Panoutsopoulos v. Karsant
Filed 2/27/08 Panoutsopoulos v. Karsant CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
NICHOLAS PANOUTSOPOULOS et al., Plaintiffs and Respondents, v. PETER KARSANT, Defendant and Appellant. | A114196 (San Francisco County Super. Ct. No. 4313681) |
Plaintiffs Nicholas and Ekaterine Panoutsopoulos leased property from the Karsant Family Limited Partnership. On March 14, 2004, plaintiffs filed a complaint against Peter Karsant (Karsant), the managing general partner of the partnership, seeking damages for willful interference with quiet possession of business premises and intentional infliction of emotional distress. Plaintiffs later filed a petition under Civil Code section 1714.10, seeking leave to pursue causes of action for civil conspiracy between Karsant and his attorneys, Denise Chambliss, Susan Doyle and the Law Offices of Doyle & Associates (the attorneys).[1] The trial court granted the petition.
The attorneys appealed from the order granting the petition. On November 28, 2007, we reversed the trial courts order. (Panoutsopoulos v. Chambliss (2007) 157 Cal.App.4th 297.) In the meantime Karsant, who had not personally responded to the petition in the trial court, has filed his own appeal from the order granting the petition. Our decision in the earlier appeal effectively renders Karsants appeal moot except for the single issue of whether Karsant is entitled to appeal at all. Plaintiffs contend he cannot, pointing out he did not file his own opposition to their petition, asserting he therefore lacks standing to appeal or at least that he waived the point.
Code of Civil Procedure section 902 provides, simply, Any party aggrieved may appeal . . . . Karsant is a party aggrieved in that the order granting the petition both paved the way for plaintiffs to add causes of action of conspiracy involving Karsant to the complaint, and also because Karsant has been compelled to obtain new counsel. Karsant cannot be deemed to have waived the right to appeal on the grounds that he complied with the order or accepted its benefits (see Hellman Commercial T. & S. Bk. v. Alden (1929) 206 Cal. 592, 599; Lee v. Brown (1976) 18 Cal.3d 110, 114), as he has done neither. At most, he failed to object to the petition. A failure to object can act as a waiver, the general rationale being it is unfair to the trial judge and the adverse party to take advantage of an error on appeal when it could have been corrected at trial. (Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) This rationale does not exist here, where the petition was opposed and the issue therefore was squarely before the trial court.
Plaintiffs cite Decker v. U. D. Registry, Inc. (2003) 105 Cal.App.4th 1382, where the court considered whether one party, Saltz, had standing to appeal from an order denying a special motion to strike a complaint as a SLAPP (strategic lawsuit against public participation). Saltz had not brought his own motion to strike, but had joined in a motion filed by another party, UDR. The appellate court held Saltzs conduct of joining in UDRs motion does not alone constitute a motion. (Id. at p. 1391.) It then ruled, Saltz did not bring his own special motion to strike, he is not boundfor better or for worseby the order denying UDRs motions. He also has no standing to appeal. (Ibid.) The reason Decker lacked standing to appeal had little to do with his failure to object to the trial court proceedings. Rather, he lacked standing because he was not a party aggrieved by the trial courts ruling, which did no more than deny another partys motion to strike and had no binding effect on him. Here, in contrast, the order granting plaintiffs petition directly affected Karsant, the purported coconspirator. It follows that Karsant was a party aggrieved and therefore had standing to appeal despite his failure to file his own motion.
Conclusion
We find Karsant had standing to file the appeal. As the order from which Karsant appeals already has been reversed, we take no further action on it, but remand the matter to the trial court for further proceedings consistent with our decision in Panoutsopoulos v. Chambliss, supra, 157 Cal.App.4th 297. Karsant is awarded his costs on appeal.
_________________________
STEIN, J.
We concur:
_________________________
MARCHIANO, P. J.
_________________________
MARGULIES, J.
Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
Panoutsopoulos. v. Karsant (114196)
[1] Civil Code section 1714.10 limits a partys ability to plead a cause of action against an attorney for civil conspiracy with the attorneys client, requiring the party to obtain an order allowing the pleading. In order to obtain such an order, the party is required to establish there is a reasonable probability the party will prevail in the action. (Civ. Code, 1710.14, subd. (a).)
