Stonegate Riverside, LLC v. Paik

Full title: STONEGATE RIVERSIDE, LLC, Plaintiff and Appellant, v. YOUNG J. PAIK et…

Court: California Court of Appeals, Third District, Yolo

Date published: Apr 16, 2010

C059328, C060640 (Cal. Ct. App. Apr. 16, 2010)

Opinion

STONEGATE RIVERSIDE, LLC, Plaintiff and Appellant, v. YOUNG J. PAIK et al., Defendants and Respondents. C059328, C060640 California Court of Appeal, Third District, Yolo April 16, 2010

NOT TO BE PUBLISHED

Super. Ct. No. CV061828

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

In the unpublished opinion in this case, filed on March 29, 2010, on page 19, after line 18, insert the following as separate paragraphs:

In a petition for rehearing, the Paiks argue that affirming the judgment in favor of Young and Sue Paik’s adult children would not (as suggested in our opinion) involve an impermissible grant of summary adjudication of issues where such adjudication was not requested in the trial court. The Paiks argue the children were separate parties entitled to summary judgment on the entire complaint, because they never signed the purchase agreement. However, complete removal of the children from the lawsuit would not be appropriate, because the Paik children are proper parties defendant by virtue of their part ownership of a small piece of the land that is the subject of this lawsuit. (Code Civ. Proc., § 379, subd. (a)(2) [all persons may be joined in one action as defendants if there is asserted against them a claim, right, or interest adverse to them in the property which is the subject of the action].)

That the children never signed the contract does not necessarily establish, as a matter of law, that Stonegate cannot assert a claim adverse to the children’s interest in the property. The Paiks’ respondents’ brief claimed it was undisputed that (1) Young and Sue Paik never had written authorization to sell their children’s interest in the property, and (2) the children had no dealings whatsoever with Stonegate or its principal, Al Smith. However, Stonegate’s opposition to summary judgment did dispute these factual assertions and challenged the Paiks’ evidence as deficient in that (1) the children’s declarations were silent regarding written authorization, while Young Paik did not say he never had authorization but only that he and his wife did not have written authorization when they signed the contract; and (2) Al Smith testified in deposition that one of the Paik sons attended one of the meetings in which the deal was discussed. The Paik children are not entitled to summary judgment.

This modification does not change the judgment.

The Paiks’ petition for rehearing is denied.

SIMS, Acting P. J., RAYE, J., HULL, J.