Desimoni v. Brusco

Opinion

ELKINGTON, J. Defendants Charles H. Brusco (Brusco), Wera E. Mitchell, and Cornerstone Management Company, appeal from a “judgment after trial by court entered on August 27,1985,” in favor of plaintiffs Michael DeSimoni (DeSimoni), Theresa DeSimoni, and Glenn Nobmann. The appeal concerns the interpretation of a partnership agreement among the parties who were “Class A” partners.

The partnership became the owner of a large apartment complex, and the partnership agreement provided for employment of a “Managing Partner.” It recited, “Brusco, [one of the Class A partners, and now the principal defendant in this action] is appointed Managing Partner for this purpose.” After about three years, a majority (75%) of the class A partners voted to remove Brusco as managing partner, and DeSimoni was so employed in his stead. Brusco refused to accept his removal, and rejected requests that he turn over the books and records of the apartment complex to DeSimoni. This action and appeal followed.

[916]Brusco contends that his removal as managing partner would be in contravention of the partnership agreement. He relies on Corporations Code section 15018, subdivision (h), which in part states: “... [N]o act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners.”

The plaintiff Class A partners argue that Brusco’s removal as managing partner was in accord with, and not in contravention of, the proper interpretation of the partnership agreement.

We find ourselves in agreement with the plaintiff Class A partners, and with modification as to attorney fees, we shall affirm the superior court’s judgment. Our reasons follow.

We note initially that no extrinsic evidence was adduced in respect of the partnership agreement’s interpretation, by the parties. It therefore becomes our function to interpret it “according to the generally accepted canons of interpretation,” without regard to the ruling of the superior court. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866 [44 Cal.Rptr. 567, 402 P.2d 839].)

We first consider the relevant statutory law.

Labor Code section 2922, as here material, provides: “An employment, having no specified term, may be terminated at the will of either party... Here, Brusco’s employment under the partnership agreement had no specified term.