RN: 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 practitioners?

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 permanent basis?

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.