Robins v. Roland

Full title: ROMOLA ROBINS et al., Plaintiffs, Cross-Defendants and Appellants, v…

Court: California Court of Appeals, Second District, First Division

Date published: Apr 7, 2008

No. B191659 (Cal. Ct. App. Apr. 7, 2008)

Opinion

ROMOLA ROBINS et al., Plaintiffs, Cross-Defendants and Appellants, v. ANTON ROLAND et al., Defendants, Cross-Defendants and Appellants, PHILIP VARDI, Defendant, Cross-Complainant and Appellant. B191659 California Court of Appeal, Second District, First Division April 7, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Super. Ct. No. LC 068574 Stephen D. Petersen, Judge

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

IT IS ORDERED that the opinion filed herein on March 7, 2008, be modified in the following particulars:

On page 7 of the typed opinion, delete the language in footnote 3 in its entirety, and in its place the following, so that footnote 3 now reads:

At oral argument, Mrs. Robins’ counsel expressed the concern that, without the power to dissociate, Mrs. Robins would have no means to extricate herself from the original overarching partnership. The concern is misplaced. The UPA provided that, upon dissolution, “any partner, his legal representative, or his assignee, upon cause shown, may obtain winding up by the court.” (Former Corp. Code, § 15037.) In addition, the UPA provided that, under certain conditions, if the partnership business continued after the retirement or death of a partner, then the retired partner or the personal representative of the deceased partner could obtain “as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership” as of the date of dissolution, plus either interest or a share of postdissolution profits. (Former Corp. Code, § 15042.) That remedy (which was never pleaded in this case) is unavailable now, however, given that Roland has elected to wind up the partnership business. (See Former Corp. Code, §§ 15041, 15042 [the section 15042 remedy applies only if the partnership business continues under the conditions set forth in subdivisions (1), (2), (3), (5), or (6) of section 15041, each of which requires that “the business is continued without liquidation of the partnership affairs”]; Glassell v. Prentiss (1959) 175 Cal.App.2d 599, 604-605 [the section 15042 remedy is unavailable once the remaining partners elect to liquidate the partnership business]; Pluth v. Smith (1962) 205 Cal.App.2d 818, 827-828 [similar].)

This modification does not constitute a change in the judgment.

The petitions for rehearing are denied.

MALLANO, Acting P. J. VOGEL, J. ROTHSCHILD, J.