The Receivership News is long overdue in publishing a Judicial Profile
about you and your career, particularly considering that you are kind of
like the Godfather of the California Receivers Forum.
JUDGE O’BRIEN: Well I don’t know about that,
but I do remember the Ad Hoc Committee that Judge Diane Wayne and I formed
in the early 1990’s to address various receivership issues. And I do
understand that the California Receivers Forum was the outgrowth of that
Committee. The main issues I recall from that era were that we dealt with
the need for a form Rents & Profits Order and the controversy over whether
there actually was an approved list of receivers floating around the Los
Angeles Superior Court.
RN: That was apparently in 1993, and
then in December of 1994 the Ad Hoc Committee reconvened to discuss
concerns about attempted lender control over receivers.
JUDGE O’BRIEN: Yes, that was being
discussed, and also everybody was talking about some potential legislation
or Court Rules regarding certification of receivers. I was for it and I
think Judge Wayne also thought it was a good idea. I can’t remember
whether legislation was ever drafted, but I do remember that some
receivers were adamantly against that approach. They just didn’t want the
regulation you know. Others I’m sure were more supportive of the idea.
RN: Interesting. There has never
really been any certification or other regular set of programs other than
by the Receiver’s Forum.
JUDGE O’BRIEN: Yes, but we did have rules.
We had a drafting committee. Not only did the Committee create the form
Rent and Profits Order, but I believe we also came up with the proposed
receivership rules to be included in the California Rules of Court. They
covered various issues, such as employment of counsel, no prior agreement
with the lender, etc.
RN: What were some of the issues with
receiverships before the Ad Hoc Committee, and the formation of the
California Receivers Forum?
JUDGE O’BRIEN: There were no specific
concerns, and, there was never any real problem with receivers per se, and
I don’t think the Court had an ax to grind or complaints. But receivers
were just an unorganized group that had a lot of business in the Court and
Judge Wayne and I were a little concerned whether we were efficiently
overseeing the receivers we were appointing. Were we giving them too much
control or taking it away or being too tough in certain areas? I think she
and I were the only Judges in Los Angeles County that sat in courtrooms
dedicated to dealing with receivers.
RN: What is your opinion of
separating out rents and profits from equity, construction and regulatory
receiverships, as was done in the downtown Courts for many years, when
Commissioners heard all the rents and profits cases?
JUDGE O’BRIEN: I know that some of the
Judges on the 8th floor liked the idea when it was done. But I thought it
should be all in one department, except for family law receiverships. Some
of the Judges over the years who served up there wanted to separate out
the rents and profits cases, because they were more cut and dried, and
perhaps easier to determine and to manage. When the Courts get very busy
in certain economic cycles, the Judges on the 8th floor are hearing equity
cases and very complex injunction cases, so it can be tough to also handle
a large flow of rents and profits cases that a commissioner is normally
handling. Although at this point, there are not many rents and profits
cases anymore; the volume is way down, particularly compared to the glut
of judicial foreclosure cases three of four years ago.
RN: You’ve seen a lot of developments
in the years you’ve been serving as a Judge. Seems like 20 or more of
those years have been primarily in Writs and Receivers departments, right?
JUDGE O’BRIEN: Very true. This is my 33rd
year serving as a judge. I served on the 8th floor in Writs and Receivers
for at least 12 years. Then, I retired in 2000, and did some pro-bono work
for the school district, I worked with a commission studying the toxic
contamination with Belmont High School they were going to build, so I
worked on that. Then I came back. Several times.
RN: What seems like it would be
difficult about receivership practice?
JUDGE O’BRIEN: Dealing with erratic,
uncooperative people on a one-to-one basis, rather in a formal setting. On
the other hand, it is valuable that the power of the Court is there to
back up decisions made by the receiver or to instruct the receiver. You’re
sort of neutral in the way that you are like a representative of the judge
and you get to try to make order out of chaos.
RN: How did it come about that you
‘un-retired’ and came back into the courtroom?
JUDGE O’BRIEN: The Supervising Judge just
said why don’t you come sit on assignment and I did. Of course, I had been
sitting on the 8th floor on and off, because of other Judges’ vacations
and things like that. So I have done at least several tours of duty, and I
enjoy it. I also enjoy working with the excellent set of Judges who hear
receivership cases -- Judges O’Donnell, Chalfant and Lavin are
experienced, smart, and do a great job on these cases.
RN: Now that you’ve seen the
receivership practice for so many years in the Court, what kind of changes
have you seen either in the type of practice or the quality of the
JUDGE O’BRIEN: Not a great deal. The
practice has always a very high quality presentation of receiverships, on
both sides, and that’s probably because of consistent and experienced
lawyers who have been around for many years. I don’t know many
inexperienced receivers or lawyers who represent receivers, but you get
the impression that it’s very close and experienced group in this area of
practice and everyone can rely on their communications and on the
information being presented. You get consistency in forms and how things
are done. Generally I find that professional conduct is the norm.
There is a necessary emphasis on the quality of the evidence presented.
Declarations must present admissible evidence – one thing I like to see is
when the lawyers realize that there is an evidentiary issue that may draw
an objection, so they deal with it up front, by addressing the hearsay
exception or other evidentiary basis on which they will rely. For example,
if the party making the motion needs the Court to look at some exhibits,
but before they file it they anticipate that the other side is going to
make an evidence objection, like an uncertified public document, deal with
it now, and avoid the delay or wheel-spinning that happens particularly if
the there is an oral objection later.
RN: Do you favor having receivers
come in an ex parte petition for instructions rather than waiting for a
hearing date for a noticed motion?
JUDGE O’BRIEN: I think ex parte procedures
can be valuable in that sense because you’re always concerned with the
receivership if something is going awry. If you let it go too long, it’s
may turn into a bigger mess. Maybe there are some external demands or
issues that require instant action by the receiver. Often the parties (not
so much the lawyers) get worked up over action being taken or not taken by
the receiver, and getting the Court involved can short-circuit both the
objections and the emotional responses that might otherwise overwhelm the
process. However, even if all parties have counsel, I would not be
amenable to setting up a conference call to try to resolve issues – the ex
parte procedure set forth in the Court Rules is the one to follow.
RN: Do you see receivers stepping into
litigation on behalf of the defendant over whom the receivership has been
granted and answering discovery or filing other lawsuits or acting to try
to protect the assets of the defendant. We see some lawyers do so, while
others focus on trying to get that action stayed because it’s interfering
with the receivership in this Court.
JUDGE O’BRIEN: I think that they should
always come to Court to get the Judge’s instruction as to what they should
do in that particular situation. Ironically, sometimes you find out when
they come to Court, and the facts come out, we find that the problem
entity or person involved in the other lawsuit is instigated by someone in
the receivership case. You find a hidden corporation that is 50% owned by
the principle in the receivership and they’re churning it to disrupt, at
least in my mind, the receivership. I’m talking about the receivership
entity, where the defendant has another entity, or two, or three, and
they’re so blind about the receivership and they are just attempting from
all sides to disrupt.\
That then may result in issues of contempt. When
the OSC re: contempt is heard, the Judge must evaluate whether certain
conduct is in violation of a specific Order. Sometimes those provisions
are a little too broad, and they can’t go forward with the contempt.
Contempt can be a whole trial and a waste of time in the sense of what you
could have accomplished. The people who are on the receiving end of the
contempt at some point realized ‘How did I get myself in this?’ and ‘I
could have paid some sanction and that would have satisfied everybody’.
RN: Do you feel the California
Receiver’s Forum has helped with the comfort level of approving and
authorizing a receivership?
JUDGE O’BRIEN: Certainly I think there’s a
tendency for someone new to this area of law to have that impression,
“Gee, a receiver? You’re taking over everything” but as the matter
develops, you then realize it’s a legitimate form of oversight of business
operations and that shouldn’t be looked at with too much fear once you
feel comfortable with the both the lawyers and the receiver. That’s why I
think it’s important to have an association that educates both lawyers and
receivers, and allows everybody to interact. With the meetings and
education programs, that shows to the judges and I think they get more
comfortable and they are not afraid to approve or set up a receivership
than if they are brand new. So the Receivers Forum is somewhat of a
stabilizing influence, particularly with someone like myself, that
operated before there was a forum and it was a little haphazard and
disorganized and you were looking everybody in the eye to see if you could
trust everybody and now you get more of a comfort level.
RN: More on the personal standpoint,
how have you enjoyed judging on an assignment basis rather than a
JUDGE O’BRIEN: I enjoyed both. Working on
assignment is very good. You’re almost your own boss in the sense that if
you have the time and they want you can come to work. Sometimes there are
gaps, which I appreciate, and which give me the chance to pursue hobbies,
among other things. Right now I’m sitting on assignment in Judge Joanne
O’Donnell’s department while she is sitting on the Court of Appeals.
RN: You’ve told me that you actually plan on
really retiring soon, how do you feel about that?
JUDGE O’BRIEN: Well, I say that every few
months. I don’t have an real retirement date just now. We’re going to be
great grandparents in January so everybody is looking forward to that. I
have two children, a daughter and a son, and two grandchildren. Now, we
have a great grandchild coming!
RN: Any words of wisdom or advice to
share for the receivership community?
JUDGE O’BRIEN: I enjoy the receiverships
and I enjoy all the people that come in. Whenever I see people I know, I
always enjoy that because I know it is going to be well briefed and a lot
of good discussion, I enjoy seeing that. Receiverships have been with me
for a long time, and I do think it is a worthwhile area of practice.
*Alan Mirman is a founding partner in
the law firm of Mirman, Bubman & Nahmias LLP, in Woodland Hills,
California. For more than thirty years, Mr. Mirman has specialized in
creditor's rights, real property law, business litigation, commercial and
financial institutions litigation and documentation.