QUESTION: The receiver in a case I am involved in was appointed six months ago. She initially did not file her oath. After repeated letters from me, she finally did so last month. The oath she filed is not sworn. Is the oath valid and what is the effect of the receiver’s late-filed oath?
ANSWER: California Code of Civil Procedure § 567 states: “Before entering upon the duties of a receiver: (a) the receiver must be sworn to perform the duties faithfully.” There are no reported California cases interpreting this requirement or explaining the effect of a failure to comply. Normal statutory construction would indicate that the oath “must” be taken “before” the receiver commences her duties and that, therefore, she is not qualified to act, and hence has no authority, until she takes her oath. In the preceding code section, § 566, dealing with the requirement that a bond be posted for the ex parte appointment of a receiver, the legislature also used the words “must” and “before.” Subsection (b) states: “If a receiver is appointed upon an ex parte application, the court, before making the order, must require from the applicant an undertaking in an amount to be fixed by the court… .” There are a number of California cases that state the failure to require such an undertaking renders the appointment order void. Sweins vs. Superior Court, 16 Cal. App. 2d 336 (1936) (“The provisions of that section are mandatory and the order was therefore void.”) Cases from other states, with similar statutes, hold that the failure of a receiver to take her oath deprives the receiver of her authority to act and renders the receiver’s activities null and void. See Laron vs. Kaley, 138 Ohio App. 3d 120, 122-123 (2000); Zeigler vs. Trio Realty Group, LLC, 2011 WL 5119101 (2011).
There are three ways for a receiver to give her oath. The receiver can execute her oath before a notary public and have the notary attest that the receiver signed the oath; the receiver can execute the oath under penalty of perjury (C.C.P. § 2015.5); or the receiver can execute an unsworn affirmation (C.C.P. § 2015.6). If an affirmation is used, as it appears the receiver in your case has done, “such affirmation shall commence ‘I solemnly affirm,’ shall state the substance of the matter required by the oath, the date and place of execution and shall be subscribed by him.” Id. If it does not include all of these elements, it may not be a valid affirmation, and the oath may not be valid. The easiest method, and the method recommended by “Ask the Receiver” is for the receiver to prepare the oath as a declaration and execute it under penalty of perjury.