Filed 11/17/14 Avila v. Lin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

MARIA FRANCISA AVILA et al.,

 Plaintiffs, Cross-defendants and 

Appellants,

v.

MING TANG LIN,

 Defendant, Cross-complainant and 

Appellant.

PATRICK BULMER, as Receiver, etc.

 Objector and Appellant.

 G049947

 (Super. Ct. No. CIVRS 1010040)

 O P I N I O N

Appeal from a judgment and postjudgment orders of the Superior Court of 

San Bernardino County, Joseph R. Brisco, Judge. Affirmed in part and reversed in part.

Squire Sanders and Stephen T. Owens for Defendant, Cross-complainant 

and Appellant.
2

Law Offices of Anthony Cosio and R.M. Anthony Cosio; Law Offices of 

Thomas Armstrong and Thomas Armstrong for Plaintiffs, Cross-defendants and 

Appellants.

Patrick Bulmer, in pro. per., for Objector and Appellant.

* * *

According to plaintiffs Maria Francisa Avila and Aidy Yang, defendant 

Ming Tang Lin is a fraudster who tricked plaintiffs into committing assets and efforts to 

an agricultural venture Lin never intended to support. According to Lin, plaintiffs 

pursued an ultimately unsuccessful business opportunity with funds borrowed from Lin at 

their own risk. The jury believed plaintiffs to the tune of $1,853,000 in damages. The 

court granted a new trial on the question of damages, but allowed the fraud liability 

findings to stay in place. Plaintiffs, Lin, and receiver Patrick Bulmer (who was appointed 

in the immediate aftermath of the jury’s verdict but whose order of appointment the court 

ultimately deemed void) appeal the judgment and various postjudgment orders. We 

affirm for the most part, reversing only the court’s order granting judgment 

notwithstanding the verdict (JNOV) as to Yang’s breach of contract cause of action.

FACTS

Given the jury’s findings, one document is conspicuous by its absence. 

There is no written agreement (or even a business plan) setting forth the obligations of 

the parties with regard to the agricultural business at the center of this case. Instead, the 

parties’ understandings concerning the nature of the farming operations on land owned by 

Lin are all based on oral conversations.
3

On the other hand, a promissory note and accompanying deed of trust are in 

the record. In the note, Avila promised to pay Lin $500,000 with interest from December 

12, 2008, “for value received.” In the deed of trust, Avila pledged as security for the 

promissory note a Chino, California real property (the Avila Property). In their 

testimony, the parties’ expressed differing views concerning the purpose and meaning of 

these documents. The jury found there was no loan. And as part of the judgment, the 

court quieted title in the name of Avila, declaring void and cancelling the Avila Property 

deed of trust. 

Yang Testimony

Although unmarried, Yang and Avila have lived together for 20 years and 

have two children together. In 2007, Yang’s family lived at the Avila Property. Yang 

worked as a licensed contractor, building koi ponds. 

Lin hired Yang to build a koi pond at Lin’s Hacienda Heights residence. 

After completing the job, Yang invited Lin to the Avila Property to see Yang’s personal 

koi pond and the fish therein. During this visit, Lin noted the large size of the lot and 

asked Yang why he did not develop the property by building multiple houses. 

In the summer of 2008, Lin invited Yang to his house and introduced Yang 

to Dong Shu, a farmer. Around September 2008, Lin again invited Yang to his house. 

This time, Lin explained he was in the midst of a dispute with a firm named Lucky Farm. 

Lin wanted Yang to partner with Lin and Shu to take over the farming operations at a 

property in Riverside County (the Farm). Lin owned the Farm, including 20 acres of 

greenhouses. Lin and Shu also wanted to rent additional acreage from another nearby 

landowner. 

Yang had no experience with farming, a fact he relayed to Lin. But Shu 

and Lin had farming knowledge. Lin said he wanted Yang to learn the business and

supervise the operation as a trusted representative of Lin (i.e., Lin’s “sidekick”). Lin 
4

could not travel to the farm on a daily basis because of health problems. Yang would 

“watch the books” and “make sure . . . Shu [did] the job.”

Yang would not be paid a salary. Instead, he would receive one third of the 

profits. Yang would have to quit his job to devote his time to the Farm. Lin proposed a 

five-year partnership. “In the beginning, [Lin] and . . . Shu was there and tell me there’s 

approximately $100,000 of profit every month.” Yang believed this representation, 

which motivated him to work at the Farm.

Despite reservations, Yang ultimately agreed to take on the job and began 

working at the “end of 2008.” He did so despite the absence of a written contract because 

of the trust he had in Lin, based on their shared Chinese culture and language. Yang 

never asked for a written contract. Instead, Yang relied on Lin’s oral representations. 

Lin, conversely, asked for a promissory note and deed of trust, which Avila 

provided in December 2008. But Lin did not actually loan Avila or Yang $500,000. Lin 

provided no money to either plaintiff. The documents were “for good faith to show 

security for partnership.” Both Lin and Yang convinced Avila over the course of weeks 

or months to sign the documents. Lin never mentioned the payment of money. Lin did, 

however, collect multiple undated checks all at the same time from plaintiffs (for 

$480,000 and smaller amounts). Lin said this was for tax purposes; Lin needed to show 

he could pay his property taxes. Lin insisted he would not cash the checks, which were 

just for show. Yang denied that checks he wrote payable to Lin were loan payments. It 

was Lin’s idea to write the word “interest” on some of these checks. Yang never had

$480,000 in his bank account. 

When Yang arrived at the Farm, it was in horrible shape. The soil on most 

of the acreage was too acidic to grow crops. The greenhouses were damaged. Weeds 

and garbage covered the land. Most of the plastic pipes were broken. There was no 

electrical power available from the utility company; the operation had to use a small 

generator. The mobile home lacked a permit. The garbage on the Farm and the 
5

unpermitted mobile home had triggered code enforcement actions by Riverside County 

authorities. Lin kicked Shu out of the partnership after five months based on allegations 

Shu was stealing. Yang believes Shu stole from the partnership. 

Despite these difficulties, Yang honored his commitment to the Farm. He 

quit his job. He expended his own funds to remedy problems and jumpstart the 

operation. Yang purchased farm equipment, including three tractors and various 

implements. Yang paid the agricultural workers. Yang paid rent on the additional 

acreage obtained from another landowner (other than Lin). After Shu’s departure, Yang 

had “no choice” but to start living at the Farm and managing all farming operations. Lin 

did not reimburse Yang for any of his costs. Lin did contribute some money to the 

enterprise (“[Yang] put some, and then [Lin] put some. [Lin did not] reimburse the 

whole thing”).

1

Yang grew various vegetable crops, including om choy, yam leaf, 

amaorose, garlic, and ton ho. These crops could earn varying amounts per harvested box, 

depending on the crop and time of year. Hypothetically speaking, based on the available 

greenhouses, Yang could have harvested approximately $180,000 worth of vegetables 

(gross) per month, about eight months per year.

2

 

 

1

On cross-examination Yang agreed that Lin provided “most of the money 

that financed this alleged partnership.” Yang did not find it “unusual” “that the person 

supplying all the money has no check-writing authority or access to any of the funds.” It 

is unclear whether Yang really meant to agree with these statements, as they seemingly 

conflict with the gist of his other testimony. It does not appear that the parties attempted 

to prove their respective assets in the summer of 2008 (i.e., prior to their agreement to 

start an agricultural business at the Farm). One productive method for getting at the truth 

in this case might have been to trace the expenditures at the Farm to preexisting asset 

sources (whether in the possession of plaintiffs or Lin). 

2

The court sustained an objection on the grounds of speculation to a question 

asking Yang whether there would have been profits at the farm absent Lin’s interference. 
6

Despite Yang’s best efforts and financial contributions, Yang was never 

paid any profits by Lin. In 2009, the Farm lost nearly $420,000 (bringing in more than 

$180,000 but spending nearly $600,000). This loss is perhaps partly explained by the 

large expenses to get the Farm started (e.g., the huge cleanup of garbage). 

In the summer of 2010, Yang and Lin argued about the Farm. Yang 

accused Lin of intending to use Yang to improve the Farm for purposes of selling it rather 

than to enter a profitable partnership. Lin replied that he did not want to partner anymore 

but would instead take plaintiffs’ house. Lin disclosed that he already had a plan and 

bank financing to build 11 houses on the Avila Property. Lin demanded that Avila sign 

the Avila Property over to Lin or Lin would cash the checks previously made out to him 

by Yang.

3

Lin also initiated foreclosure proceedings on the Avila Property. Plaintiffs 

filed a complaint with the San Bernardino County Office of the District Attorney. 

Lin served Yang with a three-day notice to pay rent or quit the Farm 

property, in which Lin claimed Yang owed $12,500 in rent. But Yang never had an 

agreement to lease the Farm from Lin. A trial court ultimately dismissed an unlawful

detainer action filed by Lin. But then someone locked the gates at the Farm and took the 

key from the water pump. Yang successfully obtained injunctive relief to allow him 

continued access to the Farm. But on December 15, 2010, someone bulldozed the 

irrigation pipes on the portion of the Farm used by Yang. Yang thought it was Dong 

Jiang, a new tenant at the Farm. Yang called the police. There was more than $6,000 in 

damages. After this incident, Yang did not continue farming efforts and crops valued at

approximately $90,000 died.4Jiang called Yang and warned him that Lin was trying to 

hire someone to kill Yang. 

 

3

When Lin tried to cash the checks (which when submitted had different 

typewritten dates), they were returned (marked “altered/fictitious”) by the bank.

4

The court sustained an objection on the grounds of speculation to a question 

asking Yang whether there would have been a profit had these crops not died. 
7

Testimony of Avila

Lin wanted Avila to sign the deed of trust; Avila did not read the document 

before signing it. Lin said not to worry about the document. Lin said, “This is 

something between us only. I will never touch your house.” Avila believed Lin. Avila 

did not discuss matters pertaining to the partnership between Yang and Lin. Avila signed 

the deed of trust because Yang and Lin “were going to be partners, and it was like a 

security.” Avila had no clear conception of what “security” meant in this context. Avila 

could not pay her bills, including the house payment, as a result of Yang’s lack of 

income. Avila’s attempt to modify her home loan failed because her lender stopped the 

modification process when it was discovered she had been accused of fraud in Lin’s 

cross-complaint.

Testimony of Jiang

In November 2010, Jiang entered an agreement with Lin with regard to the 

Farm. Jiang invested $800,000 to improve the land and was told he would be repaid this 

money plus a profit when Lin sold the land. 

At the time he tried to take possession of the Farm, Jiang knew there was a

dispute between Lin and Yang. Jiang refused Lin’s instructions to remove all of the 

vegetables from the greenhouses. Jiang destroyed two greenhouses before he realized 

there were growing crops within them. Jiang called police for help in kicking out Yang’s 

employees, as he was instructed to do by Lin. At Lin’s direction, Jiang broke the 

irrigation pipes. In late 2010, Lin asked Jiang to find someone to kill Yang. 

When the Farm was sold for $5 million, Lin did not pay Jiang anything, but 

simply locked up the Farm and kicked Jiang out. Lin relied on a lease he prepared 

(purportedly to show investors) to misrepresent the nature of his agreement with Jiang as 

one of landlord and tenant. 
8

Lin’s Testimony

Lin bought the Farm in 1989 for $360,000; he paid cash. There were no 

crops growing on the Farm. Lin began growing crops in 1997, but stopped in 2002 

because of kidney problems. Lin sold the Farm in 1994 (2004?) for $3.7 million but then 

reacquired the Farm in 2008 by foreclosing on the buyer.

5

 Lin agreed he met Yang as a 

result of a koi pond transaction, but denied he ever commented about the size of the Avila 

Property and the opportunity to develop it. 

By the time of the 2008 foreclosure, the 1994 (2004?) buyer had leased the 

farm to Shu. In 2008, Yang and Shu came over to Lin’s house uninvited with a proposal 

to continue farming the land. Yang and Shu were partners. Lin refused to lease to them.

6

Lin was old and wanted to sell the land. Lin told Shu he could stay on the Farm until 

December 2008 when the foreclosure would be completed. Shu was then forced out by 

Yang. Lin did not “participate in any matters within their company.” Lin denied he 

created a partnership with Yang and Shu. Lin denied that Yang ever had permission to 

use the Farm. 

Yang wanted to borrow money from Lin because Yang did not have 

sufficient funds to continue farming operations. Lin “said no because he did not have any 

credit unless he could give me something as collateral. Then I would think about it. I 

loaned him $130,000, but I did not want to give him more.” This money was gradually 

loaned to Yang beginning in August 2008 without any documentation. Each time Yang 

came back to Lin, Lin loaned Yang more money, and $480,000 in “principal” had been 

 

5

There is no explanation as to how Lin started then stopped growing crops 

on land he had already sold, but perhaps he actually sold the Farm in 2004.

6

In his September 2010 complaint for unlawful detainer against Yang, Lin 

verified under oath that Yang agreed to rent the Farm for $2,500 per month as a monthto-month tenancy. Lin testified at the unlawful detainer trial that he received four rent 

checks but two of them bounced. At this trial, Lin insisted the two valid checks were 

paid by Shu as rent according to his arrangement with the prior owner. 
9

provided to Yang at the time Avila signed the promissory note and deed of trust. Avila 

“volunteered” to sign the documents; Lin “warned her three times” about the 

consequences of nonpayment of the loan. Lin denied this was money paid into a farming 

partnership. Besides his own testimony, the note, and the deed of trust, Lin’s only 

evidence for these loans were the checks he received from Yang that were rejected by 

Yang’s bank.

7

Lin denied asking Jiang to force Yang off the Farm. Lin was not happy 

that Yang was still on the Farm,

8

but denied asking Jiang to close the gate or destroy the 

irrigation pipes. When Jiang said he planned to physically harm Yang, Lin told Jiang not 

to do it. 

Testimony of Vanessa Pappilli

Vanessa Pappilli, a real estate broker and close friend of Avila, testified that 

the Avila Property had a value of $320,000. Aurora Loan Services (Aurora) had a first 

deed of trust on the Avila Property securing a $400,000 loan. In July 2010, Pappilli 

attempted to modify this loan for Avila pursuant to a federal loan modification program. 

The modification could have resulted in substantial savings for Avila — an 18 percent 

principal reduction and a reduction in monthly payments. Avila did not qualify for the 

 

7

Again, it is inexplicable that no one attempted to trace the hundreds of 

thousands of dollars that were spent at the Farm from late 2008 to 2010. Did plaintiffs 

have money stashed away just waiting to be spent on a business opportunity? Did the 

money come from a bank loan procured by Yang? Was money transferred from Lin to 

Yang in late 2008? Yang claims it was, but he did not introduce documentary evidence 

other than the returned checks and the promissory note. The court rejected Yang’s lastminute effort to introduce additional checks that had not been produced in discovery, 

which purportedly showed funds transferred to Yang by Lin. The court found it 

incredible that Lin “emphatically testified last week that all he had was [the bounced] 

checks . . . . And then after a four-day recess, he shows up with documents.” 

8

“It was my property. I did not go to his home to plant any plants.” 
10

program because of the pendency of Lin’s cross-complaint accusing her of fraud. If 

Aurora conducted a foreclosure sale, Avila would likely face a deficiency judgment in the 

amount of $100,000 to $120,000. 

PROCEDURAL HISTORY

Plaintiffs’ operative complaint included causes of action (1) to quiet title to the Avila 

Property, and (2) for fraud and/or negligent misrepresentation. After the close of 

evidence, the court granted Yang’s oral motion to amend the pleadings to conform to 

proof, adding a breach of contract cause of action to his claims. 

Lin’s operative cross-complaint featured causes of action for (1) fraud, (2) 

conversion, and (3) unjust enrichment. The court also allowed Lin to amend his 

pleadings to conform to proof to add a breach of contract cause of action based on the 

promissory note for which the Avila Property served as security. But the court granted 

plaintiffs’ motion for directed verdict as to Lin’s fraud and conversion causes of action. 

The jury returned their verdict by way of special verdict forms on July 26, 

2012. With regard to Avila’s fraud claim, the jury found (1) Lin made an important false 

representation of fact to Avila; (2) Lin knew the representation was false or made the 

representation recklessly without regard for its truth; (3) Lin intended that Avila rely on 

his representation; (4) Avila reasonably relied on Lin’s representation; (5) Avila’s 

reliance was a substantial factor in causing her harm; and (6) her damages (based on 

“past economic loss”) were $200,000. The jury separately made the same findings with 

regard to Yang’s fraud claim. As for Yang’s fraud damages, the jury awarded $1.5 

million, comprise of $222,000 in past economic damages ($194,000 in lost earnings and 

$28,000 in medical expenses) and $1,278,000 in future economic damages ($1.2 million

in lost earnings, $35,000 in medical expenses, and $43,000 in other future economic 

loss). 
11

As to Yang’s breach of contract cause of action, the jury found (1) Yang 

and Lin entered a contract; (2) Yang did all or substantially all of what was required of 

him; (3) all the conditions required for Lin’s performance were met; (4) Lin did 

something the contract prohibited him from doing; (5) Yang was harmed by Lin’s failure 

to perform; and (6) Yang suffered damages in the amount of $216,000 (comprised of 

$6,000 in special damages, $120,000 in out-of-pocket costs, and $90,000 in damage to 

perennial crops). The jury rejected Lin’s cross-complaint for breach of contract, finding 

Lin and Yang

9

did not enter a contract. 

The same day the jury returned their verdict, the court granted plaintiffs’ ex 

parte application for a temporary restraining order, enjoining Lin from transferring any 

assets and freezing his bank accounts. The court also indicated it would grant plaintiffs’ 

ex parte request for the appointment of a receiver. 

On July 30, the court entered an order granting plaintiffs’ ex parte 

application for the appointment of a receiver. Also on July 30, the court entered 

judgment quieting title in favor or Avila and against Lin, finding as an equitable matter 

(with the advisory assistance of the jury’s verdict) that Lin had no claim to the Avila 

Property. The court declared Lin’s alleged deed of trust to be void and cancelled. 

On August 2, 2012, the court entered judgment on the special verdict. On 

its own motion, the court struck the award of $63,000 in medical expenses to Yang. As 

modified, the judgment included: (1) Avila’s fraud claim — $200,000 in damages to 

Avila and against Lin; (2) Yang’s fraud claim — $1,437,000 to Yang and against Lin; (3) 

Yang’s contract claim — $216,000 to Yang and against Lin; and (4) Lin’s contract 

claim — no recovery for Lin. The court totaled the recovery in the final paragraph of the 

judgment, ordering that Yang and Avila “have and recover from [Lin] damages in the 

sum of $1,853,000.00 . . . .”

 

9

Strangely, given that Avila’s name was on the promissory note and deed of 

trust, the special verdict form did not ask whether Lin and Avila entered into a contract. 
12

Lin substituted in new counsel on August 6, 2012, and a flurry of 

postjudgment motions followed in short order. On September 11, the court granted Lin’s 

motion to vacate the order appointing a receiver, which was deemed to be void ab initio, 

in part because the order did not require plaintiffs to provide an undertaking.

10

On 

September 24, the court deemed its temporary restraining order also to have been void ab 

initio. On October 9, the court denied Lin’s motion to vacate the judgment quieting title. 

On October 12, 2012, the court entered an order on Lin’s motions for 

judgment notwithstanding the verdict or, alternatively, for new trial. The court granted a 

new trial as to damages only with regard to both Avila’s and Yang’s fraud claims, 

concluding “that the evidence presented at trial was insufficient to justify the jury’s 

award.” As to Avila, the court noted that Pappilli’s testimony was the only evidence 

proffered to show damages suffered by Avila, but this evidence did not show how Avila 

suffered $200,000 in economic damages. As to Yang, the court noted the lack of 

evidence that the farm was ever profitable and the lack of evidence showing Yang lost 

earnings in his koi pond building business.

11

 

The court also granted Lin’s motion for judgment as a matter of law with 

regard to Yang’s breach of contract cause of action. The court denied, however, Lin’s 

motions for judgment as a matter of law as to the fraud causes of action.

 

10 Despite being warned by Lin’s new counsel that the order appointing him 

was defective, the receiver promptly recovered from Lin and deposited in his own 

account more than $23,000. The receiver then paid himself approximately $9,000 for 

services provided, leaving $12,613.78 in the account. The receiver did not deduct $2,000 

of his fees and costs out of the recovery because this amount had been paid in advance by 

plaintiffs’ counsel, without the approval of the court. 

11 The court commented at the hearing, “[W]hen I looked at the verdict, the 

verdict’s a mess and that’s why I’m granting a new trial on the damages because it’s just 

not right.” “I don’t know how the jury came up with that.” 
13

At an October 29, 2012 hearing, the court ordered the receiver to turn over 

all assets he had collected (but not returned) to Lin. The court denied plaintiffs’ oral 

motion to hold this money in a court account. 

DISCUSSION

Lin appeals, claiming the court should have entered judgment as a matter of 

law in his favor on plaintiffs’ fraud claims. Plaintiffs appeal, claiming the court should 

not have granted any of Lin’s posttrial motions attacking the judgment. And the receiver 

appeals the court’s order deeming his initial appointment order void. 

The Court Had Jurisdiction to Rule on Lin’s Motion for New Trial/JNOV

As an initial matter, plaintiffs claim the court lacked jurisdiction under the 

Code of Civil Procedure

12

to issue its order granting in part Lin’s motion for judgment 

notwithstanding the verdict and motion for a new trial. “Section 629 provides that the 

court must rule on a JNOV motion by the last date upon which it has the power to rule on 

a new trial motion. Section 660 sets forth three triggering events for the 60-day 

jurisdictional requirement under which a court must rule on a new trial motion. The 60-

day period commences upon the earliest of three events: (1) when the clerk of the court, 

pursuant to court order, mails notice of entry of judgment; (2) when any party serves 

written notice of entry of judgment on the moving party; or (3) if no such notice has been 

previously given, upon the filing of the first notice of intention to move for a new trial.” 

(Pratt v. Vencor, Inc. (2003) 105 Cal.App.4th 905, 909.) These “time limits are 

mandatory and jurisdictional, ‘and an order made after the 60-day period purporting to 

 

12

All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
14

rule on a motion for a new trial is in excess of the court’s jurisdiction and void.’” (Green 

v. Laibco, LLC (2011) 192 Cal.App.4th 441, 447.)

Judgment quieting title was entered July 30, 2012. A separate judgment 

was entered on the special verdict on August 2. The clerk of the court did not mail the

notice of entry of judgment to the parties with regard to the entry of either document. Lin 

filed his notice of intention to move for a new trial on August 16. The court issued its 

initial ruling (via a conclusory minute order) on October 9 and amended this ruling on 

October 12 with its final order (a four-page document explaining the grounds upon which 

the court granted the motion). Clearly, if the 60-day time limit began running August 16, 

the court’s order was timely because the October 12 order came 57 days after Lin filed 

his notice of intention to move for a new trial.

But plaintiffs claim they served Lin’s trial counsel, Mason Yost, with a filestamped copy of the judgment by mail on August 6, 2012. Plaintiffs conclude the court’s 

60-day jurisdictional time limit to rule on Lin’s motion expired on October 5. (See 

Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1267-1268 [copy of file-stamped 

judgment served by party satisfies requirement of serving notice of entry of judgment]; 

Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 

Cal.App.4th 1042, 1047-1049 [service by mail does not extend 60-day jurisdictional 

limit].) In support of this assertion, plaintiffs cite (1) an August 6 proof of service

referencing the judgment (which was filed with plaintiffs’ motion for reconsideration of 

the court’s order granting a partial new trial and partial JNOV), and (2) a declaration

(filed with plaintiffs’ reply papers in connection with their motion for reconsideration) 

executed by a paralegal working for plaintiffs’ counsel, who claimed in the declaration 

that he served the file-stamped judgment on August 6.

13

 

13

Contrary to the advice of our Supreme Court, plaintiffs did not promptly 

file a copy of the notice of entry of judgment with a proof of service. “Counsel who has 

served notice of entry of judgment should thereafter promptly file a copy of the served 
15

Lin counters that he was never properly served with the notice of entry of 

judgment. On August 3 (a Friday), Lin retained Squire Sanders as new counsel; attorney 

Jeffrey Renzi left a phone message with plaintiffs’ counsel, R.M. Anthony Cosio, 

informing him of that fact. At 9:50 a.m. on Monday, August 6, attorney Christopher 

Petersen e-mailed Cosio; this e-mail informed Cosio that “substitutions of counsel will be 

filed” that morning. Later the same day, Squire Sanders filed a substitution of attorney 

form with the court and faxed a file-stamped copy of the substitution of attorney form to 

plaintiff’s counsel at 3:38 p.m. Nothing in the record suggests plaintiffs ever served a 

notice of entry of judgment on Squire Sanders, Lin’s counsel of record, even though 

plaintiffs had received written notice of the substitution of counsel on August 6.

Sherman v. Panno (1954) 129 Cal.App.2d 375 (Sherman) is nearly

identical to the instant case. In Sherman, however, the defendant served a copy of the 

substitution of counsel by United States mail (rather than immediately transmitting notice 

of substitution of counsel the day it was filed). (Id. at p. 377.) Thus, the notice of 

substitution of counsel “had not been received, and in the regular course of the mail it 

 

document together with a proof of service. Although not statutorily required, the act of 

filing those documents ensures that the date on which the notice of entry was served, 

thereby triggering the statutory periods for making and determining posttrial motions, 

appears of record in the superior court file.” (Palmer v. GTE California, Inc., supra, 30 

Cal.4th at pp. 1279-1280.) Thus, when the court inquired at an October 12 hearing as to 

when its jurisdiction ran out, the clerk “could not find” a notice of entry of judgment 

served by a party “anywhere.” A copy of the file-stamped judgment with attached proof 

of service was only filed by plaintiffs after the court ruled on the motions for new trial 

and JNOV.

In a declaration submitted in opposition to plaintiffs’ motion for 

reconsideration of the court’s postjudgment rulings, Yost denied that he ever received a 

mailed copy of the file-stamped judgment. Instead, Yost received only a faxed copy (with 

no proof of service attached) from plaintiffs’ law firm on the afternoon of August 6, 

2012. (See § 1013, subd. (e) [“Service by facsimile transmission shall be permitted only 

where the parties agree and a written confirmation of that agreement is made”].) Yost’s 

office maintains a regular practice of logging every document received by any method, 

and his records do not disclose receipt of the file-stamped judgment, other than the copy 

received by fax. 
16

could not have been received, by plaintiffs’ counsel prior to the mailing of the notice of 

entry of judgment.” (Id. at p. 379.) Because service of the notice of entry of judgment 

was complete at the time of mailing and because plaintiffs were obligated to serve 

counsel of record,

14

the 60-day time limit began on the date plaintiffs served the notice of 

entry of judgment (even though, by the time it arrived at its destination, the recipient no 

longer represented defendant). (Id. at pp. 378-380.) According to plaintiffs, Sherman

compels the conclusion that the court lacked jurisdiction to rule on Lin’s motion.

Lin distinguishes Sherman on the grounds that Squire Sanders repeatedly 

provided notice to Cosio of their substitution into the case, both before (by phone 

message on August 3) and on August 6 (by e-mail and fax), including a faxed copy of a 

file-stamped substitution of counsel form. We agree with the distinction offered by Lin. 

As stated in Sherman, “plaintiffs’ attorneys were bound by law to recognize defendants’

former attorney of record until they received written notice of a substitution of attorneys.” 

(Sherman, supra, 129 Cal.App.2d at p. 379.) It is certainly true that service by fax is not 

generally permitted absent written agreement of the parties. (§ 1013, subd. (e).) But for 

purposes of establishing the jurisdictional, 60-day new trial motion limit, the better rule is 

to deem written notice and receipt of substitution of counsel by fax (or e-mail) sufficient 

 

14 “[I]n all cases where a party has an attorney in the action or proceeding, the 

service of papers, when required, must be upon the attorney . . . .” (§ 1015.) “A client 

may of course discharge his attorney at any time [citation], but during the course of a 

proceeding service of papers on the attorney of record . . . binds the client until the 

attorney is discharged or substituted out of the case in the manner provided by law.” 

(Reynolds v. Reynolds (1943) 21 Cal.2d 580, 584.) “The attorney in an action . . . may be 

changed at any time before or after judgment . . . . [¶] 1. Upon the consent of both client 

and attorney, filed with the clerk, or entered upon the minutes.” (§ 284.) “When an 

attorney is changed . . . written notice of the change and of the substitution of a new 

attorney . . . must be given to the adverse party. Until then he must recognize the former 

attorney.” (§ 285.)
17

to trigger the recipient’s obligation to serve the new counsel rather than (or in addition to)

the former attorney of record.

15

Court Correctly Denied Lin’s Motion to Enter a Defense Judgment in His Favor

Lin contends there is insufficient evidence to support the jury’s findings of 

fraud and that he was therefore entitled to judgment as a matter of law with regard to 

plaintiffs’ complaint. “On appeal from the denial of a motion for judgment 

notwithstanding the verdict, we determine whether there is any substantial evidence, 

contradicted or uncontradicted, supporting the jury’s verdict. [Citations.] If there is, we 

must affirm the denial of the motion. [Citations.] If the appeal . . . raises purely legal 

questions, however, our review is de novo.” (Wolf v. Walt Disney Pictures & Television

(2008) 162 Cal.App.4th 1107, 1138.)

Lin first argues that plaintiffs’ trial testimony established Avila knew about 

the risks of signing the deed of trust and carefully considered the risks for an extended 

period of time. Lin concludes Avila cannot therefore claim to have relied on Lin’s 

alleged reassurances at the signing of the deed of trust. This argument ignores the

context of Lin’s assurances. The jury was entitled to believe Lin lied about his intentions 

 

15

Even if this analysis is incorrect, we would not rule in favor of plaintiffs on 

this point. There is a serious question as to whether proper service of the notice of entry 

of judgment was ever provided to Yost, even assuming it was proper to serve Yost on 

August 6, 2012. The court did not actually rule on the factual question of whether Yost 

was served. However, the court would have been justified in finding that Yost was not 

served given the irregularities identified by Lin.

In addition, even if we were to conclude the court lacked jurisdiction to 

grant Lin’s posttrial motions, it would not affect the substantial rights of the parties in this 

appeal. As it stands, we defer to the court’s exercise of discretion in granting a new trial 

as to damages. But even if we were to decide the issues presented without deference to 

the court’s rulings, we would reach the same result because of the lack of sufficient 

evidence supporting the jury’s damage awards as discussed below. 
18

to support an agricultural venture with Yang, and that the need for “security” was not for 

his own benefit but rather to impress third parties.

Lin next argues the statute of frauds should preclude plaintiffs’ claims. 

(See Civ. Code, § 1624; Sterling v. Taylor (2007) 40 Cal.4th 757, 765-776.) While 

appellate counsel makes a compelling argument that the statute of frauds would have 

raised serious difficulties for at least some of plaintiffs’ claims, this defense was not 

argued at trial. “The statute of frauds is treated as a rule of evidence which, if not 

properly raised, may be forfeited.” (Secrest v. Security National Mortgage Loan Trust 

2002-2 (2008) 167 Cal.App.4th 544, 551.) Simply pleading the statute of frauds as an 

affirmative defense is insufficient to preserve the issue on appeal after a jury trial; a 

defendant must pursue the statute of frauds defense at trial and object to the presentation 

of evidence violating the statute of frauds. (Howard v. Adams (1940) 16 Cal.2d 

253, 257-258.) Lin, in his reply brief, does not respond to plaintiffs’ assertion of 

forfeiture. Lin forfeited any contention that the statute of frauds entitles him to judgment 

as a matter of law.

Lin’s final argument, as described in a separate heading, is that Avila’s 

quiet title claim cannot be sustained on the grounds of promissory estoppel. To the extent 

this section is merely a further attempt to disprove the applicability of an exception to the 

statute of frauds, we reject Lin’s argument for the reasons already stated. Lin did not rely 

on the statute of frauds at trial. Thus, neither Avila nor Yang had reason to argue 

promissory estoppel as an exception to the statute.

Within Lin’s final heading, it appears he also wishes to argue there was 

insufficient evidence to support a judgment in this case based on promissory fraud (at 

least with regard to Avila). “[P]romissory fraud is not easily established. Proof of intent 

not to perform is required. It is insufficient to show an unkept but honest promise, or 

mere subsequent failure of performance.” (Riverisland Cold Storage, Inc. v. FresnoMadera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183.) Here, of course, there 
19

was evidence of more than nonperformance, particularly given that it is artificial to 

separate the fraud committed upon Yang from the fraud committed upon Avila. Lin 

represented that the Farm could produce $100,000 in profits per month when he must 

have been aware of its dreadful condition. Lin destroyed Yang’s crops. Lin acted 

counter to promises concerning what he would and would not do. Lin created a false 

documentary record (including the checks he later filled in and claimed were both rent 

payments and loan payments). Lin changed his story under penalty of perjury concerning 

the nature of his relationship with Yang. Lin had a record of unorthodox business 

arrangements at the Farm in which he always came out ahead. There is sufficient 

evidence in the record to conclude that Lin committed promissory fraud with regard to 

the prospect of a five year business venture at the Farm and the concomitant promise to 

not actually foreclose on the Avila Property. “When fraud is proven, it cannot be 

maintained that the parties freely entered into an agreement reflecting a meeting of the 

minds.” (Id. at p. 1182.)

Grant of New Trial as to Yang’s Damages from Lin’s Fraud

“A new trial shall not be granted upon the ground of insufficiency of the 

evidence to justify the verdict or other decision, nor upon the ground of excessive or 

inadequate damages, unless after weighing the evidence the court is convinced from the 

entire record, including reasonable inferences therefrom, that the court or jury clearly 

should have reached a different verdict or decision.” (§ 657.) “‘A trial court has broad 

discretion in ruling on a new trial motion, and the court’s exercise of discretion is 

accorded great deference on appeal.’” (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 

119.)

Fraud damages consist of “the amount which will compensate for all of the 

detriment proximately caused thereby, whether it could have been anticipated or not.” 

(Civ. Code, § 3333; see Lazar v. Superior Court (1996) 12 Cal.4th 631, 649.) 
20

“[D]amages which are speculative, remote, imaginary, contingent or merely possible 

cannot serve as a legal basis for recovery.” (Mozzetti v. City of Brisbane (1977) 67 

Cal.App.3d 565, 577.)

It is unclear precisely what the jury intended and relied on when it awarded 

Yang $1.5 million in the special verdict on fraud.

16

 Regardless of the jury’s specific 

thought process, there are two fundamental problems with the award. 

First, the jury awarded $1.2 million in future lost economic earnings, 

presumably based on Yang’s testimony about the value of crops destroyed by Jiang and 

the potential future value of crops grown at the Farm had Lin honored his commitment to 

the agricultural venture for five years.

17

 But there is no substantial evidence that the 

farming business could ever have been profitable. The supposed $100,000 in monthly 

profits had already proved to be a mirage by late 2010. The court properly refused to 

allow Yang to testify (i.e., speculate) about whether he would have turned a profit on the 

crops destroyed by Jiang and whether the partnership could have been profitable in the 

future. (See generally Sargon Enterprises, Inc. v. University of Southern California

(2012) 55 Cal.4th 747, 776-781 [affirming trial court’s gatekeeper role in excluding 

speculative lost profits testimony].) The only evidence in the record regarding 

profitability shows the venture lost approximately $420,000 in its first year of operation. 

 

16 Plaintiffs take no issue with the court’s postverdict removal of medical 

expense damages from the judgment. This issue did not play a role in the grant of a new 

trial on damages because the medical expenses were already eliminated before judgment 

was entered. 

17 As plaintiffs state in their brief, the $1.2 million “is consistent with the 

evidence produced as [to] the annual crop yields.” There was no evidence in the record 

pertaining to Yang’s earnings as a koi pond contractor. Thus, any award based on the 

fact that Yang abandoned his existing career to pursue the partnership would be entirely 

speculative. One guess as to what the jury actually did to come up with $1.2 million in 

future lost earnings is the following calculation: $33,333.33 (Yang’s one-third share of 

the projected $100,000 monthly profit) multiplied by 12 (months per year) multiplied by 

three (remaining years in five-year commitment provided by Lin) equals $1,199,999.80.
21

The lack of “a profit at the time [of fraud] does not of itself prevent recovery of damages 

for loss of profit so long as there is an evidentiary basis establishing that the loss period 

was a foundation for profitable operation.” (Dean W. Knight & Sons, Inc. v. First 

Western Bank & Trust Co. (1978) 84 Cal.App.3d 560, 568.) Here, there was no 

evidentiary basis to conclude Yang could have turned things around with adequate 

support from Lin. (Cf. Nelson v. Reisner (1958) 51 Cal.2d 161, 171 [“Various witnesses 

testified to the profits made by them per acre for the same crops during the years under 

consideration”].)

Second, even if there were substantial evidence to support a lost profits 

award (which there is not), Yang sought and it appears the jury awarded a double 

recovery. “To award the plaintiff not only lost profit but also the cost of producing the 

profit causes a double recovery.” (Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 

149.) Yang faced a difficult task in seeking to recover lost profits in connection with a

new business that lost money in its first year of operations. Yang was on firmer ground 

in seeking recovery of more than $400,000 he claims he spent in reliance on Lin’s 

representations (e.g., the cleanup costs, the purchase of tractors, the payment of rent to 

the adjoining landowner, the payment of employee salaries).

18

Had Yang actually 

introduced evidence of the income he lost by quitting his koi pond job, his lost income 

also could have served as a basis for recovery. But, absent additional evidence that

Yang’s contributions to the agricultural venture should have been paid by Lin rather than 

Yang, these expenses cannot be recovered as damages alongside a lost profits recovery. 

If a plaintiff seeks to recover lost profits, he cannot simultaneously recover necessary 

expenses incurred to establish the basis for a profitable business.

 

18

We once again note that the record is unclear as to where all of this money 

came from. Clearly, the jury rejected the notion that it was loaned by Lin to Yang. But 

even Yang’s testimony suggested that Lin contributed money to the venture. Taking 

Yang at his word that this was intended to be a partnership or joint venture of some kind, 

Yang cannot have been damaged by spending money contributed by Lin to the business. 
22

It is unnecessary to dig deeper into the details of the jury’s award, as this 

brief analysis makes clear that the court was within its discretion when it granted a new 

trial on Yang’s fraud damages. We reject, however, Lin’s contentions that partnership 

law limits Lin’s ability to seek fraud damages. The jury’s findings suggest this was not a 

case about a failed business partnership, in which each partner must live with his or her 

losses. Instead, Lin defrauded Yang into thinking Lin would participate in good faith 

with Yang in an agricultural venture, when the arrangement was really a means for Lin to 

take advantage of Yang’s assets and efforts for his own enrichment (i.e., the improvement 

of the Farm and the chance to foreclose on the Avila Property).

19

Grant of New Trial as to Avila’s Damages from Lin’s Fraud

The court likewise was within its discretion when it concluded the jury’s 

award of $200,000 in damages (i.e., past economic loss) to Avila was not supported by 

sufficient evidence.

Avila defends these damages as supported by her testimony and that of 

Pappilli. In the absence of Lin’s cross-complaint, Avila allegedly could have obtained an 

18 percent principal reduction of her $400,000 home loan (i.e., $72,000). Moreover, 

Avila would face a deficiency of $100,000 to $120,000 if her home were foreclosed on 

and sold at auction. These numbers roughly equal $200,000. But one problem with this 

theory of damages is that it is not causally linked to Lin’s fraud but rather to Lin’s 

exercise of his right to seek redress in the courts. (See Civ. Code, § 47, subd. (b)(2) 

 

19

Lin points out in his appellate briefs that if his plan all along was to obtain 

the Avila Property by foreclosure, it was a foolish plan because there was a first trust 

deed on the Avila Property. Maybe so. But while the infeasibility of a fraudulent scheme 

may bear on the likelihood that there really was such a scheme, it does not mean that the 

jury could not find that the scheme existed. Moreover, Lin does not deny that the Farm 

was improved through Yang’s efforts or that he ultimately sold the Farm for a significant 

amount of money.
23

[litigation privilege].) Furthermore, this evidence is speculative and contingent in that 

there is no evidence from the bank that Papilli’s conclusions were accurate; the record 

does not provide a firm basis for concluding that the modification was a done deal but for 

Lin’s cross-complaint (e.g., did Avila and Yang have income to make the modification 

work) or that there actually would be a deficiency judgment (e.g., was it a purchase 

money loan, and would the bank conduct a nonjudicial or judicial foreclosure). It also 

appears that Avila’s alleged damages may be based on double (or triple) counting of 

harm, in that she had trouble paying her mortgage because Yang had no income. 

Relatedly, there are standing considerations, in that Avila is not necessarily the proper 

party to seek recovery of Yang’s lost income. We decline to speculate as to what 

possible theory of damages Avila may be entitled to pursue at retrial. It is enough to 

observe that there is no substantial evidence supporting the jury’s award of $200,000.

JNOV on Yang’s Breach of Contract Cause of Action

A JNOV motion “may be granted only if it appears from the evidence, 

viewed in the light most favorable to the party securing the verdict, that there is no 

substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 

Cal.4th 62, 68.) It is unclear why the court granted the JNOV motion with regard to 

Yang’s breach of contract cause of action (as opposed to merely granting a new trial on 

damages). Regardless, we review de novo the court’s order granting JNOV on Yang’s 

breach of contract cause of action. (Oakland Raiders v. Oakland-Alameda County 

Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1194.)

Yang argues in his opening brief that the court erred by granting this 

motion because the same facts supporting his fraud cause of action also support a breach 

of contract cause of action. We agree. There is substantial evidence supporting the 

following story: Yang and Lin agreed to pool their resources and efforts for five years to 
24

build an agricultural business; Yang performed; Lin did not perform; and Yang suffered 

damages.

20

Like the fraud causes of action, the breach of contract damages awarded by 

the jury ($216,000) suggest Yang may have obtained a double (or perhaps triple) 

recovery. There is certainly overlap in the measure of contract and fraud damages (see 

Civ. Code, §§ 3300, 3333), creating the danger that even if Yang settles on a coherent

theory of damages, he could double count by asking the jury to conduct their damages 

inquiries on separate verdict forms for fraud and contract. (See CACI Nos. 3934, VF3920 [instruction and verdict form designed to avoid this result].) Cautioning the court 

and parties to avoid the recovery of inconsistent damages or a double recovery by way of 

separate causes of action on retrial, we reverse the court’s order granting JNOV and

remand with instructions that the breach of contract cause of action should also be subject 

to a new trial on damages. 

Receiver’s Contentions

Finally, the receiver appeals the court’s orders vacating the receivership and 

denying the receiver’s subsequent motion for reconsideration. These orders turn on legal 

analysis, and we shall therefore exercise independent review.

The court cited two grounds for vacating the receivership as void ab initio: 

(1) a bond was not posted even though plaintiffs applied ex parte for appointment of a 

receiver; and (2) the receiver appointed in the order was not the same one identified in the 

ex parte application. The court’s subsequent order requiring the receiver to return the 

assets (which the receiver had not yet done despite the court’s earlier order deeming his 

 

20

Lin does not specifically respond to this issue in his briefs. To the extent it 

is addressed by Lin, it is tied to his assertions that (1) no contract could be proven 

because of the statute of frauds, and (2) the damages sought by Yang would not be 

cognizable were the arrangement between Lin and Yang a true partnership. As 

previously stated, we reject these arguments.
25

appointment void) logically followed. At the later hearing, the court found fault with the 

receiver accepting an advance payment from plaintiffs’ counsel without seeking court

approval. 

The receiver acknowledges in his appellate brief that “plaintiffs’ counsel 

took broad liberties in drafting the [12-page] receivership order to include many 

provisions not approved nor anticipated by the Court, and that the Court may not have 

made any substantial review of the terms of the proposed order before signing it. [¶] 

Examples include omitting a provision for an applicant’s bond in the Order when 

plaintiffs offered to post a $500,000.00 bond [citation] [in their written ex parte 

application] and substitution of Bulmer’s name as receiver when plaintiffs originally 

nominated Receivership Specialists of Los Angeles [citation]. [¶] It is easy to see why 

the trial court expressed such disapproval during the . . . hearing [citation]. Bulmer is 

likewise perturbed by the omissions and misrepresentations made by plaintiffs and their 

counsel in procuring his appointment and acceptance as receiver.”

Nonetheless, the receiver claims the court erred in deeming the order 

appointing him void rather than voidable. Relatedly, the receiver contends the court 

erred in refusing to properly discharge the receiver (rather than simply deeming the 

appointment void). (See Cal. Rules of Court, rule 3.1184 [requiring receiver to present, 

among other things, final account and report, request for discharge, and final claim for 

compensation for receiver’s services].) The receiver claims the court’s failure to properly 

discharge him has not only prejudiced him in terms of potentially recovering his fees, but 

also led to him being forced to defend (without court-approved counsel and a means to 

pay for such counsel out of funds provided for by one or more of the parties in this case) 

a November 5, 2012 lawsuit (Yuey v. Bulmer (Super. Ct. L.A. County, 2013, No. 

BC495200)) filed by Lin and his wife in the Los Angeles Superior Court for abuse of 

process, conversion, infliction of emotional distress, invasion of privacy, and money had 
26

and received (Los Angeles Action) based on the receiver’s conduct in connection with his 

appointment in the instant case.

21

We turn first to the question of whether the order appointing the receiver 

was void. “If a receiver is appointed upon an ex parte application, the court, before 

making the order, must require from the applicant an undertaking in an amount to be 

fixed by the court, to the effect that the applicant will pay to the defendant all damages 

the defendant may sustain by reason of the appointment of the receiver and the entry by 

the receiver upon the duties, in case the applicant shall have procured the appointment 

wrongfully, maliciously, or without sufficient cause.” (§ 566, subd. (b), italics added.) 

It is black letter law that an order appointing a receiver upon an ex parte 

application without the required undertaking is void. (See, e.g., Sweins v. Superior Court

(1936) 16 Cal.App.2d 336; Van Alen v. Superior Court (1918) 37 Cal.App. 696, 696-697; 

Bibby v. Dieter (1910) 15 Cal.App. 45, 48; see also Ahart, Cal. Practice Guide: 

Enforcing Judgments and Debts (The Rutter Group 2014) ¶ 4:901.1, p. 4-169 [citing 

Sweins for unequivocal proposition that “ex parte order that fails to require the applicant

to post bond is void”]; 11 Miller & Starr, Cal. Real Estate (3d ed. 2009) § 33.7, p. 33-15 

[“Unless an undertaking is filed, the ex parte appointment of the receiver is void”].)

The receiver claims the order was not void but rather was voidable. The 

receiver points out that the ex parte application here came only after a trial on the merits; 

thus, this case is not like one in which a receiver was appointed early in the case without 

the benefit of a fair evidentiary hearing. (See, e.g., Davila v. Heath (1910) 13 Cal.App. 

370, 371-373 [order appointing receiver four days after complaint filed].) The receiver 

also asserts the meaning of “ex parte” has changed through the years, so that older cases 

 

21 We grant the receiver’s request to take judicial notice of the Los Angeles 

Action and various documents filed therein. Lin and his wife dismissed the Los Angeles 

Action with prejudice on March 6, 2013. That same day, Bulmer withdrew his special 

motion to strike the complaint in the Los Angeles Action. 
27

applying section 566, subdivision (b), did not necessarily contemplate our modern ex 

parte procedure.

22

Here, the court had personal jurisdiction over Lin and subject matter 

jurisdiction over the parties’ dispute and the enforcement of the impending judgment 

against Lin. (See Baron v. Fire Ins. Exchange (2007) 154 Cal.App.4th 1184, 1193 & fn. 

7 [improper order allowing appointment of receiver by arbitrator upon parties’ stipulation 

was voidable not void, and issue could therefore be forfeited by the third party’s failure to 

raise the issue at the trial court level].) By the receiver’s reckoning, the court committed 

error but did not exceed the bounds of its fundamental jurisdiction.

We reject the receiver’s invitation to upset the clear rule governing this 

issue. As mandated by section 566, subdivision (b), parties must be protected against the 

unfair imposition of a receiver.

23

 The return of a jury verdict does not equate to a final 

enforceable judgment. Unwarranted harm may be done by a receiver, including the 

disruption of a party’s personal life and business interests. The requirement of an 

undertaking mitigates the potential harm that might be done while the imposed upon 

party seeks to challenge the ex parte appointment. The receiver should have been wellaware of the rule requiring an applicant’s undertaking as a necessary prerequisite to his 

appointment on an ex parte basis. He must now bear the consequences, whatever they 

may be, of exercising authority pursuant to a void order. The court did not commit error 

in deeming void the order appointing the receiver and ordering the receiver to return the 

 

22

One answer to this point is that plaintiffs did not follow modern ex parte 

procedure (Cal. Rules of Court, rule 3.1203); plaintiffs simply sprung the motion upon 

Lin while on the record at trial, even though the papers had already been filed with the 

court earlier in the day. 

23

And as suggested by the bills generated in the course of a few weeks by the 

receiver in this case, the imposition of a receiver is a costly proposition. (See City and 

County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 744 [“[T]he appointment 

of a receiver is a drastic remedy to be employed only in exceptional circumstances.” 

“‘[R]eceivers are often legal luxuries, frequently representing an extravagant cost’”].) 
28

collected funds to Lin, without provision for any of the receiver’s costs or attorney fees. 

We likewise summarily reject the receiver’s contention that the court erred by refusing 

the receiver’s request to hire counsel in his role as receiver.

DISPOSITION

We reverse the court’s order granting judgment notwithstanding the verdict 

on Yang’s breach of contract cause of action against Lin. We affirm the court’s order 

granting a new trial as to damages only with regard to both plaintiffs’ fraud causes of 

action, and instruct the court to also provide a new trial as to damages only with regard to 

Yang’s breach of contract cause of action. The court’s other postjudgment orders and the 

judgment, to the extent it quiets title in favor of Avila, are also affirmed. The receiver’s 

request for judicial notice is granted. In the interests of justice, the parties shall bear their 

own costs on appeal.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.