Avila v. Lin CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 G049947
Appellants,
(Super. Ct. No. CIVRS 1010040)
v.
OPINION
MING TANG LIN,

Defendant, Cross-complainant and
Appellant.

PATRICK BULMER, as Receiver, etc.

Objector and Appellant.

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.
 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.

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 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

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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

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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
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whole thing”).
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
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(gross) per month, about eight months per year.

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.

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 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
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by Yang. 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
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approximately $90,000 died. Jiang 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.

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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.

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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
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reacquired the Farm in 2008 by foreclosing on the buyer. 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
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to continue farming the land. Yang and Shu were partners. Lin refused to lease to them.
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 month-
to-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.

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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
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Yang’s bank.
Lin denied asking Jiang to force Yang off the Farm. Lin was not happy
8
that Yang was still on the Farm, 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 last-
minute 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.”

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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).

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 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
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Lin and Yang 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 . . . .”
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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.

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 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,
10
in part because the order did not require plaintiffs to provide an undertaking. 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
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earnings in his koi pond building business.
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.
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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.”

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 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
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Code of Civil Procedure 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

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

13
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 file-
stamped 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
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that he served the file-stamped judgment on August 6.

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

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 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.

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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
14
counsel of record, 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

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“[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.)

16
to trigger the recipient’s obligation to serve the new counsel rather than (or in addition to)
15
the former attorney of record.

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.

17
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. Fresno-
Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183.) Here, of course, there

18
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.)

19
“[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
16
Yang $1.5 million in the special verdict on fraud. 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
17
the agricultural venture for five years. 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.

20
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
18
the adjoining landowner, the payment of employee salaries). 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.

21
 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
19
of the Farm and the chance to foreclose on the Avila Property).

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.

22
[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

23
build an agricultural business; Yang performed; Lin did not perform; and Yang suffered
20
damages.
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, VF-
3920 [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.

24
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

25
and received (Los Angeles Action) based on the receiver’s conduct in connection with his
21
appointment in the instant case.
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.

26
applying section 566, subdivision (b), did not necessarily contemplate our modern ex
22
parte procedure. 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
23
unfair imposition of a receiver. 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 well-
aware 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’”].)

27
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.

28