Motion for Appointment of Receiver
Westpac Higuera, LLC v. Hamish Marshall, et al., 26CV-0135
Hearing: Motion for Appointment of Receiver
Date: August 5, 2026
In December 2017, RJH Investors, LP (RJH) sold real property located at 736-738 Higuera Street in San Luis Obispo (the Premises) to Westpac Higuera, LLC (Westpac). At the same time, RJH leased the Premises from Westpac pursuant to a Master Lease. The individual and trustee defendants named in the complaint are guarantors of RJH’s performance under the Master Lease. Westpac and RJH subsequently executed two amendments to the Master Lease on May 1, 2020, and January 1, 2021, respectively.
Under the Master Lease, RJH is prohibited from subletting the Property without Westpac’s consent (§ 15); Westpac has a security interest in RJH’s personal property used in connection with operation of the Premises and businesses on the Premises (§ 11); and upon termination of the lease, RJH is to assign the personal property to Westpac as collateral (§ 11.2). The personal property is listed in exhibit B of the Master Lease.
Westpac reports RJH has subleased the Premises to Wilson and Wells, LLC (also named as a defendant) without its consent and sold the personal property to Wilson and Wells for $1 million. Westpac therefore seeks appointment of a receiver to (1) take possession of the subject premises; (2) collect and account for subtenant rents; and (3) protect the secured collateral from further unlawful disposition or removal. The Court denies the request.
Westpac moves pursuant to Code of Civil Procedure section 564(b)(1) and (9). Subsection (b)(1) permits appointment of a receiver “where it is shown that the property or fund is in danger of being lost, removed, or materially injured.” Subsection (b)(9) is a catchall permitting appointment of a receiver “[i]n all other cases where necessary to preserve the property or rights of any party.”
As for the collection of rents, the parties filed a stipulation on June 29, 2026, agreeing that Wilson and Wells would pay its sublease rent directly to Westpac. The parties also agreed that the stipulation was not to be used as evidence in connection with this motion. That agreement, however, does not prevent the Court from taking judicial notice of the stipulation and considering it when determining whether to exercise its equitable powers to appoint a receiver.
Westpac argues the most serious allegation is the sale of the personal property which was to serve as collateral for the agreements between Westpac and RJH. Westpac argues that a receiver is needed to avoid theft, removal or waste of those assets. Westpac has not shown there is a threat that Wilson and Wells, who purchased the personal property and appears to be using it as part of its ongoing business operations, will dispose or remove it. Additionally, Westpac has not shown (for purposes of this motion) that Wilson and Wells executed a joinder to the Master Lease as
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required by section 11.1(a), which would allow a receiver to enforce that section against the subtenant.
Appointment of a receiver is a drastic remedy, which the Court finds is unnecessary under the circumstances. (Hoover v. Galbraith (1972) 7 Cal.3d 519, 528.)
ORDER
The motion to appoint a receiver is denied.
The Court sustains Westpac’s objections to paragraphs 15, 16, and 17 of Hamish Marshall’s declaration. The remainder of the objections are overruled.
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