Preview
19CV348656 on 8/12/2020 8:45 AM
Santa Clara — Civil Reviewed By: R. Burciaga
Case #19CV348656 R. Burciaga
Envelope: 4749688
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RICHARD DOYLE, City Attorney (#88625 Filed
NORA FRIMANN, Assistant City Attorney #! 93249) August 18, 2020
WESLEY KLIMCZAK, Senior Deputy City {torn e pens) Clerk of the Court
VANCE CHANGE, Deputy City Attorney (#29165 Superior Court of CA
San Jose City Attorney’s Office
200 East Santa Clara Street, 16" Floor County of Santa Clara
San José, California 95113-1905 19CV348656
Telephone Number: (408) 535-1900 By: fmiller
Facsimile Number: (408) 998-3131
E-Mail Address: cao.main@sanjoseca.go
Attorneys for CITY OF SAN JOSE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
UNLIMITED CIVIL DIVISION
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11 CITY OF SAN JOSE, a municipal Case Number: 19-cv-348656
corporation;
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Plaintiff, ORDER
13 APPOINTING RECEIVER
Vv.
14
AGNES LOPES, an individual; THE AGNES
15 LOPES TRUST, by and through trustee
Agnes Lopes; and DOES 1-10, inclusive,
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Defendants.
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18
19
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{PROPOSED} ORDER APPOINTING A RECEIVER
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Petitioner, City of San Jose (City) filed a Petition with the Court for the appointment
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of a receiver concerning real property described in the City's moving papers and
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commonly known as 4163 Piper Drive in San Jose, California, APN Number 299-
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14-044 (Subject Property). The Subject Property consists of a single-family residence
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that is currently occupied. Right, title, and interest to the property belong to Agnes Lopes
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and the Agnes Lopes trust, both of whom were properly served with the Complaint and
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this Motion and are on notice of the City’s intent to seek a receiver in this action. The
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current occupant of the Property, Steven Lopes was also separately provided notice.
The Motion was made pursuant to Health and Safety Code section 17980.7(c)
and Code of Civil Procedure section 564 et seq. The Court, in the exercise of its legal
and equitable powers, having jurisdiction over the subject matter of the Petition and
having considered the evidence and the memorandum of points and authorities
submitted in support of the Motion, finds and orders as follows:
A. FINDINGS OF FACT
dl Agnes Lopes and the Agnes Lopes Trust are the Owners of the Property
which is the subject of these proceedings, and is commonly known as 4163 Piper Drive
10 in San Jose, California.
11 2 The Property is currently being maintained in such a condition as to violate
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the Health & Safety Code and the San Jose Municipal Code.
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3 The Subject Property is substandard as defined under California Health
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and Safety Code section 17920.3 and constitutes a public nuisance.
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4 The violations are so extensive and of such a nature that the health and
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safety of the occupants, neighboring residents, and the general public is substantially
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endangered pursuant to Health and Safety Code section 17980.6.
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5. The City, as a local enforcement agency, properly issued Notices of
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Violations and Orders to Abate directed to Lopes on multiple occasions.
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6 Neither Lopes, nor any other interested party, has complied with the
22 Notices of Violations and Orders to Abate the Property within a reasonable time after
23 their issuance.
24 7 Lopes has been afforded a reasonable opportunity to correct the
25 conditions cited in said Notices of Violations and Orders.
26 8 Lopes was afforded all of the procedural due process rights guaranteed by
27 the California Constitution and the United States Constitution.
28 9 The substandard conditions at the Subject Property will likely persist
unless the Court appoints a receiver to take possession of the Subject Property and
undertake responsibility for its rehabilitation.
10. The City is the prevailing party in this matter and as such is entitled to its
attorneys’ fees and costs pursuant to Health and Safety Code §§ 17980.7(c)(11) and
17980.7(d)(1).
aie Health and Safety Code §§ 17960-17992 (Div. 13, Pt 1.5, Ch. 5, Art 1-3)
authorize the City to enforce the State Housing Law and to institute this special
proceeding.
fl: California Health and Safety Code section 17980.7(c), Code of Civil
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Procedure section 564 et seq. and the Court's inherent equitable power authorize the
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Court to appoint a receiver to take possession of the Subject Property and undertake
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rehabilitation or demolition (Rehabilitation).
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13. Lopes and all other interested parties were properly noticed and served
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15 with the Motion and were provided a reasonable opportunity to be heard in connection
16 with the Motion.
17 14. Health and Safety Code § 17983 authorizes the Court to make “any order”
18 for which an application is made pursuant to Health and Safety Code §§ 17980-17992.
19 15. Pursuant to Health and Safety Code § 17992, any person who obtains an
20 ownership interest in the subject Property after notice of pendency of this action was
21 recorded shall be subject to any order to correct the violations cited herein.
22 16. California Receivership Group, Inc., a California Benefit Corporation,
23 through its President, Mark S. Adams, Esq., the nominee of the City, has demonstrated
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the capacity and expertise to undertake and supervise a viable financial and
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construction plan for the Subject Property’s rehabilitation.
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Nite The Court finds that, given the severity and amount of work necessary to
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abate the violations on the Property, the appointment of a receiver is a necessary
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measure to coordinate and monitor the abatement of said violations.
ORDER
Accordingly, IT IS HEREBY ORDERED
1 Pursuant to Health and Safety Code § 17980.7(c), California Receivership
Group, Inc, a California Benefit Corporation, through its President, Mark S. Adams, Esq.,
(hereinafter referred to as Receiver) is appointed as the receiver over the subject Property
and is delegated the duty and power to correct all of the existing violations existing upon
the Property and to see to it that the violations do not reoccur.
2 Prior to performing his duties, the Receiver shall execute a Receiver’s oath
10 and file a bond in the sum of $50,000.00, conditioned upon the faithful performance of
11 the Receiver’s duties.
12 Powers and Duties
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3 The Receiver is vested with the following powers and duties:
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A To take full and complete possession and control of the Property, including
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the tangible and intangible personal property located in or about said real
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property or used in connection with said real property.
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To manage the Property and pay all operating expenses, including taxes,
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insurance, utilities, and general maintenance on the Subject Property. To
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the extent there is any outstanding debt, the Receiver shall not be required
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to pay for debt secured by the Property, including mortgages or promissory
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notes secured by deeds of trust on the Property. The Receiver shall not be
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obligated to contribute personal funds in the performance of the duties
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hereunder. No obligation received by the Receiver of the duties in
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accordance with this and other Orders of this Court shall be the Receiver’s
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personal obligation, but shall be the obligation of the receivership estate.
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To prepare a plan for rehabilitation of the Subject Property to remedy the
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conditions giving rise to the appointment of the Receiver, and any other
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conditions which require remediation as may be discovered by the Receiver
in the course of inspections of the Subject Property (Rehabilitation Plan and
Cost Estimate) and to seek court approval of that plan.
Following Court approval of the rehabilitation plan and the cost estimate, to
rehabilitate the Property consistent with the rehabilitation plan submitted to
the Court, to put the Property into compliance with all applicable state and
local codes, including the Uniform Housing Code, the Uniform Building
Code, the Uniform Plumbing Code, the California Building Code, the City of
San Jose Municipal Code and to otherwise render the Property as a whole
10 habitable as decent, safe and sanitary housing.
11 To enter into contracts for goods and services and employ licensed
12 contractors for repairs as necessary to bring the Property into compliance
13 with applicable codes and to render the Property habitable as decent, safe,
14 and sanitary housing, including without limitation contracts with:
15 . Any maintenance and repair companies or personnel and any
16 property manager or project manager;
17 Any licensed engineer or other building professional to inspect and
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evaluate the condition and rehabilitation potential of the Property;
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Any licensed architect, draftsperson, or other design professional to
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furnish plans and specifications for the rehabilitation of the Property;
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Any licensed general contractor, subcontractor, supplier or
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manufacturer to provide labor, services, goods, materials or
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equipment needed to manage, maintain, or rehabilitate the Property;
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Any construction manager;
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Any bank, lending institution, or government housing finance agency;
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Any title company;
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Any real estate appraiser;
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Any accountant or bookkeeper; and
Any locksmith or security company to obtain access or to maintain
the security of the Property.
To temporarily or permanently relocate the Property’s occupants (if any) if
necessary to implement the Rehabilitation Plan and Cost Estimate.
Receiver is authorized to use receivership estate funds to pay for temporary
lodging for any occupants if necessary.
To issue and record Receiver’s Certificates of Indebtedness and/or a Deed
of Trust against the Property to evidence and secure the above debt, which
10 shall become a first lien on the Property with super priority over all
11 preexisting private liens and encumbrances, except for federal, state, and
12 county tax liens. The Receiver’s Certificate shall be issued for such
13 amounts and for such items as the Court may hereafter expressly authorize,
14 upon notice and after hearing as herein provided. The debt evidenced by
15 said Certificates shall be due and payable upon the completion of the
16 Receiver’s duties hereunder with respect to the rehabilitation of the subject
17 Property and, if applicable, the issuance of a Certificate of Occupancy by
18 the City of San Jose. If at the time this debt is not satisfied, the Receiver or
19 the holder of the Certificate may apply to this Court on notice and hearing
20 to sell the Property pursuant to the California Code of Civil Procedure §
21 568.5 free and clear of subordinate liens and encumbrances.
22 To open one or more bank accounts in his name as Receiver or in the name
23 of the Receivership Estate at any federally-insured bank, savings & loan,
24 credit union, or similar financial institution.
25 To prepare monthly reports which must include the total amount of any rent
26 received, the nature and amount of any operating or repair contracts,
27 payments made to repair and operate the Subject Property, other payments
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made, and the progress of necessary repairs to the Subject Property.
Receiver is to file these reports with the Court and serve on the parties.
To file with the Court within thirty calendar days of the effective date of this
Order an inventory containing a complete and detailed list of all property of
which the Receiver has taken possession, and to promptly file a
supplementary inventory of any subsequently obtained property.
To render a final accounting to this Court at the conclusion of the
Receivership.
To pay the City its attorneys’ fees and costs, as the prevailing party, out of
10 the Receivership Estate with the same priority as the Receiver’s lien(s),
11 pursuant to Health and Safety Code §§17980.7(c)(11) and 17980.7(d)(1).
12 To sell the Property, pursuant to Code of Civil Procedure § 568.5 or by
13 private sale, if necessary, subject to the prior approval and confirmation of
14 this Court.
15 To record a certified copy of this Order with the County of Santa Clara’s
16 Recorder's Office.
17 To exercise the powers granted to receivers under section 568 of the Code
18 of Civil Procedure.
19 To apply to this Court for further or other instructions or orders and for
20 further powers necessary to enable the Receiver to perform its duties
21 properly, or to address unforeseen circumstances that may arise with
22 respect to this Receivership.
23 Possession and Control
24 4 IT IS FURTHER ORDERED That Defendants, their partners, assignees,
25 successors, representatives, managers, agents, attorneys, employees, and
26 all other persons acting under or in concert with Lopes are hereby ordered
27 to:
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Immediately relinquish and turn over possession of the Property to the
Receiver;
Immediately turn over to the Receiver and direct all property managers or
other agents or employees to turn over all keys to the Property and any
books or records with respect to the Property as requested by the Receiver;
Immediately advise the Receiver as to the nature and extent of insurance
coverage on the Property, and name the Receiver as an additional insured
on liability insurance policies for so long as the Receiver remains in
possession;
10 Forward to the Receiver all bills which they may receive in connection with
11 the Property.
12 Injunctive Orders
13 5 IT IS FURTHER ORDERED Defendants, their partners, assignees,
14 successors, representatives, managers, agents, attorneys, employees and
15 all persons acting under or with concert with Respondent, are hereby
16 enjoined at all times until the Receiver is discharged from:
17 Demanding, collecting, receiving, or diverting any rents, profits, or income
18 from the Property;
19 Interfering with the Receiver, directly or indirectly, in the conduct of the
20 receivership;
21 Encumbering, mortgaging, liening, leasing, renting, selling or transferring
22 the Property or any interest in it;
23 Canceling, reducing, or modifying any existing insurance coverage with
24 respect to the Property;
25 Commencing or continuing any foreclosure or similar process, including
26 non-judicial foreclosure and trustee sale proceedings, and further including
27 the filing of any notice of default or notice of trustee’s sale;
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Commencing or continuing any action which impairs or precludes the
Receiver’s ability to obtain policies of title insurance needed to implement
the actions authorized by this Order;
Claiming any deduction with respect to state income taxes for interest,
taxes, expenses, depreciation, or amortization paid or incurred with respect
to the Property for 2020 and all future years during the pendency of the
receivership.
Receiver’s Compensation
dl IT IS FURTHER HEREBY ORDERED that the Receiver shall be entitled to
10 compensation for his services as Receiver over the Subject Property in the amounts set
11 forth in the Declaration of Mark Adams in Support of Motion For Appointment of Receiver
12 previously filed.
13 The Receiver’s compensation shall be subject to review and final approval by this
14 Court upon notice and hearing at the time the Receiver presents a Final Report and Final
15 Accounting, which accounting shall be accompanied by records adequately documenting
16 the rehabilitation and property management services rendered by the Receiver.
17 7 IT IS FURTHER HEREBY ORDERED that the Receiver is permitted to fund
18 an initial $25,000 Certificate of Indebtedness with super priority status to cover the cost
19 of securing the Property, enlisting contractors to bid the cost of rehabilitation and the
20 initial cost of managing and stabilizing the Property and administering the Receivership
21 Estate.
22 8 IT IS FURTHER HEREBY ORDERED that should any lawful order issued
23 by the Receiver, under the authority granted herein, be refused, that the Receiver is
24 authorized to enlist the assistance of the any duly authorized police officer(s) and further
25 that such police officer(s) are authorized to employ all reasonably necessary measures
26 to secure cooperation and compliance with any lawful order issued by the Receiver,
27 including but not limited to, the use of forced entry onto/into the Property should consent
28 to enter be refused, and the removal of any individual(s) occupying the Property.
9 IT IS FURTHER HEREBY ORDERED that Receiver is granted possession
and control of the Property, and in his and staffs discretion can grant or deny access to
any party. Receiver is authorized to direct law enforcement to remove occupants as
necessary, and the Receiver is specifically authorized to order Steven Lopes be removed
by law enforcement if he determines it is necessary to abate nuisance conditions.
Reimbursement of City’s Fees and Costs
9 IT IS FURTHER HEREBY ORDERED that the City, as the prevailing party,
is entitled to recover its attorneys’ fees, ordinary costs and administrative costs,
inspection costs, investigation costs, and costs to repair and eliminate all substandard
10 conditions. The amount shall be established at such time as the City makes a further
11 application or the Receiver is ordered to pay such costs, or the Receiver is discharged,
12 whichever comes first. The City’s costs and fees may be paid out the receivership
13 certificate as approved by the Court.
14 10. IT IS FURTHER HEREBY ORDERED that Petitioner's attorney's fees and
15 costs are given the same priority as the Receiver’s and both are entitled to super priority
16 status over any preexisting lien(s), except for any federal, state, or county tax lien(s).
17 Status Conference
18 aie IT IS FURTHER HEREBY ORDERED that a STATUS CONFERENCE in
19 the above action has been scheduled for_September 29, 2020 ,
20 at 10:00 a.m./p-ra. in Department 21 of the Santa Clara County Superior
21 Court. Receiver is to prepare and file a Receiver’s Report in advance of the Status
22 Conference, with an update and request for any further instruction as needed. Petitioner
23 City of San Jose shall file with the Court and serve upon all parties a declaration setting
24 forth the status of the rehabilitation of the Property as well as any other names to be
25 completed before the Receiver is discharged.
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Failure to Comply and Reservation of Right
fl: Failure to comply with any abatement order, or other order contained herein,
shall be punishable by civil contempt, penalties under Health and Safety Code §§ 17995-
17995.5 (Div.13, Pt. 1.5, Ch. 6), and any other penalties and fines as are available.
13. This Court shall maintain jurisdiction over the Subject Property (also known
as the “Receivership Estate”) during the duration of this receivership. The
Court issues this Order pursuant to its authority under California Health and
Safety Code section 17980.7 and Code of Civil Procedure section 564 et
seq. The Court expressly retains jurisdiction to modify this Order as the
10 ends of justice may require. The Court may hear and decide issues
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regarding the scope and effect of the injunctive provisions, herein. The
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Court can modify any of the injunctive provisions hereof and take such
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further action as may be necessary or appropriate to carry into effect the
14 injunctive provisions hereof, and for the punishment of violations of same,
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if any. Plaintiffs have the authority under California Law and the City of San
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Jose’s Municipal Code to maintain this action for the protection of the
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People of the State of California and the citizens of the City of San Jose
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concerning the conduct alleged in the Petition.
19 IT IS SO ORDERED.
20 Dated:
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JUDGE OF THE SUPERIOR COURT
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Preview
19CV348656 on 8/12/2020 8:45 AM Santa Clara — Civil Reviewed By: R. Burciaga Case #19CV348656 R. Burciaga Envelope: 4749688 \ RICHARD DOYLE, City Attorney (#88625 Filed NORA FRIMANN, Assistant City Attorney #! 93249) August 18, 2020 WESLEY KLIMCZAK, Senior Deputy City {torn e pens) Clerk of the Court VANCE CHANGE, Deputy City Attorney (#29165 Superior Court of CA San Jose City Attorney’s Office 200 East Santa Clara Street, 16" Floor County of Santa Clara San José, California 95113-1905 19CV348656 Telephone Number: (408) 535-1900 By: fmiller Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.go Attorneys for CITY OF SAN JOSE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA UNLIMITED CIVIL DIVISION 10 11 CITY OF SAN JOSE, a municipal Case Number: 19-cv-348656 corporation; 12 Plaintiff, ORDER 13 APPOINTING RECEIVER Vv. 14 AGNES LOPES, an individual; THE AGNES 15 LOPES TRUST, by and through trustee Agnes Lopes; and DOES 1-10, inclusive, 16 Defendants. 17 18 19 20 {PROPOSED} ORDER APPOINTING A RECEIVER 21 Petitioner, City of San Jose (City) filed a Petition with the Court for the appointment 22 of a receiver concerning real property described in the City's moving papers and 23 commonly known as 4163 Piper Drive in San Jose, California, APN Number 299- 24 14-044 (Subject Property). The Subject Property consists of a single-family residence 25 that is currently occupied. Right, title, and interest to the property belong to Agnes Lopes 26 and the Agnes Lopes trust, both of whom were properly served with the Complaint and 27 this Motion and are on notice of the City’s intent to seek a receiver in this action. The 28 current occupant of the Property, Steven Lopes was also separately provided notice. The Motion was made pursuant to Health and Safety Code section 17980.7(c) and Code of Civil Procedure section 564 et seq. The Court, in the exercise of its legal and equitable powers, having jurisdiction over the subject matter of the Petition and having considered the evidence and the memorandum of points and authorities submitted in support of the Motion, finds and orders as follows: A. FINDINGS OF FACT dl Agnes Lopes and the Agnes Lopes Trust are the Owners of the Property which is the subject of these proceedings, and is commonly known as 4163 Piper Drive 10 in San Jose, California. 11 2 The Property is currently being maintained in such a condition as to violate 12 the Health & Safety Code and the San Jose Municipal Code. 13 3 The Subject Property is substandard as defined under California Health 14 and Safety Code section 17920.3 and constitutes a public nuisance. 15 4 The violations are so extensive and of such a nature that the health and 16 safety of the occupants, neighboring residents, and the general public is substantially 17 endangered pursuant to Health and Safety Code section 17980.6. 18 5. The City, as a local enforcement agency, properly issued Notices of 19 Violations and Orders to Abate directed to Lopes on multiple occasions. 20 21 6 Neither Lopes, nor any other interested party, has complied with the 22 Notices of Violations and Orders to Abate the Property within a reasonable time after 23 their issuance. 24 7 Lopes has been afforded a reasonable opportunity to correct the 25 conditions cited in said Notices of Violations and Orders. 26 8 Lopes was afforded all of the procedural due process rights guaranteed by 27 the California Constitution and the United States Constitution. 28 9 The substandard conditions at the Subject Property will likely persist unless the Court appoints a receiver to take possession of the Subject Property and undertake responsibility for its rehabilitation. 10. The City is the prevailing party in this matter and as such is entitled to its attorneys’ fees and costs pursuant to Health and Safety Code §§ 17980.7(c)(11) and 17980.7(d)(1). aie Health and Safety Code §§ 17960-17992 (Div. 13, Pt 1.5, Ch. 5, Art 1-3) authorize the City to enforce the State Housing Law and to institute this special proceeding. fl: California Health and Safety Code section 17980.7(c), Code of Civil 10 Procedure section 564 et seq. and the Court's inherent equitable power authorize the 11 Court to appoint a receiver to take possession of the Subject Property and undertake 12 rehabilitation or demolition (Rehabilitation). 13 13. Lopes and all other interested parties were properly noticed and served 14 15 with the Motion and were provided a reasonable opportunity to be heard in connection 16 with the Motion. 17 14. Health and Safety Code § 17983 authorizes the Court to make “any order” 18 for which an application is made pursuant to Health and Safety Code §§ 17980-17992. 19 15. Pursuant to Health and Safety Code § 17992, any person who obtains an 20 ownership interest in the subject Property after notice of pendency of this action was 21 recorded shall be subject to any order to correct the violations cited herein. 22 16. California Receivership Group, Inc., a California Benefit Corporation, 23 through its President, Mark S. Adams, Esq., the nominee of the City, has demonstrated 24 the capacity and expertise to undertake and supervise a viable financial and 25 construction plan for the Subject Property’s rehabilitation. 26 Nite The Court finds that, given the severity and amount of work necessary to 27 abate the violations on the Property, the appointment of a receiver is a necessary 28 measure to coordinate and monitor the abatement of said violations. ORDER Accordingly, IT IS HEREBY ORDERED 1 Pursuant to Health and Safety Code § 17980.7(c), California Receivership Group, Inc, a California Benefit Corporation, through its President, Mark S. Adams, Esq., (hereinafter referred to as Receiver) is appointed as the receiver over the subject Property and is delegated the duty and power to correct all of the existing violations existing upon the Property and to see to it that the violations do not reoccur. 2 Prior to performing his duties, the Receiver shall execute a Receiver’s oath 10 and file a bond in the sum of $50,000.00, conditioned upon the faithful performance of 11 the Receiver’s duties. 12 Powers and Duties 13 3 The Receiver is vested with the following powers and duties: 14 A To take full and complete possession and control of the Property, including 15 the tangible and intangible personal property located in or about said real 16 property or used in connection with said real property. 17 To manage the Property and pay all operating expenses, including taxes, 18 insurance, utilities, and general maintenance on the Subject Property. To 19 the extent there is any outstanding debt, the Receiver shall not be required 20 to pay for debt secured by the Property, including mortgages or promissory 21 notes secured by deeds of trust on the Property. The Receiver shall not be 22 obligated to contribute personal funds in the performance of the duties 23 hereunder. No obligation received by the Receiver of the duties in 24 accordance with this and other Orders of this Court shall be the Receiver’s 25 personal obligation, but shall be the obligation of the receivership estate. 26 To prepare a plan for rehabilitation of the Subject Property to remedy the 27 conditions giving rise to the appointment of the Receiver, and any other 28 conditions which require remediation as may be discovered by the Receiver in the course of inspections of the Subject Property (Rehabilitation Plan and Cost Estimate) and to seek court approval of that plan. Following Court approval of the rehabilitation plan and the cost estimate, to rehabilitate the Property consistent with the rehabilitation plan submitted to the Court, to put the Property into compliance with all applicable state and local codes, including the Uniform Housing Code, the Uniform Building Code, the Uniform Plumbing Code, the California Building Code, the City of San Jose Municipal Code and to otherwise render the Property as a whole 10 habitable as decent, safe and sanitary housing. 11 To enter into contracts for goods and services and employ licensed 12 contractors for repairs as necessary to bring the Property into compliance 13 with applicable codes and to render the Property habitable as decent, safe, 14 and sanitary housing, including without limitation contracts with: 15 . Any maintenance and repair companies or personnel and any 16 property manager or project manager; 17 Any licensed engineer or other building professional to inspect and 18 evaluate the condition and rehabilitation potential of the Property; 19 Any licensed architect, draftsperson, or other design professional to 20 furnish plans and specifications for the rehabilitation of the Property; 21 Any licensed general contractor, subcontractor, supplier or 22 manufacturer to provide labor, services, goods, materials or 23 equipment needed to manage, maintain, or rehabilitate the Property; 24 Any construction manager; 25 Any bank, lending institution, or government housing finance agency; 26 Any title company; 27 Any real estate appraiser; 28 Any accountant or bookkeeper; and Any locksmith or security company to obtain access or to maintain the security of the Property. To temporarily or permanently relocate the Property’s occupants (if any) if necessary to implement the Rehabilitation Plan and Cost Estimate. Receiver is authorized to use receivership estate funds to pay for temporary lodging for any occupants if necessary. To issue and record Receiver’s Certificates of Indebtedness and/or a Deed of Trust against the Property to evidence and secure the above debt, which 10 shall become a first lien on the Property with super priority over all 11 preexisting private liens and encumbrances, except for federal, state, and 12 county tax liens. The Receiver’s Certificate shall be issued for such 13 amounts and for such items as the Court may hereafter expressly authorize, 14 upon notice and after hearing as herein provided. The debt evidenced by 15 said Certificates shall be due and payable upon the completion of the 16 Receiver’s duties hereunder with respect to the rehabilitation of the subject 17 Property and, if applicable, the issuance of a Certificate of Occupancy by 18 the City of San Jose. If at the time this debt is not satisfied, the Receiver or 19 the holder of the Certificate may apply to this Court on notice and hearing 20 to sell the Property pursuant to the California Code of Civil Procedure § 21 568.5 free and clear of subordinate liens and encumbrances. 22 To open one or more bank accounts in his name as Receiver or in the name 23 of the Receivership Estate at any federally-insured bank, savings & loan, 24 credit union, or similar financial institution. 25 To prepare monthly reports which must include the total amount of any rent 26 received, the nature and amount of any operating or repair contracts, 27 payments made to repair and operate the Subject Property, other payments 28 made, and the progress of necessary repairs to the Subject Property. Receiver is to file these reports with the Court and serve on the parties. To file with the Court within thirty calendar days of the effective date of this Order an inventory containing a complete and detailed list of all property of which the Receiver has taken possession, and to promptly file a supplementary inventory of any subsequently obtained property. To render a final accounting to this Court at the conclusion of the Receivership. To pay the City its attorneys’ fees and costs, as the prevailing party, out of 10 the Receivership Estate with the same priority as the Receiver’s lien(s), 11 pursuant to Health and Safety Code §§17980.7(c)(11) and 17980.7(d)(1). 12 To sell the Property, pursuant to Code of Civil Procedure § 568.5 or by 13 private sale, if necessary, subject to the prior approval and confirmation of 14 this Court. 15 To record a certified copy of this Order with the County of Santa Clara’s 16 Recorder's Office. 17 To exercise the powers granted to receivers under section 568 of the Code 18 of Civil Procedure. 19 To apply to this Court for further or other instructions or orders and for 20 further powers necessary to enable the Receiver to perform its duties 21 properly, or to address unforeseen circumstances that may arise with 22 respect to this Receivership. 23 Possession and Control 24 4 IT IS FURTHER ORDERED That Defendants, their partners, assignees, 25 successors, representatives, managers, agents, attorneys, employees, and 26 all other persons acting under or in concert with Lopes are hereby ordered 27 to: 28 Immediately relinquish and turn over possession of the Property to the Receiver; Immediately turn over to the Receiver and direct all property managers or other agents or employees to turn over all keys to the Property and any books or records with respect to the Property as requested by the Receiver; Immediately advise the Receiver as to the nature and extent of insurance coverage on the Property, and name the Receiver as an additional insured on liability insurance policies for so long as the Receiver remains in possession; 10 Forward to the Receiver all bills which they may receive in connection with 11 the Property. 12 Injunctive Orders 13 5 IT IS FURTHER ORDERED Defendants, their partners, assignees, 14 successors, representatives, managers, agents, attorneys, employees and 15 all persons acting under or with concert with Respondent, are hereby 16 enjoined at all times until the Receiver is discharged from: 17 Demanding, collecting, receiving, or diverting any rents, profits, or income 18 from the Property; 19 Interfering with the Receiver, directly or indirectly, in the conduct of the 20 receivership; 21 Encumbering, mortgaging, liening, leasing, renting, selling or transferring 22 the Property or any interest in it; 23 Canceling, reducing, or modifying any existing insurance coverage with 24 respect to the Property; 25 Commencing or continuing any foreclosure or similar process, including 26 non-judicial foreclosure and trustee sale proceedings, and further including 27 the filing of any notice of default or notice of trustee’s sale; 28 Commencing or continuing any action which impairs or precludes the Receiver’s ability to obtain policies of title insurance needed to implement the actions authorized by this Order; Claiming any deduction with respect to state income taxes for interest, taxes, expenses, depreciation, or amortization paid or incurred with respect to the Property for 2020 and all future years during the pendency of the receivership. Receiver’s Compensation dl IT IS FURTHER HEREBY ORDERED that the Receiver shall be entitled to 10 compensation for his services as Receiver over the Subject Property in the amounts set 11 forth in the Declaration of Mark Adams in Support of Motion For Appointment of Receiver 12 previously filed. 13 The Receiver’s compensation shall be subject to review and final approval by this 14 Court upon notice and hearing at the time the Receiver presents a Final Report and Final 15 Accounting, which accounting shall be accompanied by records adequately documenting 16 the rehabilitation and property management services rendered by the Receiver. 17 7 IT IS FURTHER HEREBY ORDERED that the Receiver is permitted to fund 18 an initial $25,000 Certificate of Indebtedness with super priority status to cover the cost 19 of securing the Property, enlisting contractors to bid the cost of rehabilitation and the 20 initial cost of managing and stabilizing the Property and administering the Receivership 21 Estate. 22 8 IT IS FURTHER HEREBY ORDERED that should any lawful order issued 23 by the Receiver, under the authority granted herein, be refused, that the Receiver is 24 authorized to enlist the assistance of the any duly authorized police officer(s) and further 25 that such police officer(s) are authorized to employ all reasonably necessary measures 26 to secure cooperation and compliance with any lawful order issued by the Receiver, 27 including but not limited to, the use of forced entry onto/into the Property should consent 28 to enter be refused, and the removal of any individual(s) occupying the Property. 9 IT IS FURTHER HEREBY ORDERED that Receiver is granted possession and control of the Property, and in his and staffs discretion can grant or deny access to any party. Receiver is authorized to direct law enforcement to remove occupants as necessary, and the Receiver is specifically authorized to order Steven Lopes be removed by law enforcement if he determines it is necessary to abate nuisance conditions. Reimbursement of City’s Fees and Costs 9 IT IS FURTHER HEREBY ORDERED that the City, as the prevailing party, is entitled to recover its attorneys’ fees, ordinary costs and administrative costs, inspection costs, investigation costs, and costs to repair and eliminate all substandard 10 conditions. The amount shall be established at such time as the City makes a further 11 application or the Receiver is ordered to pay such costs, or the Receiver is discharged, 12 whichever comes first. The City’s costs and fees may be paid out the receivership 13 certificate as approved by the Court. 14 10. IT IS FURTHER HEREBY ORDERED that Petitioner's attorney's fees and 15 costs are given the same priority as the Receiver’s and both are entitled to super priority 16 status over any preexisting lien(s), except for any federal, state, or county tax lien(s). 17 Status Conference 18 aie IT IS FURTHER HEREBY ORDERED that a STATUS CONFERENCE in 19 the above action has been scheduled for_September 29, 2020 , 20 at 10:00 a.m./p-ra. in Department 21 of the Santa Clara County Superior 21 Court. Receiver is to prepare and file a Receiver’s Report in advance of the Status 22 Conference, with an update and request for any further instruction as needed. Petitioner 23 City of San Jose shall file with the Court and serve upon all parties a declaration setting 24 forth the status of the rehabilitation of the Property as well as any other names to be 25 completed before the Receiver is discharged. 26 27 28 10 Failure to Comply and Reservation of Right fl: Failure to comply with any abatement order, or other order contained herein, shall be punishable by civil contempt, penalties under Health and Safety Code §§ 17995- 17995.5 (Div.13, Pt. 1.5, Ch. 6), and any other penalties and fines as are available. 13. This Court shall maintain jurisdiction over the Subject Property (also known as the “Receivership Estate”) during the duration of this receivership. The Court issues this Order pursuant to its authority under California Health and Safety Code section 17980.7 and Code of Civil Procedure section 564 et seq. The Court expressly retains jurisdiction to modify this Order as the 10 ends of justice may require. The Court may hear and decide issues 11 regarding the scope and effect of the injunctive provisions, herein. The 12 Court can modify any of the injunctive provisions hereof and take such 13 further action as may be necessary or appropriate to carry into effect the 14 injunctive provisions hereof, and for the punishment of violations of same, 15 if any. Plaintiffs have the authority under California Law and the City of San 16 Jose’s Municipal Code to maintain this action for the protection of the 17 People of the State of California and the citizens of the City of San Jose 18 concerning the conduct alleged in the Petition. 19 IT IS SO ORDERED. 20 Dated: 21 22 JUDGE OF THE SUPERIOR COURT 23 24 25 26 27 28 11