Eddy v. Temkin4/23/1985
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
Civ. No. B005978
1985.CA.40970 ; 167 Cal. App. 3d 1115; 213 Cal. Rptr. 597
April 23, 1985
RICHARD A. EDDY, PLAINTIFF AND RESPONDENT,
v.
WILLIAM H. TEMKIN, JR., ET AL., DEFENDANTS AND APPELLANTS
Superior Court of Los Angeles County, No. C371175, Robert I. Weil, Judge.
Louis H. Bernstein for Defendants and Appellants.
Gronemeier & Barker, Dale L. Gronemeier and Ira S. Rubin for Plaintiff and Respondent.
Opinion by Arguelles, J., with McClosky, Acting P. J., and Dunn, J., concurring.
Arguelles
Defendants and appellants William H. Temkin, Jr. (William, Jr.), and Normandie Towers, Ltd., (Normandie Towers), appeal from an order charging the partnership interest (Corp. Code, ยง 15028) of William Nemour in the Normandie Towers partnership with the unsatisfied amount of a judgment against Nemour and in favor of plaintiff Richard Eddy in the sum of $303,740.92.
Facts
On June 16, 1981, Eddy filed a petition for charging order with the Los Angeles Superior Court, alleging that on May 20, 1981, judgment was entered in San Diego County in favor of Eddy and against Nemour and other defendants; that this judgment was recorded in Los Angeles County, and remained unsatisfied; and that William, Jr., William, Sr., Ida, and Sheldon Temkin, and Nemour, were partners in Normandie Towers. Eddy requested the court to charge Nemour's interest in the partnership with the unsatisfied judgment.
Eddy's petition incorporated a certificate of limited partnership, recorded August 3, 1977, showing Nemour as a general partner entitled to $300,000 from Normandie Towers, a partnership formed to build and manage a senior citizens' project, and an amended certificate, recorded September 1, 1978, showing that Nemour had become a limited partner in Normandie Towers, but was still entitled to $300,000.
An order to show cause issued on Eddy's petition. No opposition was filed. However, on July 28, 1981, at the order to show cause hearing, William, Jr., presented his written, but unfiled, opposition to the charging order, alleging that Nemour had no interest in the partnership, and, in his declaration, stating that Nemour once had been a limited partner entitled to receive $300,000 at the time of distribution of the partnership, but that, "[since] September 1, 1978, as the building delay worsened," William, Jr., had bought out Nemour, and that by February 15, 1981, he had paid Nemour over $300,000. William, Jr., alleged that he had received an assignment of Nemour's partnership interest; and that on June 16, 1981, an amended certificate of limited partnership had been filed showing Nemour no longer had an interest in the partnership.
William, Jr., requested the court to hold a plenary hearing on the order to show cause.
The hearing was continued to permit discovery. Pending the continued hearing, Eddy conducted a number of depositions, and engaged in other discovery, but appellants made no efforts to conduct discovery.
On October 14, 1981, Eddy filed additional declarations, supported with references to depositions and documents obtained through discovery, in support of the charging order. He alleged on the basis of the discovered material that the certificate of limited partnership showing
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