Filed 4 / 27 / 21 Bias i v. Nielson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

ANGELA DAWN BIASI ET AL.,

Appellants,

v.

LINDSAY F. NIELSON

,
Respondent. 2d Civ. No. B306279 (Super. Ct. No. 56

- 2019

- 00526430

- PR

- LA

- OXN) ( Ventura County)

Douglas Biasi, Sr. died intestate in 2019. His estate
consisted of a one

- half interest in a successful business, Roy’s Towing, as well as several commercial and residential properties he pur chased with business partner Roy Conn. Disputes between the estate’s administrators and Conn ensued. This prompted the probate court to appoint a receiver sua sponte to control the day

to

- day operation s of Roy’s Towing and to facilitate Conn’s buyout
of the estate’s interest in the company. The court later expanded the receivership to include all the estate’s real property assets

. Appellants challenge both orders.2 We conclude appellants failed to timely appeal the original order appointing a receiver. While they timely appealed the second order, w e conclude the probate court acted within its
discretion when it expanded the receivership . The record also fails to disclose how, if at all, appellants have been damaged by
the order

. 1 Judgment is affirmed.

FACTUAL BACKGROUND
AND PROCEDURAL HISTORY Douglas Biasi, Sr. and Roy Conn were longtime business partners who each owned a one

- half interest in Roy’s Towing.
The two also co

- owned several houses, commercial properties,
and vacant lots in Thousand Oaks and Newbury Park. Biasi died
intestate in February 2019. His four children inherited his

assets: Douglas Biasi, Jr. and appellants Angela Biasi, Tony Biasi, and Chad Bia si. The probate court appointed professional fiduciaries Jason Rubin and Maya Rubin as co

- administrators of Douglas Sr.’s
estate in June 2019. A dispute arose when Conn would not provide the m full access to the finances and compan y records of Roy’s Towing. The Rubins eventually petitioned the court to appoint two provisional directors to assume control over the business’s day

- to

- day operations

. Conn objected to the petition and denied accusations that he was obstructing the
admin istrators

. The probate court heard the petition on December 12, 2019.
The Rubins asserted Conn’s stonewalling prevent ed the m from valuing the business and exercising the estate’s shareholder rights. Conn’s counsel described the administrators’ demands as

1 At oral argument, appellant s’ counsel could not describe what remediation was ne eded at the properties in receivership

.3

unreasonable and decried their interfer ence with the c ompany’s day

- to

- day operations. Douglas Jr.’s counsel expressed concern
that hir ing two provisional directors would only further erode the estate’s dwindling assets. Appellants, who were then self

represented, received notice of the hearing but did not to attend. The court described the situation as “intractable” and told the parties it intended to appoint a receiver to facilitate Con n’s buyout of Roy’s Towing. Respondent Lindsay Nielson, who sat in
the courtroom ’s audience during the hearing, agreed to serve in
this role

. Conn’s counsel confirmed he had previously spoken to Nielson about the matter and agree d to his appointment. Th e
court revoked the administrator’s special powers to manage the company’s day

- to

- day operations and appointed Nielson as receiver

. Nielson appeared ex parte on December 18, 2019 to clarify whether the receivership extended to the estate’s real estate in terests. This included two properties owned by Douglas Sr. and
several others he co

- owned with Conn. The administrators opposed expanding the receivership beyond Roy’s Towing and claimed the parties’ dispute did not involve the estate’s real propert ies

. Conn’s counsel favored placing everything into the receivership because he anticipated his client might assert an
interest in D ouglas Sr.’s sole l y

- owned properties as well. Nielson was already familiar with the estate , Conn’s counsel explained,
and he co uld help untangle the many unwritten informal agreements his client and Douglas Sr. made over the years

. The court agreed and appointed Nielson receiver over all the estate’s real property interests in addition to Roy’s Towing

. Nielson sought court approval to sell one of the jointly owned properties in February of 2020. Conn agreed to the sale4

price and signed the purchase agreement. No party opposed Nielson’s request or appealed the order authori zing him to complete the sale. Appellants did not attend the hearing. The probate court approved Nielson’s request for a second property sale in April of 2020. A few weeks later he appeared ex parte to request permission to e xtend a $28,000 repair credit to the buyer

. This appears to have caught appellants’ attention. In

response, they filed a writ petition in this Court challenging the validity of Nielson’s appointment and requesting a stay of the pending property sale. ( Biasi v. Superior Court , B305597 .) We denied the petition on April 24, 2020. Appellants filed this appeal on June 11, 2020.
DISCUSSION
A. Appellants Did Not Timely Appeal the December 12, 2019 Order Appointing Nielson as Receiver Over Roy’s Towing The probate court ’s December 12 appointment order was immediat ely appealable. (Code. Civ. Proc., § 904.1 , subd. (a)(7).) Appellants sought writ review unsuccessfully in April of 2020 but
did not file their notice of appeal until June 11. The time to appeal expired on June 9 regardless of the manner they received
notice of the December 12 order. (See Cal. Rules of Court, rule 8.104( a)(1)(C) [“notice of appeal must be filed on or before the
earliest of:

. . . 1 80 days after entry of judgment”].) As such, we lack jurisdiction to consider their arguments about alleged pre

appointment procedural deficiencies and the probate court’s power to appoint a receiver sua sponte . (Cal. Rules of Court, rule 8.104(b); Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113 .)5

B

. Appellants Timely Appealed the December 18, 2019 Order

Expanding the Receivership Appellants appeal the probate court’s December 18, 2019
order as well . Respondents contend th is order is not separately appealable because it only “ clarifie d” the first

. This is partly correct. Authorizing Nielson to dispose of real properties used in connection with Roy’s Towing did not alter the scope of the receivership. Nielson could not achieve the c ourt’s December 12 mandate “to arrange for .

. . the sale of the business” if he could not lawfully grant a purchaser title to, or some possessory interest in, the land on which the business stood. Nielson returned six days later when he discovered the extent to which Douglas Sr. and Conn commingled their non

business assets as well

. The probate court’s December 18 o rder expanded the receivership considerably by giving Nielson authority over propert ies not used in connection with Roy’s Towing. We consider this aspect of the order distinct from the
December 12 order a nd thus separately appealable. Finding no service copy of the ruling in the record , we conclude appellants preserved their challenge b y filing a notice of appeal within 180 days of that date. (Code Civ. Proc., § 904.1 , subds. (a)(7) & (a)(10); see Prob. Code, § 1300, subd. (c) [appeal may be taken from an order “[a]uthorizing, instructing, or directing a fiduciary, or approving or confi rmi ng the acts of a fiduciary”].) The claim,
h owever, fails on the merits.
C

. The Probate Court Did Not Abuse Its Discretion When It Expanded the Receivership on December 18, 2019 A court may appoint a receiver “where necessary to preserve the property or rights of any party.” (Code Civ. Proc., § 564 , subd. (b)(9); see Rosenthal v. Rosenthal (1966) 2406

Cal.App.2d 927, 933 [“If jointly

- owned property is in danger of being lost or destroyed or misappropriated, the trial court may appoint a receiver to prote ct a party ’s interest in the property”].) “‘The rule is well established that the appointment of a receiver rests largely in the discretion of the trial court, and that its action in appointing a receiver will not be disturbed by an appellate court in the absence of a showing of abuse of discretion.’” ( Venza v. Venza (1949) 94 Cal.App.2d 878, 883, quoting Goes v. Perry (1941) 18 Cal.2d 373, 381.)
The record shows Douglas Sr.’s and Conn’s successful towing business allowed them to diversify into real estate. This included at least three houses, one vacant lot, and the four parcels on whi ch they operated Roy’s Towing. Their business relationship remained informal as it grew in complexity and value. They appear to have created no corporate entity or formal partnership to hold these assets and did not prepare succession plans. When Douglas Sr. died intestate

, he left his four heirs
with a sizeable but ill

- defined p ool of assets. The dispute
between estate administrators and Conn over access to financial
information was only a prelude to a much broader dispute that
threatened to consume the corpus of the estate . We conclude the probate court’s decision to expand th e receivership on December 18 fell within its discretion considering the estate’s composition and the intensifying animosity between Conn and Douglas Sr.’s
heirs. Appellants characterize Nielson as an “unauthorized representative” whose appointment usurped the administrators’ authority to dispose of the estate’s assets under Probate Code sections 10250 et seq. and 10304. They contend the “purely statutory” nature o f probate proceedings prohibited the court7

from appointing a receiver to perform those functions reserved for personal r epresentatives under the Code. We disagree

. “[T]he availability of other remedies does not, in and of itself, preclude
the use of a re ceivership.” ( Gold v. Gold (2003) 114 Cal.App.4th 791, 807, quoting Sibert v. Shaver (1952) 113 Cal. App. 2d 19, 21.) Appellants do not explain why a receiver cannot operate within this statutory framework or how Nielson deviated from his duties
as recei ver. In fact, a ppellants do not articulate any injury apart from the order’s purported procedural def ects . They allude to potential title issues but stop short of explaining how the receiver caused
or will cause such problems . They do not challenge the orders approving Nielson’s subsequent sale of two estate properties or contend he has harmed their rights as Douglas Sr.’s heirs. No appeal lies for those not aggrieved by a ruling. (Code Civ. Proc., § 902; Sabi v. Sterling (2010) 183 Cal.App.4th 916, 9 47.)
D

. Alleged Post

- Appointment Procedural Deficiencies Do Not Invalidate Nielson’s Initial Appointment Appellants argue that even if the probate court properly appointed Nielson, the appointment lapsed by operation of law
because the court failed to hold a confirmation hearing within 30 days. They cite rule 3.1176 (a) of the California Rules of Court as requiring such a hearing “[w]henever a receiver is appointed without notice.” Appellants ignore th is rule’s context. Rule
3.1175 dictates the circumstances in which a litigant may apply
for a receiver on an ex parte basis. Rule 3.1176 requires a successful applicant to confirm an ex parte appointment by obtaining an order to show cause, scheduling a hearing date, and serving the ap plication’s supporting documents on all adverse8

parties. Neither rule contains language extending these procedur es to a sua sponte appointment by the court itself. Appellants identify several other post

- appointment procedural deficiencies. This include s Nielson’s failing to take a receiver’s oath (Code Civ. Proc., § 567), to furnish undertakings ( id

., §§ 566, subd. (b), 567, subd. (b)), to file inventories (rule 3.1181), or to file monthly reports (rule 3.1182 ). Appellants raised these same alleged def iciencies when petitioning for writ
review of the December 12 and December 18 orders. 2 They appear to have emailed a copy of the writ petition to the probate court clerk in April of 2020 but the memorandum accompanying the writ sought no ruling on the me rits raised therein. 3 In addition, the record does not indicate they sought to address these issues in probate court after the petition’s denial. We decline to consider them for the first time on appeal. (See Estate of Casserley (2018) 22 Cal.App.5th 8 24, 831, citing Krechuniak v. Noorzoy (2017) 11 Cal.App.5th 713, 726 [reviewing court declined to consider standing argument not raised in probate court by administrator].)

2 We grant respondent’s unopposed request for judicial notice of appellants’ petition for writ of prohibition ( Biasi v. Superior Court

, B305597), dated December 16, 2020.

3 We grant appellants’ motion to augment the record to include their “Opposition to Ex Parte Request for Instructions re: Credit for Repairs to 91 S. Ellis, Newbury Park

, ” dated February 8, 2021. A non

- conformed copy of appellants’ petition for writ of prohibition is attached as Exhibit “B” to th at document.9 E

. Appellants’ Notice of Appeal Did Not Stay

Probate Court Proceedings Appellants a ssert their appeal “stayed the operation and effect” of the December 12 and 18 orders pursuant to Probate Code section 1310, subdivision (a). The record does not show whether appellants requested or obtained a stay from the probate court pursuant to this statute. It contains no ruling or briefing on the subject. We assume the court correctly allowed the receiver to continue performing his duties. ( In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133 [“A judgment or order of a
lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its
correctness” ] ; see Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 ; Prob. Code, § 1310 , subd. (b) [fiduciaries may exercise their dut ies “for the purpose of preventing injury or loss to a person or property

. . . as if no appeal were pending”].)
CONCLUSION The judgment is affirmed

. Respondent shall recover his costs on appeal.
NOT TO BE PUBLISHED.

PERREN , J.

We concur:

GILBERT , P.J. TANGEMAN , J.10 Roger L. Lund , Judge Superior Court County of Ventura

______________________________

MacCarley & Rosen, Mark MacCarley, for Appellants. Ferguson Case Orr Paterson, Wendy Cole Lascher and John A. Hribar; Law Offices of Lindsay F. Nielson, Lindsay F. Nielson, for Respondent.