Ballon v. Womens Cancer Center
Filed 9/27/07 Ballon v. Womens Cancer Center CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
SAMUEL C. BALLON et al., Plaintiffs and Respondents, v. THE WOMENS CANCER CENTER, Defendant and Respondent; | H030369 (Santa Clara County Super. Ct. No. CV044375) |
NICOLA M. SPIRTOS et al., Appellants. |
Nine of the fifteen general partners in a general partnership filed an action for dissolution of the partnership. A stipulated judgment was entered dissolving the partnership. Five general partners who were not parties to the dissolution action purport to appeal from the stipulated judgment.[1] These nonparty partners never attempted to intervene in the trial court and never filed a motion to vacate the judgment. Accordingly, they lack standing to appeal from the judgment, and their purported appeal must be dismissed.
I. Background
On July 1, 2005, plaintiffs, who are nine of the fifteen general partners in defendant The Womens Cancer Center, filed a complaint for dissolution of the partnership. The sole named defendant was The Womens Cancer Center. The complaint alleged that the economic purpose of the partnership has been and is likely to continue to be unreasonably frustrated, and the nonparty partners have engaged and continue to engage in conduct relating to the partnership business that makes it not reasonably practicable to continue the partnership.[2] The complaint prayed for a declaration of dissolution.[3]
On July 29, 2005, defendant, represented by Sheppard Mullin Richter & Hampton (Sheppard), filed an answer to the complaint admitting all of the allegations.
On August 1, 2005, attorney Jon Eardley, purporting to represent defendant, filed a demurrer to the complaint.
On August 26, 2005, Sheppard, acting on behalf of defendant, filed a motion to disqualify Eardley. This motion was supported by declarations which established that Eardley did not represent defendant and Sheppard did represent defendant.
On September 6, 2005, Eardley, now purporting to represent defendant and defendant, Nicola Spirtos, one of the nonparty partners, filed a notice of removal of the action to federal court on diversity grounds.
On September 29, 2005, Sheppard, acting on behalf of defendant, filed a motion in federal district court to disqualify Eardley. On December 12, 2005, the federal district court granted the motion and disqualified Eardley.
In January 2006, the federal district court remanded the case to state court. It also entered an order awarding attorneys fees to plaintiffs against Eardley. In February 2006, Eardley, purporting to represent defendant, five of the nonparty partners, whom he characterized as parties in interest, and himself, filed a notice of appeal to the federal Court of Appeals from the attorneys fees order. He also apparently appealed from the disqualification order. His appeals were dismissed by the federal Court of Appeals due to its lack of jurisdiction.
In March 2006, plaintiffs and defendant moved in state court for entry of a stipulated judgment of dissolution. The stipulation was signed by Sheppard on behalf of defendant and by the attorney for plaintiffs. Eardley, again purporting to represent defendant, filed opposition to the motion.
In April 2006, Eardley, purporting to represent defendant, filed another demurrer. The demurrer was stricken on the ground that Eardley lacked the authority to file pleadings on behalf of defendant.
On May 3, 2006, the court entered the stipulated judgment dissolving the partnership. On June 30, 2006, Eardley, now purporting to represent only the five nonparty partners, filed a notice of appeal from the stipulated judgment.
II. Analysis
Only a party aggrieved may appeal. (Code Civ. Proc., 902.) [I]t is a well- established rule that only a person who is a party to the record can appeal. (Braun v. Brown (1939) 13 Cal.2d 130, 133.) The test is twofoldone must be both a party of record to the action and aggrieved to have standing to appeal. The first requirement, that one be a party of record, is subject to an exception under which a nonparty who moves to vacate the judgment is permitted to appeal as if he were a party. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342.)
Here, the nonparty partners were never parties to the record, never sought to intervene, and did not move to vacate the judgment. Consequently, the nonparty partners lack standing to appeal from the stipulated judgment, and the purported appeal must be dismissed.
III. Disposition
The appeal is dismissed.
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Mihara, J.
WE CONCUR:
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Bamattre-Manoukian, Acting P.J.
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Duffy, J.
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[1] The nonparty partners contend on appeal, among other things, that the partnership dissolution action should not have succeeded because the complaint failed to name every partner, and all partners were indispensable parties.
[2] A partnership is an entity distinct from its partners. (Corp. Code, 16201.) A partnership may be dissolved [o]n application by a partner if there is a judicial determination that . . . The economic purpose of the partnership is likely to be unreasonably frustrated . . . [or] Another partner has engaged in conduct relating to the partnership business that makes it not reasonably practicable to carry on the business in partnership with that partner. (Corp. Code, 16801.) A partner may maintain an action against the partnership or another partner for legal or equitable relief, with or without an accounting as to partnership business, to . . . [e]nforce . . . [t]he partners right to compel a dissolution and winding up of the partnership business under Section 16801 . . . . (Corp. Code, 16405.)
[3] The partnership agreement required an affirmative vote of 10 partners to dissolve the partnership without a judicial decree.
