Stephens & Stephens XII LLC v. Fireman’s Fund Insurance Co.

STEPHENS & STEPHENS XII, LLC,

Plaintiff and Appellant,

v.

FIREMAN'S FUND

INSURANCE CO., et al.,

Defendants and Respondents.

Nos.  A135938; A136740

San Francisco County Super. Ct.

Nos. CGC10502891 and

CGC10502891

California Courts of Appeal

First Appellate District

Division One

Filed December 17, 2014

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

CERTIFIED FOR PARTIAL PUBLICATION

^* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part DISCUSSION, A.2.B., C.

BY THE COURT:

     The opinion filed November 24, 2014, is modified by deleting footnote 12 and replacing it with the following:

   We asked the parties for supplemental briefing on the propriety of a conditional judgment. In the supplemental briefing, both parties argue that such a judgment would be improper because Stephens XII recently sold the property.  We disagree.  Fireman?s Fund?s potential liability in the event of any such sale was not litigated below and, as a reviewing court, we must generally disregard matters occurring after the entry of the appealed judgment.  (Troung v. Nguyen (2007) 156 Cal.App.4th 865, 882.)  Nor would any such sale moot the issues before us as Fireman?s Fund contends.  Regardless of any sale, the validity of the JNOV and the form of judgment remain live issues between the parties, and entry of a conditional judgment in favor of Stephens XII may affect other relief available to the parties, such as costs.

     The modification does not change the appellate judgment.  (Cal Rules of Court, rule 8.264(c)(2).)  Appellant?s petition for rehearing is denied.

P.J.

Trial Court:

     San Francisco County Superior Court

Trial Judge:

     Honorable Curtis E.A. Karnow

Counsel for Appellant:

     Daniel Upham Smith; Valerie T. McGinty; Nina Grigoryevna Shapirshteyn

Counsel for Amicus Curiae United Policyholder on behalf of Appellant:

     Sharon Joellen Arkin

Counsel for Respondent:

     Rex S. Heinke; Reginald D. Steer; Ashley Brooke Vinson; Teresa W. Ghali; Danielle Crockett