NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, Acting P. J.

INTRODUCTION

Appellant Richard Abramson Architects, Inc. (Abramson) appeals from a denial of its motion to file an action against respondent James Donell, a court appointed receiver (receiver) or to intervene in the action in which the receiver was appointed. In reversing, we hold that the trial court erred by not allowing Abramson the right to file an action against the receiver or intervening in the action in which the receiver was appointed.

BACKGROUND

In 2009, in an action entitled Chinatrust Bank (USA) v. Hacienda Lofts, LLC, a California limited liability company, et al., pursuant to a stipulation, the trial court appointed James H. Donell as receiver to take possession, custody and control of the assets of Hacienda Lofts, which assets secure the obligation of Hacienda Lofts, LLC (Hacienda Lofts) to Chinatrust Bank (USA) (Bank). Hacienda Lofts, the owner of the property, had been developing eight condominium units on the property. The receiver was to complete the project. The order provided that "no individual or entity may sue the Receiver without first obtaining permission of this Court."

Abramson had filed an action against Hacienda Lofts, and others, including the Bank for $59,364.34 and filed a mechanics lien on the property. Abramson apparently settled the case with the Bank and released the mechanics lien.

After the appointment of the receiver, Fred Maidenberg, a trustee, brought an action against Hacienda Lofts, Abramson, and others in connection with a claim involving lateral support provided by the property on which the condominium development was being constructed. That case was settled. The receiver, Maidenberg and another party settled, and a determination of a good faith settlement was obtained.

Abramson filed a motion for leave to file a complaint against the receiver or alternatively to intervene in the Chinatrust Bank (USA) v. Hacienda Lofts, LLC et al. case. Abramson alleged that he performed architectural services on the condominium project, he has a proprietary interest in the drawings used on the project, and the receiver is not authorized to use the drawings unless Abramson is paid $59,364.34 for their use. Abramson also alleged that under the contract he had with Hacienda, he is entitled to be indemnified for his expenses in connection with the claim brought by Maidenberg against him and others for damages caused by lack of lateral support. He asserted he never received notice of the good faith hearing in that case.

The receiver opposed the motion for leave to file the complaint or to intervene, arguing that Abramson already settled with the Bank and that whatever Abramson receives would, in effect, cause the Bank to pay twice because the assets in receivership are collateral for the debt paid the Bank. The receiver also argued that Abramson's claim for indemnity is moot because of a good faith settlement.

The trial court denied the motion. It found that there was no lack of notice of the proposed good faith settlement. Abramson filed a notice of appeal. The denial of the motion is an appealable order. (Jun v. Myers (2001) 88 Cal.App.4th 117, 121-123.) The receiver argues that the appeal should be dismissed because the opening brief was not served on the Bank.

DISCUSSION

A. Standard of Review

We review any finding of fact under the substantial evidence standard of review. Under the substantial evidence test, the appellate court shall defer to the trial court so long as "substantial evidence supports the conclusion of the trier of fact." (People v. Reilly (1970) 3 Cal.3d 421, 425. While applying the substantial evidence standard of review to the court's factual findings, we independently review its findings on legal issues. (Stryker v. Antelope Valley Community College Dist. (2002) 100 Cal.App.4th 324, 329.) To the extent the trial court exercised its discretion, we review that determination under the abuse of discretion standard of review. (See People v. Jordan (1986) 42 Cal.3d 308, 316.)

B. Appeal Not Dismissed

The receiver contends that the appeal should be dismissed because Abramson did not serve his opening brief on the Bank, a party in the proceeding. The Bank, however, did not file any opposition to the Abramson's motion in the trial court. Even if the brief should have been served, the appeal could only be dismissed, under our inherent authority, as to the Bank. (See Brooks v. Duskin (1958) 159 Cal.App.2d 629, 633; see also Cabana Nutria, Inc. v. The Way, Inc. (1958) 163 Cal.App.2d 485, 487; Palmer v. Holcomb (1956) 147 Cal.App.2d 94, 98-100.)

C. Abramson's Right to Sue

The court in Vitug v. Griffin (1989) 214 Cal.App.3d 488, 492-493 summarized as follows the law in connection with court permission to sue a receiver: "The rule requiring court permission to sue a receiver stems from Code of Civil Procedure section 568. That section empowers a receiver to bring and defend actions as a receiver, but only `under the control of the court.' . . . [Section 568] has uniformly been interpreted as requiring a claimant suing a receiver to seek court permission. (6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 364; Ostrowski v. Miller (1964) 226 Cal.App.2d 79, 84 [37 Cal.Rptr. 790]; McCarthy v. Poulsen (1985) 173 Cal.App.3d 1212, 1219 [219 Cal.Rptr. 375].) [¶] The rule that claimants must apply to the court before suing a receiver is founded upon notions of judicial economy. In most cases a claimant can obtain appropriate relief in the receivership action; therefore an independent action will not be necessary. (Ostrowski v. Miller, supra, 226 Cal.App.2d 79, 84.) By refusing permission to sue, the appointing court can require a claimant to intervene in the receivership proceedings to assert his claim, thus protecting the receiver from a proliferation of lawsuits. (Ibid.) But the court may not refuse permission where the effect would be to cut off plaintiff's rights. If the court cannot afford plaintiff the same relief in intervention as he is entitled to in an independent action, refusal to permit the lawsuit to proceed will constitute an abuse of discretion. (Id. at p. 85; De Forrest v. Coffey (1908) 154 Cal. 444 [98 P. 27].) For example, if plaintiff's claim contemplates a jury trial, the court may not require plaintiff to try the claim before the court sitting in equity in the receivership action. (Chiesur v. Superior Court (1946) 76 Cal.App.2d 198, 202-203 [172 P.2d 763].)"

The court in Jun v. Myers, supra, 88 Cal.App.4th 117, held that a court may not deny leave to sue a receiver, either in the proceeding in which the receiver is appointed or in an independent action, based on a summary determination that the plaintiff's claim is without merit. That is what the trial court did here. "To prevent a party from filing a separate suit against a receiver as well as from intervening in the receivership action is to deprive him of access to the courts to pursue his claim. Denial of access to the courts implicates due process." (Id. at p. 125.) Plaintiff is seeking a legal remedy—compensation for the use of drawings.

The receiver suggests this court not follow Jun v. Myers, supra, 88 Cal.App.4th 117 because Abramson can object to the final receivership accounting. But such a procedure does not necessarily provide for the rights afforded by an action. It may be that the trial court is correct on the merits of Abramson's claims. But Abramson's claims can be addressed by demurrer, summary judgment or trial, either in the receivership proceeding or in a separate proceeding.

DISPOSITION

The trial court's denying Abramson's motion to file a complaint against the receiver or intervene in the action in which the receiver was appointed is reversed. Abramson is to recover its costs on appeal.

We concur:

KRIEGLER, J.

KUMAR, J.*