Wong v. Jamerson
Filed 12/12/08 Wong v. Jamerson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
DOUGLAS WONG ET AL., Plaintiffs and Respondents, v. LAFAYETTE JAMERSON, Defendant and Appellant. | A118107 (City & County of San Francisco Super. Ct. No. 444489) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] |
THE COURT:
It is ordered that the opinion filed herein on November 14, 2008, be modified as follows:
1. On page 10 of the opinion, add the following paragraph before section I:
We review the trial courts ruling, not its rationale; thus, we are not bound by the trial courts stated reasons for granting summary judgment. (Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1091.) The Code of Civil Procedure requires that, if we affirm on a ground not relied upon by the trial court, we must afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. (Code Civ. Proc., 437c, subd. (m)(2).) For the reasons stated below, we affirm on grounds not relied upon by the trial court. The parties addressed those grounds or had the opportunity to address them in their appellate briefs; they also addressed them in the trial court. Therefore, there is no need to afford them a further opportunity to address the issues in supplemental briefing. (See Code Civ. Proc., 437c, subd. (m)(2); Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal. App. 4th 1134, 1147, fn. 2.)
2. On page 19 of the opinion, add the following paragraph after the first full paragraph, which begins Defendant also argues the probate court entered an interlocutory order . . . .:
Defendant also contends the probate court ruling on the motion to quiet title could not have been a final dispositive order because an evidentiary hearing on a section 850 petition must include a trial or a full evidentiary hearing. He cites Dixon v. Superior Court, but that decision simply holds that disputed factual issues must be resolved at a full evidentiary hearing. (Dixon v. Superior Court (1987) 195 Cal.App.3d 758, 764.) Here, the court decided a legal issue: it determined that defendant failed to state a valid claim to title even assuming all of his factual allegations were true.
3. The first full paragraph on page 22 of the opinion shall be replaced with the following:
Further, we may take into consideration the probate courts clear intent to issue a ruling on the merits that would bring this to an end. Although a courts intention to make a decision a bar to future litigation is immaterial to our determination of the binding effect of the decision, a courts intention to make a decision on the merits is material to our determination of that issue. (See Goddard, supra, 14 Cal.2d at p. 54.) Here, the courts comment supports our conclusion that the ruling was on the merits and that it thus brought defendants title claim to an end insofar as the probate proceeding was concerned.
The modification does not change the Judgment. Respondents petition for rehearing is denied.
The opinion in the above-entitled matter filed on November 14, 2008, was not certified for publication in the official Reports. The request for publication is denied.
Dated: ___________ ___________________________________
Jones, P. J.
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