Q: I was appointed receiver based on an ex parte motion. The court subsequently confirmed my appointment. The defendant vigorously opposed my appointment and has threatened to appeal. Which order does the defendant have to appeal, the ex parte order or the confirmation order? Also, does the 60 day time to appeal run from the ex parte appointment order or the confirmation order?
A: The ex parte order initially appointing you is not an appealable order. The order that needs to be appealed is the order confirming your appointment. For this reason, the time to appeal is not based on the ex parte order, but the confirmation order. The practice of having a receiver appointed ex parte, with a follow up confirmation, as set forth in Rules of Court, Rule 3.1175 and 3.1176, is similar to getting a temporary restraining order, followed by a hearing on a preliminary injunction. The ex parte order is interlocutory and is not appealable. As the court in Moore v. Oberg, 61 Cal App. 2d 216, 220 (1943) stated in dismissing an appeal of an ex parte order appointing a receiver: “It was only a temporary order and merely served as a notice of motion and a citation to the defendants to appear at a designated time to show cause why the motion should not be granted.” The time to appeal does not run from the issuance of the order confirming the receiver’s appointment or the entry of that order. Instead, pursuant to Rules of Court, Rule 8.104, the time to appeal is either: (1) 60 days after the superior court clerk, or a party, serves on the party filing the notice of appeal, a document entitled: “Notice of Entry” of judgment or a file-endorsed copy of the judgment accompanied by a proof of service, or (2) 180 days after entry of judgment. Rule 8.104 (e) makes clear that the use of the term “judgment” includes “an appealable order if the appeal is from an appealable order.”
