Writs & Receivers Judges Provide Personal Insights to the Application and Pleading Process
By Bronston, Edythe*
Many topics of particular interest to the receivership community were discussed by jurists from the LA Superior Court Writs and Receivers and Attachments Departments with members of the LA County Bar Association’s Provisional and Post-judgment Remedies Section at its December 2, 2004 semi-annual breakfast encounter at the Dorothy Chandler Pavilion. Judges Dzintra Janavs and David P. Yaffe and Commissioners Bruce Mitchell and Victor Greenberg provided valuable tips and guidance to the group, including:
Ex Parte Hearings: Movants who wish judges to devote more than a nominal amount of time to an ex parte hearing should come in on days when regularly noticed hearings are not held. For Dept. 85 (Judge Janavs) even numbered days are best for ex partes, while odd numbered days are best for regularly noticed motions. For Department 86 (Judge Yaffe) odd numbered days are best for ex partes, while even numbered days are best for regularly noticed motions.
Orders: All remedies sought must be set forth in both the order to show cause and the temporary restraining order. Judge Janavs commented that having them in only one document contravenes CRC 359 (c) (that sets out a form OSC and a TRO) and CRC 379 (that details explicit requirements for an ex parte application and order).
Evidence: Declarations regarding business records cannot just recite the conclusory language of Evidence Code Section 1271. A detailed description based upon the declarant’s personal knowledge of exactly what comprises the steps taken “in the ordinary course of business” and how it is that the declarant knows of the specific steps taken in the particular circumstances must be provided to the court. Commissioner Greenberg commented that judges often ignore the endless stream of evidentiary objections — usually made by junior associates who under questioning often cannot articulate a good reason for the objection. The jurists stressed that pertinent objections should not be buried in a sea of nonsense, where they likely will never be seen.
Bonds: Counsel seeking a receiver must present to the court an estimation, with evidence, of the rents or other revenue which will likely pass through the receivership estate.
Substance of Pleadings: The manner in which the judges review ex parte applications is instructive. Judge Yaffe stated he never reviews the facts set forth in the points and authorities. He first reviews the proposed order, then the supporting declarations. He looks at the points and authorities if there is a legal issue raised.
Judge Janavs has a different approach, first reviewing the complaint, then
the proposed order, then the supporting declarations. She also requests a
courtesy copy of all proposed orders so that she can make notations on her
Filing issues: LA Superior Court has lost 600 employees this year to budget cuts. Although the Clerk’s office insists that all documents are being timely scanned, counsel are advised not to depend on pleadings being timely delivered to the Department (or to be delivered at all). Judges Janavs and Yaffe and Commissioner Mitchell still want counsel to file directly in their Departments, 85, 86 and 59, respectively. Commissioners Mitchell and Greenberg strongly suggest that courtesy copies of the pleadings (stamped “Courtesy Copy”) always be delivered directly to Departments 59 and 66.
The PPJR Section plans its next “Breakfast With the Experts” for early