary hearing on motions to appoint a receiver under rule 3.1306(b) permits trial courts to balance the burdens a full evidentiary hearing imposes on the court system while protecting property owners from an erroneous deprivation of their protected interests.

The existing procedures under the Rules of Court appropriately balance these interests in a manner that substantially mitigates the risk of an erroneous appointment. No other California decision has determined procedural due process requires a full evidentiary hearing or trial upon a motion to appoint a receiver, and we find such a conclusion unwarranted in view of the process and opportunities available to litigants to be fully heard under the existing judicial procedures.

Moreover, even if we were persuaded of the existence of a procedural due process error in failing to allow an evidentiary hearing or a trial in this case, it is unclear how defendant or our dissenting colleague has considered the prejudicial effect of that error. (Cal. Const., art. VI, § 13 [reversal permitted only if an error resulted in a miscarriage of justice]; Pool v. City of Oakland, supra, 42 Cal.3d at p. 1069 [the appellant has the burden of affirmatively demonstrating prejudicial error].) “To be sure, even under article VI, section 13, [of the California Constitution,] an error is reversible per se when it constitutes ‘a “‘structural [defect] in the … trial mechanism’” that defies evaluation for harmlessness.’ [Citations.] But ‘[c]ategorization of an error as structural represents “the exception and not the rule.”’ [Citation.] ‘[A] strong presumption’ exists against finding that an error falls within the structural category, and ‘it will be the rare case’ where an error—even ‘a constitutional violation’—‘will not be subject to harmless error analysis.’” (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.) The prejudicial effect of an error must be assessed even in the criminal context where liberty interests of the greatest magnitude are often at stake. (See, e.g., People v. Gonzalez (2018) 5 Cal.5th 186, 195–196 [describing different prejudicial error standards].)

Neither defendant nor the dissent consider the issue of prejudice, what standard should be applied to a prejudice analysis, and how this analysis is affected by the fact that defendant failed to offer an expert declaration or any oral or written proffer of what Bonar would have opined in live testimony.

In sum, defendant’s brief did not adequately frame the issue of whether due process requires more expansive law and motion proceedings to appoint a receiver, nor did it present any legal analysis attempting an answer. While expressly invoking a constitutional right to present live testimony, the brief appears based on the same fundamentally flawed proposition as contained in the opposition brief filed with the trial court: that a trial or a judgment must necessarily precede the appointment of a receiver. Defendant presents no argument why the imposition of a provisional remedy—and one that is subject to ongoing court oversight while the litigation proceeds on the underlying complaint—mandates an evidentiary hearing as a matter of constitutional right, cites no legal authority relevant to the due process analysis, and considers none of the salient interests necessary to conclude more process is warranted.

Based on the foregoing, we cannot conclude the trial court abused its discretion in denying a trial or evidentiary hearing on the motion to appoint a receiver.

2. The Trial Court Considered a Less Drastic Remedy

Defendant argues the trial court erred in appointing a receiver because the remedy was too drastic for the circumstances, and the trial court erred by failing to consider and employ available alternative remedies. The county argues section 17980.7 does not require a court to consider or employ a less drastic alternative in lieu of appointing a receiver, but, even if it did, the court did consider other alternative remedies.

“Section 17980.7[, subdivision ](c) has 15 subparagraphs, but only the first two address what the trial court must consider before appointing a receiver.” (City of Desert Hot Springs v. Valenti (2019) 43 Cal.App.5th 788, 794.) “In appointing a receiver, the court shall consider whether the owner has been afforded a reasonable opportunity to correct the conditions cited in the notice of violation.” (§ 17980.7, subd. (c)(1).) Further, the court may not “appoint any person as a receiver unless the person has demonstrated to the court their capacity and expertise to develop and supervise a viable financial and construction plan for the satisfactory rehabilitation of the building.…” (Id., subd. (c)(2).) The statute does not require the court to consider or employ less drastic available remedies.

Based on the statute’s lack of any express requirement to consider less drastic alternatives before appointing a receiver, the court in Reddy reasoned this implicitly indicated the Legislature “concluded that uncorrected substandard building conditions present a sufficient danger to justify appointment of a receiver without regard to less invasive alternatives.” (Reddy, supra, 9 Cal.App.5th at p. 467.) In reaching this determination, however, the court acknowledged there is authority to support the proposition that when a receiver is appointed for purposes other than those under section 17980.7, a less drastic remedy should be considered and employed if it is available. (Reddy, supra, at p. 467.)

The decision to appoint a receiver is not an abuse of discretion merely because the proponent of the receivership may have other adequate remedies. (Gold v. Gold (2003) 114 Cal.App.4th 791, 807–808 [receiver appointed to accomplish dissolution of two corporations not an abuse of discretion though another potential remedy was available].) Nonetheless, as Reddy acknowledges and as defendant argues here, in other contexts courts have been required to consider other available remedies before appointing a receiver. (See e.g., Daley, supra, 16 Cal.App.4th at p. 745 [in determining the propriety of a receivership under Code Civ. Proc. § 564, “[A] trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership.”].)

Here, however, regardless whether the trial court was required to consider less drastic alternatives, there was no error because the trial court necessarily did so. Defendant argued for a less drastic remedy in his brief filed with the trial court and defendant’s counsel expressly argued at the hearing that an alternative remedy of “injunctive relief both prohibitory and requiring express action[]” should be employed instead of receivership. The court rejected this argument by appointing a receiver, and we cannot conclude there was an abuse of discretion in doing so.

The trial court had before it evidence indicating an injunctive remedy would not be sufficient. A stipulated judgment and permanent injunction requiring defendant to remediate other property had been entered in 2016, but the county’s Building Director stated in his supplemental declaration that defendant had failed to comply with the terms of that judgment. Thus, there was evidence an injunction would not be a suitable and effective remedy, particularly in the face of violations that not only threatened residents and members of the public staying at or visiting the Property, but involved fire dangers that are of special concern in California. The court also had before it evidence defendant had not responded to years’ worth of prior violation notices as to this Property. While the court may not have expressly stated why an injunction was not a suitable remedy, defense counsel presented the argument in his papers and in his argument at the hearing, which the court necessarily considered. Under these circumstances, we find no error. (See Moore v. Oberg (1943) 61 Cal.App.2d 216, 221 [“question of the appointment of a receiver is addressed to the sound discretion of the [trial] court … [even if] reasonable minds might differ with respect to the necessity for the receivership”].)

3. Excluded Character Evidence Did Not Taint Proceedings

The county supported its motion by proffering a news article that defendant’s managing member, Cox, had been arrested on criminal charges in November 2015, and that article was referenced in Williams’s and Kinslow’s declarations. At the hearing on the motion, the court stated it would “not take into consideration, in any way[,] shape or form, the other case that Mr. Cox is involved in, in this court.” Defendant’s counsel accepted the court’s ruling, and made no further objection.

On appeal, defendant argues that while the court stated it would not consider the criminal case, “the motion to appoint receivership is predicated on the alleged ‘danger’ Mr. Cox poses to the county per … Kinslow’s and … William’s declarations.” Defendant argues that no matter how “much the trial court wants to believe that it can prevent the contamination of the proceedings, … it was impossible to have an untainted proceeding.” Defendant also asserts it is no coincidence the county, despite representing it had sought compliance from defendant for over eight years, would choose to bring receivership proceedings while Cox’s criminal case was pending.

This argument lacks persuasive value for several reasons. The trial court expressly stated it was not considering anything related to Cox’s criminal proceeding. References to that criminal case in the declarations and the proffered news article were therefore not admitted into evidence and expressly were not considered in deciding the motion.

Also, defendant made no objection on judicial bias grounds nor asked the judge to recuse or disqualify himself, thus the argument was not preserved for review. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218, citing People v. Seaton (2001) 26 Cal.4th 598, 698; see People v. Tappan (1968) 266 Cal.App.2d 812, 816–817 [following trial judge’s allegedly prejudicial pretrial comment, the defendant’s failure to complain of judge’s bias during trial showed the defendant’s confidence in judge’s impartiality].)

Moreover, there is no indication the news article and declarations regarding Cox’s criminal case proffered by the county tainted any of the proceedings. There was sufficient evidence from county’s experts about the substandard and dangerous conditions on the Property to support the appointment of a receiver, and defendant does not argue otherwise. Other than defendant’s conjecture, there is no basis to conclude the proffered evidence in support of the county’s motion had any effect on the proceedings. (See Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795–796 [adverse rulings, especially those subject to judicial review, do not establish charge of judicial bias].)

Finally, we note judicial officers are routinely called upon to determine the admissibility of evidence and then render subsequent decisions in the case without any consideration of the contents of a proffer previously excluded. Defendant offers no authority that such judicial decisionmaking automatically renders that judicial officer biased. (Cf. In re Richard W. (1979) 91 Cal.App.3d 960, 968 [a judge is not necessarily disqualified to try a case merely because, in a separate proceeding, he heard a case of a coparticipant or passed on the application of a codefendant for probation].)

DISPOSITION

The trial court’s order appointing a receiver is affirmed. Costs shall be awarded to the county. (Rule 8.278(a)(3).)

MEEHAN, J.

I CONCUR:

DETJEN, J.
POOCHIGIAN, Acting P.J., dissenting,

In March 2017, the County of Mariposa (the County) sued JDC Land Company, LLC, (JDC) seeking, among other things, a declaration that the subject property is a public nuisance; an injunction requiring JDC to abate all violations of law on the property; and to appoint a receiver to take possession and control of the property. The complaint also requested that the court permit the requested receiver to sell the property to satisfy “the judgment.”

About three months later, the County filed a motion requesting the court (1) enjoin JDC from allowing or maintaining nuisances on the property and (2) appoint a receiver to seize the property. As outlined by the majority opinion, the County supported its motion with several declarations.

JDC’s principal, Jerry Cox, filed a declaration opposing the motion. Cox claimed he had remedied the vast majority of the violations alleged by the County. Cox stated that a deck and a gazebo to which several of the alleged violations pertained had been removed. Cox also stated that fire extinguishers and smoke detectors had been installed in required locations; that carbon monoxide detectors were being installed; that electrical wiring, an exterior stairway, barn doors, roof supports and an interior stairway ladder had all been repaired; and that junk, chemicals and combustible materials had all been cleaned up. Cox disputed the County’s claim that certain construction on the property was unpermitted; and he provided permit numbers he claimed applied. Cox also stated that a shower to which certain violations applied was being removed.

Attached to the declaration was an application for a permit to demolish the pole barn, which would have obviated the violations pertaining to that building. Cox’s declaration asserted that the County had issued this demolition permit, permit No. 32927. The County disputed this claim.

Cox stated that he hired a licensed civil engineer to apply for a transient occupancy registration certificate. Finally, Cox asserted that several other alleged violations actually complied with the law.

In its memorandum of points and authorities, JDC’s first argument was that the County was seeking “too much, too soon.” (Capitalization omitted.) JDC posited that a receivership was a remedy which should only be imposed after the court entered judgment based on findings of fact. JDC argued that the County was trying to “bypass a trial on the merits, and to have this matter tried by declaration.” JDC stated it “does not consent to such procedure, and objects to all of the County’s declarations on hearsay grounds.” JDC asserted that “[a] trial is required before the court can determine the appropriateness of any relief sought by the County.”

JDC also argued that receiverships are a remedy of last resort and that courts must first consider less severe alternatives that would adequately protect the rights of the parties.

At the hearing on the County’s motion, JDC argued that the court “can grant various different kinds of remedies at a much lower level of impact than the appointment of a receiver.” Counsel noted the court could issue injunctive relief “requiring express action.”

JDC’s counsel stated that they had a licensed engineer in the courtroom “prepared to opine on various issues.” Counsel also suggested that the court schedule a trial in 30 or 45 days so that the parties could call witnesses and the court could determine whether a receivership was appropriate. The County’s counsel responded that due process was “covered” by the fact that the court would supervise the receiver and JDC could object to the receiver’s proposed actions. The court ruled that the violations were “clear” as “indicated by the [County’s] experts.” The court noted that JDC was given notice of the violations in December and has not “substantially complied some seven months later.”

The County included a proposed order with its motion, which the judge signed without modification on July 17, 2017. In its order, the court found that the nuisance conditions on the property are “ongoing” and “will likely persist unless this Court appoints a receiver to rehabilitate” the property. The court ordered that the receiver “take full and complete possession and control” of the property, including “tangible and intangible personal property located” on “or about” the subject property; and personal property “used in connection with” the subject property.

The order permitted the receiver to issue and record “Receiver’s Certificates of Indebtedness (‘Certificates’)” to evidence and secure the debts of the receivership estate. The order further provided that if the Certificates “cannot be immediately satisfied when they become due, Receiver may apply to this Court to sell the Subject Property….”

The order also had an injunctive component, which prohibited JDC from collecting income from the property; interfering with the receiver; transferring or encumbering its interest in the property; modifying insurance policies applicable to the property; and claiming tax deductions for the property during the receivership. Presumably, because the court was simultaneously appointing a receiver, the court did order JDC to abate the nuisances on the property.

JDC appeals.

DISCUSSION

By statute, when a property owner fails to comply with an order or notice of a building standard violation issued pursuant to statutory requirements (Health & Saf. Code, § 17980.6), the enforcement agency may ask the court to appoint a receiver over the property. (§ 17980.6, subd. (c).)

Receivers usually have substantial powers, including complete control of the property, and the power to collect rents and income. (§ 17980.7, subd. (c)(4).) Though it is an “extraordinary action,” receivers may sometimes even sell the real property they control. (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 931.)

The importance of the superior court’s role in supervising the receiver “cannot be overstated. [Citation.]” (City of Santa Monica v. Gonzalez, supra, 43 Cal.4th at p. 930.) Even when the trial court confirms a sale of the real property – a decision “drastic enough to extinguish an owner’s interest in property” – it is entitled to deference from appellate courts. (Id. at p. 931.)

Given the considerable powers of a receiver and the substantial property interests at risk, there are significant limitations on this statutory power to appoint a receiver. Important here, that power is expressly limited by “all procedural due process rights guaranteed by the California Constitution and the United States Constitution….” (§ 17980.7, subd. (c)(14).) This case concerns what effect the due process guarantees of the federal and state Constitutions have on the procedure for appointing receivers under section 17980.7.

I. JDC Did not Forfeit Its Argument that it was Entitled to a “Trial” on the Issue of Whether to Appoint a Receiver
II.
JDC contends the court erred in denying its request for a hearing with testimony and cross-examination. JDC cites authorities indicating that civil litigants have a due process right under the federal Constitution to cross-examine and confront witnesses; and that conducting trials by oral testimony rather than declaration is the historically accepted practice.

The majority holds JDC forfeited its due process claim by failing to preserve the issue in superior court. (Maj. opn., ante, at pp. 16–22.) The majority is mistaken. JDC argued in its written opposition to the County’s motion: “A trial is required before the court can determine the appropriateness of any relief sought by the County.” JDC asserted that the County was trying to “bypass a trial on the merits, and to have this matter tried by declaration” and that JDC “does not consent to such a procedure .…” JDC posited that a receivership was a remedy which should only be imposed after the court entered a judgment based on findings of fact. JDC insisted that the County was seeking to “take” his property “without a trial” – an effort that “cannot be permitted.” Moreover, at the hearing on the motion, JDC’s counsel expressly requested that a trial take place, at which the parties could “put witnesses on.” The majority says these all amounted to nothing more than “a hearsay objection” to the County’s declarations. (Maj. opn., ante, at p. 21.) I think a fair reading of JDC’s assertions show they were much more than that and conclude the issue of whether JDC was entitled to a trial was well-preserved in the superior court.

The majority states that neither respondent nor the trial court understood JDC’s objection to be predicated on due process. (Maj. opn., ante, at pp. 21–22.) However, at the hearing on the motion, counsel for the County argued a trial was unnecessary because the receiver would still need court approval for future actions, “[s]o any due process is covered.”

III. Due Process Requires an Evidentiary Hearing with Witness Testimony and Cross-examination Before the Government May Divest a Property Owner of Control Over its Private Property
IV.
A. The Law
B.
“The essence of due process is the requirement that “a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.’ [Citation.]” (Mathews v. Eldridge (1976) 424 U.S. 319, 348.) These requirements of procedural due process apply to deprivations of interests encompassed by the Fourteenth Amendment’s protection of life, liberty and property. (Board of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 569.) As a result, due process protections apply when the government takes action to abate a nuisance and thereby impacts private property rights. (See Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 717; see also § 17980.7, subd. (c)(14); cf. City of Santa Monica v. Gonzalez, supra, 43 Cal.4th at p. 926 [“[T]he statutory scheme clearly seeks to ensure that property owners are afforded due process before judicial appointment of a receiver”].) “ ‘Although it is elementary that an owner of property has no constitutional right to maintain it as a public nuisance, it is equally elementary that he has a clear constitutional right to have it determined by due process whether in fact and law it is such a nuisance.’ ” (Leppo v. City of Petaluma, supra, 20 Cal.App.3d at p. 717.)

“Once it is determined that due process applies, the question remains what process is due.” (Morrissey v. Brewer (1972) 408 U.S. 471, 481.) When protected property interests are implicated, “the right to some kind of prior hearing is paramount.” (Board of Regents of State Colleges v. Roth, supra, 408 U.S. at pp. 569–570, fn. omitted.) The hearing must be “ ‘appropriate to the nature of the case’ ” before the termination of the protected property right becomes effective. (Id. at p. 570, fn. 7.) “ ‘The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.’ [Citations.]” (Id. at p. 570, fn. 8.)

“ ‘[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ [Citation.]” (Goldberg v. Kelly (1970) 397 U.S. 254, 263.)

C. Analysis
D.
Here, the government function is seizing private property from its owner and giving control of it to a third party who is empowered to sell it, subject to court approval. The private interest affected is the right of a private property owner to control and enjoy his or her (or its) private property. Thus, the government action here is drastic and the affected private interest is important. Both considerations counsel in favor of robust procedural protections to decrease the likelihood of erroneous violations of private property rights. Among these would be cross-examination, which our system of law has established as the principal means by which the truth of witness testimony is tested. (See Davis v. Alaska (1974) 415 U.S. 308, 316.) Confrontation and cross-examination promote accuracy and reliability in governmental decision-making. (People v. Ramirez (1979) 25 Cal.3d 260, 275.)

In contrast, the government has a modest efficiency interest at stake. An evidentiary hearing with witnesses would often involve more work for the government’s lawyers and employees than the current procedure of submitting declarations and providing oral argument. While this incremental burden cannot be ignored, neither does it overcome the considerations described above. “The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency .…” (Stanley v. Illinois (1972) 405 U.S. 645, 656, fn. omitted.)

Moreover, any suggestion that an evidentiary hearing with testimony would be unduly burdensome to the government is undermined by the government’s own regulations in related contexts. A receivership is not the only tool local governments have to address nuisances. An enforcement agency can directly abate nuisances on private property without a receiver. (§ 17980.8.) If the enforcement agency declares the dwelling a nuisance, the agency may directly repair (or hire someone to repair) the deficiencies, or even demolish the building. (§ 17980.10, subd. (a).) However, the government’s own regulations require that a hearing be held before direct abatement occurs. (25 Cal. Code Regs., tit. 25, § 62(a).) At the hearing, both the enforcement agency and the property owner are entitled to present witness testimony. (Ibid.) Among other topics, witnesses may testify about the condition of the property, and the estimated cost of repair or removal. (Ibid.) If the enforcement agency prevails, it may direct the owner to abate the nuisance within 30 days or else the building will be demolished and a lien for the expense of demolition will be placed on the property. (Ibid.; see also 25 Cal. Code Regs., tit. 25, § 66.) The government’s establishment of this procedure, in a highly analogous context, strongly suggests that permitting witness testimony would not unduly burden the government.

For these reasons, I would conclude that due process requires an evidentiary hearing with witness testimony and an opportunity for cross-examination, before the government may divest a property owner of control over private property under section 17980.7.

Additional Considerations

The majority concludes otherwise, noting that section 17980.7 does not expressly provide for presentation of oral testimony. (Maj. opn., ante, at pp. 24.) But we must first decide what process is required by the Constitution. If the constitutional right to due process requires an opportunity to present oral testimony, it is not dispositive that no statute expressly provides for it. And even if that were not the case, section 17980.7 expressly acknowledges that the procedural due process rights of the federal and state Constitutions apply to the receivership context. (§ 17980.7, subd. (c)(14).)

Nor is it dispositive that the Rules of Court classify a receivership hearing as a law and motion matter at which the presentation of testimony is not permitted except on good cause shown. (See Cal. Rules of Court, rules 3.1103(a)(2) & 3.1306(a).) Like statutes, the rules of court must yield to the United States Constitution where there is conflict. (U.S. Const., art. VI, cl. 2.) To determine whether there is conflict, we must first answer the question of what process is due under the federal Constitution.

It is no answer to say that not every situation requires a formal hearing with cross-examination. (See maj. opn., ante, at p. 23, citing James v. City of Coronado (2003) 106 Cal.App.4th 905, 912.) Many situations do require exactly such a hearing. (E.g., Leppo v. City of Petaluma, supra, 20 Cal.App.3d at p. 718; see, e.g., Morrissey v. Brewer supra, 408 U.S. at pp. 488–489; Goldberg v. Kelly supra, 397 U.S. at pp. 267–268.) The observation that not every situation requires a formal hearing with cross-examination only begs the question: Is this one of those situations?

Finally, the majority says that “even if we were persuaded of the existence of a procedural due process error in failing to allow an evidentiary hearing or a trial on this case, it is unclear how defendant or our dissenting colleague has considered the prejudicial effect of that error. [Citations.]” (Maj. opn., ante, at p. 34.) The majority answers its own question by acknowledging that structural defects in the trial mechanism itself defy evaluation for harmlessness. If JDC was indeed entitled to a trial, it would be impossible to determine how denial of that right affected the outcome of its case.

CONCLUSION

Property owners have a “ ‘constitutional right to have it determined by due process’ ” whether in fact their property is a nuisance subject to abatement. (Leppo v. City of Petaluma, supra, 20 Cal.App.3d at p. 717.) Therefore, when a local government seeks to abate a nuisance, it has the duty “to afford the property owner a due process hearing which consists of an opportunity to be heard [citation] and a determination upon competent sworn testimony. [Citation.]” (Ibid.) There is no reason that proceedings under section 17980.7 should not fall squarely within these protections. I respectfully dissent from the majority’s contrary conclusion.

POOCHIGIAN, Acting P.J.