City of Pleasanton v. Spitzer CA1/3 ( 2014 )

Filed 5/1/14 City of Pleasanton v. Spitzer CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
CITY OF PLEASANTON,
Plaintiff and Respondent,
A141165
v.
THOMAS A. SPITZER et al., (Alameda County
Super. Ct. No. RG12642206)
Defendants and Appellants,
J. BENJAMIN MCGREW,
Respondent.
The City of Pleasanton petitioned for appointment of a receiver for a residence
owned by appellants Thomas A. Spitzer et al., alleging that the building had become
substandard and dangerous. The court appointed J. Benjamin McGrew as receiver to take
control of the property. Appellants are appealing from an order denying their motion to
discharge McGrew as receiver. McGrew has moved to dismiss the appeal on the ground
that the order is not appealable. We grant the motion.
The right to appeal from a trial court order is wholly statutory. (Barnes v. Litton
Systems, Inc. (1994) 28 Cal.App.4th 681, 683.) An order appointing a receiver is
appealable by statute (Code Civ. Proc., § 904.1, subd. (a)(7)), but it has long been settled
that a prejudgment order declining to discharge a receiver once appointed is not
appealable. “In the case at bar the appellant seeks to appeal from an order (made before
judgment) refusing to vacate a prior order appointing a receiver. An order appointing a
receiver is, since the amendment of 1897 to section 963 of the Code of Civil Procedure
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[currently Code Civ. Proc., § 904.1; see Stats. 1968, ch. 385, §§ 1, 2, pp. 811-813], the
subject of direct appeal. The statute does not, however, authorize an appeal from an
order refusing to vacate the appointment of a receiver. It would seem clear, therefore,
that the attempted appeal now under discussion does not come within the terms of the
statute and that, if the appellant has any right to a review of the order complained of, it
must be by means of an appeal from such final judgment as may hereafter be entered in
the action.” (Title Ins. & Trust Co. v. Calif. Development Co. (1911) 159 Cal. 484, 487.)
Since no judgment has been entered in this case, the challenged order is not appealable.
Appellants cite Raff v. Raff (1964) 61 Cal.2d 514, for a contrary conclusion, but
that case involved a post-judgment order. The Raff court allowed an appeal from an
order denying a motion to remove a receiver appointed to divide community property
after issuance of a judgment of dissolution. Post-judgment orders like the one in Raff are
appealable (Code Civ. Proc., § 904.1, subd. (a)(2)), prejudgment orders like the one
challenged here are not.
The appeal is dismissed.
_________________________
Siggins, J.
We concur:
_________________________
Pollak, Acting P.J.
_________________________
Jenkins, J.
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