Opinion
A113547 A114389
9-17-2007
DONALD CARMIGNANI et al., Plaintiffs and Respondents, v. KENNETH A. PAGANINI et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Plaintiffs Donald and Michael Carmignani purchased property from defendants Kenneth and Jeannine Voix Paganini and William and Claire Spencer, who held title to the property in family trusts for which all defendants acted as trustees. After purchasing the property, the Carmignanis discovered extensive dry rot and other problems and sued the defendants for breach of contract, failure to make required disclosures, fraud and negligence. At the close of evidence, the trial court, with plaintiffs agreement, granted a nonsuit in favor of Jeannine Paganini and Claire Spencer (defendant wives) on the breach of contract cause of action. The court did not instruct on any theory of vicarious liability. The jury found Kenneth Paganini and William Spencer liable on all causes of action and defendant wives not liable on any of them. Plaintiffs then brought a motion for judgment notwithstanding the verdict (JNOV) or in the alternative for a new trial as to defendant wives on every cause of action. The trial court granted JNOV and defendant wives have appealed. We are constrained to reverse the JNOV, but shall affirm the alternative order granting a new trial as to the defendant wives.
Background
On March 5, 2004, plaintiffs filed a complaint naming as defendants Kenneth Paganini and Jeannine Paganini individually and as cotrustees of the Paganini Exchange Trust, and William Spencer and Claire Spencer as individuals and as cotrustees of the Spencer Exchange Trust. Jeannine Paganini was additionally identified as "a real estate broker or agent licensed to practice in the State of California" working for Coldwell Banker Real Estate Corporation (Coldwell Banker) and as "defendants broker or agent in the sale of the subject property to plaintiffs." The complaint also named Nathan Churchill and Coldwell Banker as defendants.
The complaint alleged that on October 13, 2002, plaintiffs entered into a contract with the Paganinis and the Spencers to purchase a two unit building on Lombard Street in San Francisco. Defendants provided plaintiffs with a real estate transfer disclosure statement. Plaintiffs took possession of the property on January 22, 2003. Plaintiffs alleged that defendants had failed to disclose "a. Extensive toxic mold throughout the beams, walls and ceiling of the garage; [¶] b. Extensive dry rot throughout the beams, walls and ceiling of the garage; [¶] c. Substantial missing section of building siding leaving a large hole between plaintiffs building and the adjacent property; and [¶] d. Unpermitted, substandard construction work including makeshift patches of rotten beams, including load bearing beams, and shoddy attachment of beam joints to load bearing beams." Plaintiffs alleged that the sellers disclosed "that the garage had been finished with new walls but did not mention the above-described conditions. Plaintiffs are informed that the subject property was owned by defendants Spencer and Paginini [sic] or by members of their immediate families for approximately thirty-seven years prior [to] the sale. Those conditions had been plainly visible to sellers before sellers concealed them from view behind new walls." The complaint alleged that the sellers intentionally or negligently failed to disclose these conditions. Causes of action were alleged for breach of contract; violation of Civil Code sections 1102 et seq.; intentional misrepresentation; "fraud and deceit—suppression of fact"; negligent misrepresentation; and negligence.
Civil Code sections 1102 et seq. set forth the requirements for disclosures upon transfer of real property.
After all defendants had filed answers, Coldwell Banker and Churchill settled with plaintiffs and were dismissed from the action. Jeannine Paganini was dismissed only in her capacity as a real estate agent.
After the close of evidence, the trial court granted a motion for nonsuit by Jeannine Paganini and Claire Spencer on the breach of contract cause of action. Plaintiffs agreed that it was appropriate to dismiss defendant wives from the breach of contract claim because neither had signed the sales agreement. Plaintiffs counsel stated, "There is no written agreement with their signatures on it. So them being deleted from that is appropriate." Plaintiffs proposed jury instructions contained brief instructions on agency but the instructions were not given. Plaintiffs suggested "that we go ahead with the existing instructions, and then depending on the outcome, come back to the court for further relief on a posttrial motion, and so long as we are protected by that, so long as Im not giving up any rights to have vicarious liability somehow in the case, that is acceptable to the plaintiffs." The court stated, "So then, we are not going to have agency or partnership instructions."
Plaintiffs proposed that the court instruct with CACI No. 3700 ("Defendants are responsible for harm caused by the wrongful conduct of their agents while acting within the scope of their authority") and CACI No. 3703, modified to state that various persons and entities were the agents of "defendants Paganini and Spencer." Jeannine Paganini was included as an agent, but presumably in her brokerage capacity. The proposed instruction did not state that any of the defendants was the agent of his or her spouse.
The jury found that Kenneth Paganini and William Spencer breached their agreement with the Carmignanis; that they were negligent, and that the Carmignanis were also 20 percent negligent regarding the purchase of the property; that Kenneth Paganini and William Spencer violated Civil Code section 1102, et seq. by failing to disclose material facts; that they intentionally misrepresented facts materially affecting the value of the property, but that they did not act with fraud, malice or oppression; that they concealed material facts; that they negligently misrepresented material facts concerning the property; and that their actions caused actual damages to the Carmignanis of $124,000. The jury found that Jeannine Paganini and Claire Spencer were not liable on any cause of action.
Judgment was entered awarding plaintiffs $112,000 against Kenneth Paganini and William Spencer, plus costs, and nothing against Jeannine Paganini and Claire Spencer. Plaintiffs and defendant wives filed separate cost memoranda. Defendant wives also filed a motion to strike plaintiffs cost memorandum as to them and to tax costs.
This amount represents actual damages of $124,000 less an agreed credit of $12,000.
Defendant wives application for costs and attorney fees as prevailing parties is apparently responsible for the continuation of this litigation. In their motion for JNOV or new trial, plaintiffs stated that "These motions are necessary only because the defendant-wives have stated they will seek costs and attorney fees as prevailing parties based on the erroneous nonsuit ruling and the presently entered judgment. To allow defendant-wives to offset defendants obligation to make the Carmignanis whole would create a substantial injustice in light of the clear jury verdict finding defendant-husbands liable for breach of contract and intentional fraud. Plaintiffs would have been satisfied with the present judgment if defendants had agreed not to seek costs and attorney fees on the existing judgment."
Plaintiffs filed a motion to vacate the judgment in favor of defendant wives and for JNOV or in the alternative a new trial as to those two defendants. The trial court granted the motion, ruling as follows. "1. Plaintiffs motion for judgment notwithstanding the verdict on the ground that nonsuit/directed verdict was improperly granted as to the claim of breach of contract is granted because plaintiffs have shown that there is no substantial evidence to support the nonsuit and that there is substantial evidence to support a theory of contractual liability based on agency by ratification. [¶] 2. Plaintiff[s] motion for judgment notwithstanding the verdict on the ground that the jury verdict for defendants was unsupported as a matter of law as to the claims of negligence and fraud is granted because plaintiffs have shown that there is no substantial evidence to support the verdict and that there is substantial evidence to support a theory of liability based on agency by ratification." The court also granted the motion for a new trial in the alternative, ordering "that all previous judgments and verdicts rendered as to defendants Jeannine Voix Paganini and Claire Spencer be set aside and vacated and that a new trial is ordered on the following issues: [¶] a. Liability of these defendants for plaintiffs breach of contract claim. [¶] b. Liability of these defendants for plaintiffs negligence claim. [¶] c. Liability of these defendants for plaintiffs fraud claims."
Plaintiffs then filed a motion to strike the defendants memorandum of costs. On the same day defendant wives filed a notice withdrawing their memorandum of costs. The court denied defendant wives motion to strike costs but subsequently granted in part the motion to tax costs and awarded plaintiffs costs of $4,211.90.
Plaintiffs filed a motion for attorney fees in the amount of $305,491, based on the attorney fee provision in the contract. The trial court awarded fees of $203,271 against all defendants.
On March 2, 2006, all four defendants filed a notice of appeal from the original judgment filed on November 15, 2005, and from the order granting JNOV and in the alternative a new trial and the order denying their motion to strike costs, both of which were filed on January 17, 2006. On April 26, 2006, the trial court entered an amended judgment in favor of plaintiffs and against all four defendants for $112,000, plus attorney fees of $203,271. On May 3, 2006, the trial court entered a second amended judgment that additionally awarded plaintiffs costs of $20,533.98. On June 6, 2006, defendants filed a second notice of appeal from the award of attorney fees, the amended judgment and the second amended judgment.
The two appeals have been consolidated in this court.
Kenneth Paganini and William Spencer have requested this court to dismiss the appeal on their behalves, as they do not challenge the judgment against them. The unopposed request is granted.
DISCUSSION
Jeannine Paganini and Claire Spencer argue that the trial court erred by granting JNOV and subsequently assessing attorney fees and costs against them. We review a judgment notwithstanding the verdict de novo. (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.)
A motion for JNOV is governed by Code of Civil Procedure section 629, which provides that "The court . . . either of its own motion . . . or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for directed verdict . . . should have been granted had a previous motion been made. [¶] . . . [¶] . . . If the court grants the motion for judgment notwithstanding the verdict . . . and likewise grants the motion for a new trial, the order granting the new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed, and the order granting a new trial is not appealed from or, if appealed from, is affirmed." The trial court may grant JNOV in favor of a plaintiff only where "the evidence, as a matter of law, dictates a determination of all of the issues in the case in his favor." (Jach v. Edson (1967) 255 Cal.App.2d 96, 99.)
"The trial judges power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. [Citations.] The trial judge cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] `A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied. " (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.)
Nonsuit
The disposition of the first cause of action for breach of contract presents initial procedural questions because that cause of action was in a different posture from the others when the court granted JNOV. In granting the motion as to this cause of action, the trial court reversed the order it had entered at the close of evidence granting a nonsuit on this cause of action as to defendant wives. The trial court reasoned, "Plaintiffs have shown that there is no substantial evidence to support the nonsuit and that there is substantial evidence to support a theory of contractual liability based on agency by ratification."
"A motion for nonsuit is a procedural device which allows a defendant to challenge the sufficiency of plaintiffs evidence to submit the case to the jury. [Citation.] Because a grant of the motion serves to take a case from the jurys consideration, courts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendants motion for nonsuit if plaintiffs evidence would support a jury verdict in plaintiffs favor." (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117-118.)
A motion for nonsuit is not permitted, however, after both parties have rested. (Code Civ. Proc., § 581c, subd. (a) ["Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit"].) A motion made after both parties have rested, as in this case, is a motion for a directed verdict. (Code Civ. Proc., § 630, subd. (a) ["after all parties have completed the presentation of all of their evidence in a trial by jury, any party may, without waiving his or her right to trial by jury in the event the motion is not granted, move for an order directing entry of a verdict in its favor"].) However, both motions are governed by the same standard. (Brassinga v. City of Mountain View, supra, 66 Cal.App.4th at p. 210 ["A directed verdict is also subjected to de novo appellate review. [Fn. omitted.] `[T]he power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit "].) Treating the trial court as having granted a directed verdict rather than a nonsuit eliminates what would otherwise be a verbal and procedural conundrum. The court could not have granted a motion for JNOV—a judgment notwithstanding "the verdict"—if no verdict had been rendered. (See, e.g., Herr v. Nestlé U.S.A., Inc. (2003) 109 Cal.App.4th 779, 788 ["JNOV procedure, by definition, applies to jury trials"].) The dilemma is resolved without prejudice to any party by treating the court as having granted a directed verdict on the breach of contract claim at the close of the evidence.
We have not been directed to any case in which a trial court has granted JNOV for one party after having previously directed a verdict in favor of the opposing party, but we see no reason in principle why the court should not be able to do so. Both motions turn exclusively upon issues of law. So long as the case remains within the trial courts jurisdiction, the court may on its own motion correct what it perceives to be errors in its previous rulings. (Le Francois v. Goel (2005) 35 Cal.4th 1094.) That is precisely what the court did here. While defendant wives undoubtedly were disappointed by the courts change of mind, they have pointed to no prejudice that resulted from the court reaching its adverse conclusion later rather than sooner. Thus, we find no procedural defect in the courts ultimate ruling. We must determine, however, whether that ruling is substantively correct.
Judgment notwithstanding the verdict
The trial court ultimately concluded that defendant wives were, as a matter of law, vicariously liable for their husbands actions which the jury found constituted breach of contract, negligence, intentional misrepresentation, concealment, and negligent misrepresentation. The trial court reasoned as follows: "a. After weighing the evidence, the court is convinced from the entire record, including reasonable inferences therefrom, that the court granted a nonsuit on the breach of contract claim in error. Plaintiffs have presented sufficient testimonial evidence at trial to support a finding of agency by ratification by these defendants. Defendants have presented no evidence to indicate a lack of benefit received from the contract at issue, or a lack of awareness of this benefit. Considering this evidence, the court finds that the court clearly should have reached a different decision. [¶] b. Alternatively, the court finds that the grant of a nonsuit on the breach of contract claim for defendants constituted an error of law. Plaintiffs have presented sufficient testimonial evidence at trial to support a finding of agency by ratification by these defendants. Considering this evidence, the court finds that it granted the nonsuit in error. [¶] After weighing the evidence, the court is convinced from the entire record, including reasonable inferences therefrom, that the jury found no liability by these defendants for the negligence and fraud claims in error. Plaintiffs have presented sufficient testimonial evidence at trial to support a finding of agency by ratification by these defendants. Defendants have presented no evidence to indicate a lack of benefit received from the negligent and fraudulent conduct of codefendants, or a lack of awareness of this benefit. Considering this evidence, the court finds that the jury clearly should have reached a different decision. [¶] Alternatively, the court finds that the courts denial of plaintiffs request for jury instructions on agency with respect to the breach of contract, negligence and fraud claims constituted an error of law. Plaintiffs have presented sufficient testimonial evidence at trial to support a finding of agency by ratification by these defendants. Considering this evidence the court finds that it was error to deny the agency instructions requested by plaintiffs."
The trial courts reliance on the theory of agency by ratification to hold defendant wives liable for breach of the real estate contract which they never signed was erroneous. "A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof." (Civ. Code, § 2310; Lindsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, 1736.) "[R]atification may be made only in the manner that is necessary to confer the original authority to perform the act ratified. When the authority of an agent must be in writing under the equal dignities rule, the ratification of the agents authority also must be in writing, and without a written ratification, the principal will not be bound by the acts of the agent in the absence of an estoppel." (1 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 1.82, p. 279, fns. omitted.) In order for defendant wives to have ratified the contract signed only by the two husbands, therefore, the ratification must have been in writing. (Civ. Code, §§ 1091, 1624, subd. (a)(3) [an agreement for sale of real property "if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged"]; see also Estate of Stephens (2002) 28 Cal.4th 665, 672 ["An agents authority to execute a deed on behalf of a principal must be conferred in writing"].) Plaintiffs do not suggest that defendant wives signed the contract for sale of the property or any writing ratifying their husbands action, nor is there any evidence of an estoppel. Plaintiffs primary response to the statute of frauds argument is that it may not be raised for the first time on appeal. However, questions of law are cognizable for the first time on appeal. (Sanchez v. Truck Ins. Exchange (1994) 21 Cal.App.4th 1778, 1787 [" ` "a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts" "].) There being no dispute as to the fact that defendant wives did not sign the contract, or any writing authorizing their husbands to enter the contract or ratifying their action in having done so, and no evidence of an estoppel to deny authorization or ratification, it was error to have granted JNOV on the ground that the wives are bound by the contract and personally liable for its breach.
Plaintiffs reliance on Behniwal v. Mix (2005) 133 Cal.App.4th 1027 and their suggestion that Jeannine Paganinis signature on the disclosure documents satisfied the statute of frauds are misplaced. In Behniwal v. Mix the court held that the signature by both the husband and wife sellers of their home upon "a variety of disclosure forms" was sufficient to satisfy the statute of frauds where the sales agreement had been signed by their broker and not themselves. (Id. at p. 1040.) Here, Jeannine Paganini signed only the agents disclosure portion of the disclosure form and she has been released in her brokers capacity. Claire Spencer did not sign the disclosure form or any other writing in connection with the transaction.
Plaintiffs also quote from the opinion in Behniwal v. Mix the statement that "courts have found estoppel in cases where one spouse does not sign the agreement but merely orally consents to a sale." (133 Cal.App.4th at p. 1042, fn. 2, citing Wilk v. Vencill (1947) 30 Cal.2d 104.) However, in Wilk v. Vencill the wifes estoppel was based on promises she had made directly to the buyer which caused the buyer to change his position to his detriment. No comparable circumstances are present in this case.
The remaining causes of action for which the trial court granted JNOV—for negligence, intentional misrepresentation, concealment, and negligent misrepresentation —stand on a different footing. On these the trial court found, "After weighing the evidence, the court is convinced from the entire record, including reasonable inferences therefrom, that the jury found no liability by these defendants for the negligence and fraud claims in error. Plaintiffs have presented sufficient testimonial evidence at trial to support a finding of agency by ratification by these defendants. Defendants have presented no evidence to indicate a lack of benefit received from the negligent and fraudulent conduct of codefendants, or a lack of awareness of this benefit. Considering this evidence, the court finds that the jury clearly should have reached a different decision. [¶] . . . Alternatively, the court finds that the courts denial of plaintiffs request for jury instructions on agency with respect to the breach of contract, negligence and fraud claims constituted an error of law. Plaintiffs have presented sufficient testimonial evidence at trial to support a finding of agency by ratification by these defendants. Considering this evidence the court finds that it was error to deny the agency instructions requested by plaintiffs."
These last three were presented to the jury under the heading "Fraud." We presume these to be the causes of action to which the trial court referred when it granted JNOV on "the fraud causes of action."
We disagree with the trial courts analysis in two respects. As counsel acknowledged at oral argument, no written agency agreement is required to establish these causes of action. (Civ. Code, § 2309.) However, the trial courts conclusion that there was an agency by ratification rests on the premise that defendant wives voluntarily accepted the benefits of their husbands acts with knowledge of the material facts. (Civ. Code, § 2310; 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 141, pp. 185-186.) The courts explanation of its reasoning implies that it was defendants burden to negate their receipt of benefits from the fraudulently induced contract. But to the contrary, it was the plaintiffs burden to prove ratification (K. King & G. Shuler Corp. v. King (1968) 259 Cal.App.2d 383, 393, disapproved on other grounds by Liodas v. Sahadi (1977) 19 Cal.3d 278, 290, fn. 8; E. K. Wood Lumber Co. v. Moore Mill & Lumber Co. (9th Cir. 1938) 97 F.2d 402, 408-409.) While we do not dispute the likelihood that the wives received the benefits of the sale, the record in fact contains no such evidence.
Unlike the cases cited by plaintiffs for the proposition that an agency between spouses is ratified if one spouse accepts the benefit of a transaction entered into by the other (e.g., Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73; Stegeman v. Vandeventer (1943) 57 Cal.App.2d 753), here title to the property had been held in two family trusts. Plaintiffs ratification argument is based on their contention that defendant wives benefited by receiving "in their respective family trusts, the hundreds of thousands of dollars of profits from the lucrative sale." In support of this contention, plaintiffs cite William Spencers testimony that the proceeds of the sale were divided between the two trusts, and the closing statement from the sale which shows the sellers as "Pagagani [sic] Exchange Trust, fbo, Paganini Trust dated May 30, 2002 Kenneth A. Paganini and Jeannine Voix Paganini, Trustees and Spencer Exchange Trust, fbo, William D. and Claire A. Spencer 1995 Living Trust." However, neither trust is included in the record, and there is no other evidence of the terms or beneficiaries of those trusts. Defendant wives have been identified as cotrustees of their respective trusts, but other than surmise there is no evidence that they are beneficiaries. Plaintiffs argument here proceeds on the same mistaken premise as adopted by the trial court concerning the burden of proof: "Notably, appellants did not offer a copy of the trust into evidence showing any lack of benefit to the trustors, which is highly unlikely." There being no affirmative showing of benefit to defendant wives, the ratification theory fails.
The record fails to establish an agency by ratification, and it was therefore error to have granted JNOV.
New trial
Although the order granting JNOV cannot be upheld, the alternative order granting a new trial against the defendant wives was well within the trial courts discretion. The record contains some evidence that the disclosures that were made to the plaintiffs were made on behalf of and with the authorization of defendant wives. If an agency relationship were established, the defendant wives would bear liability for the misstatements. With an inapplicable exception, "a principal is responsible for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal." (Civ. Code, § 2338.) "[W]here the agent for the seller induces the buyer to purchase the property in reliance on his or her intentional or negligent misrepresentations, the seller is liable to the buyer for the agents fraud, even though the principal is innocent of any wrongdoing and was unaware of the misrepresentation." (2 Miller & Starr, Cal. Real Estate, supra, § 3.51, p. 287, fns. omitted; Macco Construction Co. v. Fickert (1946) 76 Cal.App.2d 295 [wife liable for husbands misrepresentations].) Although pleaded in the complaint, the agency issue was withdrawn from the jury under the rather unorthodox understanding recited above, which the court later concluded was an error of law. Under these circumstances, there being no evidence disputing that which indicated an agency relationship, the court did not abuse its discretion in granting a new trial on the claims against the defendant wives, limited to the issue of vicarious liability. (E.g., McCown v. Spencer (1970) 8 Cal.App.3d 216, 229-230.) "The trial judge is familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial. Where error on some other ground is established, his discretion in granting a new trial is seldom reversed. The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial, or some other ground was compelling. Review is limited to the inquiry whether there was any support for the trial judges ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion." (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 143, p. 644.)
William Spencer was asked whether "at all times during the construction work done on the property, you basically relied on [Kenneth Paganini] to represent you and Mrs. Spencers interest as sellers?" He replied, "Yes." And when asked, "given that relationship, during the sale of the property, you and Mrs. Spencer relied on Ken to act on your behalf as sellers as well?" he replied, "I suppose." Asked whether Kenneth Paganini "always ha[d] full authority from you, as a partner and as a cousin, to act for you and Mrs. Spencer," he replied, "Sure." Jeanine Paganini testified that she acted "both as a seller along with Mr. Paganini and the Spencers and as a licensed agent." When asked, "In this instance . . . you filled out the disclosure form only as an agent because Ken took care of the disclosures on behalf of all of you as sellers, correct?" she answered, "Well, I had no knowledge of the property. So Ken completed the disclosure. Correct." When asked, "On behalf of all of you?" she answered, "I believe so."
Because on remand the only question concerning liability that will remain is whether the defendant wives are personally liable because they authorized or ratified the conduct on which their husbands personal liability was based, or are estopped from denying such authorization or ratification, there will be no occasion to consider Probate Code section 18001.
Since there must be a limited new trial on the claims against the defendant wives, the orders denying their motion to strike costs and awarding attorney fees must also be vacated. These matters may properly be considered in light of the final disposition of the claims against them.
DISPOSITION
The appeal of defendants Kenneth Paganini and William Spencer is dismissed. The judgment against defendants Jeannine Paganini and Claire Spencer is reversed and the matter is remanded to the trial court for further proceedings in conformity with this opinion. The parties shall bear their respective costs on appeal.
We concur:
McGuiness, P. J.
Siggins, J.