Opinion
Page 562e
160 Cal.App.4th 562e __ Cal.Rptr.3d__ RANDALL L. GOODMAN et al., Plaintiffs and Appellants, v. JESUS LOZANO et al., Defendants and Respondents. G036774 California Court of Appeal, Fourth District, Third Division March 7, 2008Super. Ct. No. 01CC02874
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION; CHANGE IN JUDGMENT
THE COURT
(1) The petition for rehearing, filed by Appellants on February 25, 2008, (159 Cal.App.4th 1313;___ Cal.Rptr.3d___ ) is DENIED.
(2) The opinion, filed February 8, 2008, is hereby modified as follows:
(2a) On page 6 [159 Cal.App.4th 1320-1321, advance report, 6th full par.] of the slip opinion, delete the second full paragraph and substitute, in its stead, this paragraph:
Under the peculiar facts of this case, there can be no doubt that the Mobricis and at least Jesus Lozano were in a general partnership. Indeed, at the trial level there never was any dispute over the issue. In closing arguments, Goodman and Guinther’s own trial counsel described Mobrici as “a joint -- certainly a partner of Mr. Lozano.” (Italics added.) For his part, Jesus Lozano testified that the arrangement he had with the Mobricis was “fifty percent of the profit and/or loss.” (Cf. April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 819 [195 Cal.Rptr. 421] [elements of joint venture are joint interest in common business, an understanding to share both profit and loss, and right to joint control].) Finally, Alberto Mobrici testified that the Mobricis met Jesus Lozano in 1989 or 1990, and formed an oral business “relationship” where they would buy residential properties -- the two of them “built” about seven or eight homes. Their agreement was: “Mr. Lozano would provide the money to build; and the profits, we would share them 50-50. Mobrici was the “construction arm of the venture.”
(2b) On page 9 [159 Cal.App.4th 1323, advance report, 1st par., line 10] of the slip opinion, at the end of the paragraph ending with the words “arising out of the Lozano-Mobrici partnership,” insert the following new footnote 5, and renumber all subsequent footnotes accordingly:
The double recovery principle in section 877 also operates in favor of Natalia Lozano, wife of Jesus Lozano, regardless of whether she may, or may
Page 562f
not, have technically been a partner in the Lozano-Mobrici partnership. (She certainly held title to the property as a joint tenant with her husband, Jesus.) Her involvement in the case was completely passive, her exposure totally vicarious (whether arising directly from her status as joint owner of the developed property, or as a member of the Lozano-Mobrici partnership), and any award against her could only be traceable to some failure by the Mobricis from their duties arising out of their partnership with her husband. As the court noted in Gacksetter v. Frawley (2006) 135 Cal.App.4th 1257, 1271-1272 [38 Cal.Rptr.3d 333] , the phrase “joint tortfeasor” as used in sections 877 and 877.6 is given a broad meaning, and certainly includes defendants whose liability is only derivative or vicarious.
(2c) On page 42 [159 Cal.App.4th 1348, advance report, 2d full par.] of the slip opinion, delete the final, one-sentence, paragraph of the opinion and substitute, in its stead, this paragraph:
Recognizing that our analysis in this opinion has required us to part company with some prior published opinions, we are persuaded that this case is an instance where the interests of justice require that each side bear its own costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(5).)
(3) The modification specified in (2c) above changes the appellate judgment. Accordingly, the finality period for the opinion filed February 8, 2008, begins to run from the filing date of this modification order. (See Cal. Rules of Court, rule 8.264(c)(2).)