Filed 7/15/15 Central Korean Evangelical Church v. Super. Ct. CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




CENTRAL KOREAN EVANGELICAL                                                    B260831
CHURCH et al.,
                                                                              (Los Angeles County
                    Petitioners,                                              Super. Ct. No. BC456826)

          v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

                    Respondent;

PACIFIC SOUTHWEST DISTRICT OF
THE CHURCH OF THE BRETHREN,

                    Real Party in Interest.


          ORIGINAL PROCEEDINGS in mandate. Mark V. Mooney, Judge. Petition
granted.
          Law Offices of Steven C. Kim & Associates, Steven C. Kim and Gabriel
Colorado, for Petitioners.
          No appearance for Respondent.
          Gorman & Miller, Kenneth L. Heisz, for Real Party in Interest.
                                         ______________________________
       In this mandate proceeding, petitioners Central Korean Evangelical Church
(CKEC) and its pastor Jang Kyun Park challenge orders made on remand from a previous
appeal, Pacific Southwest District of the Church of the Brethren v. Church of the
Brethren, Inc. (June 23, 2014, No. B247729 [nonpub. opn.]). Petitioners argue the trial
court improperly appointed a partition referee and reopened issues resolved in a judgment
that had been partially affirmed on appeal. In its return to the petition, Real Party in
Interest Pacific Southwest District of the Church of the Brethren (PSWD) points out that
a partition action cannot be maintained since, in the prior appeal, we held that the parties
do not have a common undivided interest in the church property at issue in this case. We
agree with PSWD that partition cannot be had, and for that reason alone we grant the
petition.


                    FACTUAL AND PROCEDURAL SUMMARY
       The subject property consists of two adjoining parcels. Parcel 1 is comprised of
lot 44, on which the church parking lot is located. Parcel 2, on which the church building
stands, consists of lots 48 and 49. Park has owned lots 48 and 49 as trustee for CKEC
since 1985. In 1989, CKEC was accepted as a member congregation of the Church of the
Brethren at PSWD’s district conference.
       PSWD acquired Lot 44 in its own name in 1990. In May 1992, officers of CKEC
executed a “Covenant and Agreement to Hold Property as One Parcel” (“covenant”), in
which they agreed that lots 44, 48, and 49 “shall be held as one parcel and no portion
shall be sold separately.” The covenant was executed for the purpose of creating a
building site, and by its terms “shall continue in effect until released by the authority of
the Superintendent of Building of the City of Los Angeles upon submittal of request,
applicable fees and evidence that [the covenant] is no longer required by law.” In
December 1992, PSWD transferred lot 44 to itself and CKEC.
       CKEC voted to disassociate from the Church of the Brethren in 2007. In 2011,
PSWD sued CKEC for breach of trust under Corporations Code section 9142, and sought
injunctive and declaratory relief. It took the position that the Church of the Brethren’s

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governing document, “Manual of Organization and Polity” (“manual”), impressed a trust
on local church property in favor of the general church. CKEC cross-complained for
partition by sale, on the ground that CKEC and PSWD each owned a 50 percent
undivided interest in parcel 1 based on the 1992 deed, which transferred title to both.
CKEC disputed PSWD’s claim that the church property was held in trust for the Church
of the Brethren and sought to quiet title. Church of the Brethren, Inc. (COBI), a church
administrative agency that had issued a loan to CKEC, was named as a defendant in the
operative complaint and cross-complaint.
          After a bench trial, the trial court entered judgment in favor of CKEC. It
determined that Park owned parcel 2 (lots 48 and 49), which he held in trust for the
benefit of CKEC, and CKEC and PSWD owned parcel 1 (lot 44) jointly, as tenants in
common. The court also determined that a sale of the church property and division of the
proceeds would be more equitable than division in kind. The property was ordered to be
sold to CKEC’s tenant for $2.5 million, unless PSWD obtained a better offer within 90
days. The judgment provided for the parties’ respective shares in the proceeds, their
rights to rents and reimbursements, and CKEC’s repayment of the COBI loan. PSWD
and COBI appealed, and the trial court proceedings were stayed.
          On appeal, we held that the manual created an enforceable trust in favor of the
Church of the Brethren in lot 44, but not in lots 48 and 49. We directed the trial court to
redetermine the parties’ relative share in any sale proceeds on remand. Since no issues
were raised with regard to the procedure the trial court adopted for the sale of the
property, we affirmed the portion of the judgment ordering the partition sale. (Pacific
Southwest District of the Church of the Brethren v. Church of the Brethren, Inc., supra, at
p. 17.)
          On remand, petitioners moved for entry of a modified judgment, and PSWD filed
an ex-parte application urging the trial court to follow the partition statute (Code Civ.
Proc., § 872.010 et seq.). On November 25, 2014, the court ordered that the original
judgment be treated as an interlocutory judgment of partition under the partition statute
(id., § 872.720, subd. (a)), and that the procedures of that statute be followed. CKEC

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filed its petition seeking relief from the order. On January 12, 2015, the trial court issued
an interlocutory judgment of partition and an order appointing a partition referee.
       In April 2015, we issued an alternative writ of mandate and order to show cause,
and we temporarily stayed proceedings in the trial court.


                                       DISCUSSION
                                              I
       In its return, PSWD argues that as a result of our opinion in the prior appeal
CKEC lacks standing to maintain an action for partition. Petitioners in turn contend that
PSWD has waived all challenges to the partition sale by failing to raise them in the trial
court or on appeal. Lack of standing, however, is a jurisdictional issue that may be raised
at any time in the proceeding. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d
432, 438.) It goes to the existence of a cause of action and CKEC’s right to relief.
(Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604.) If as a result of our
previous opinion CKEC is not entitled to maintain a partition action, then the trial court
no longer has authority to order a partition sale. (See Dabney v. Dabney (2002) 104
Cal.App.4th 379, 383 [“The court has no fundamental jurisdiction to order someone to
transfer an interest in . . . land simply because it seems like a good idea under the
circumstances”].)
       PSWD asks that we reconsider our disposition of the previous appeal, which
affirmed the portion of trial court’s judgment ordering a partition sale. (Pacific
Southwest District of the Church of the Brethren v. Church of the Brethren, Inc., at p. 17.)
Under the law of the case doctrine, a reviewing court ordinarily will not reconsider the
merits of its prior opinion. (Clemente v. State of California (1985) 40 Cal.3d 202, 211–
212.) The doctrine provides that principles or rules of law necessarily stated in a prior
appellate decision become the law of the case and must be followed by the trial court in
the same case and in any subsequent appeal. (Id. at p. 211.) The doctrine applies even
though the prior decision is erroneous, but a reviewing court may depart from it in
exceptional circumstances, such as when a manifest misapplication of existing principles

                                              4
would result in substantial injustice. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482,
490–491.)
       In the interest of justice, we agree to consider whether the disposition of the prior
appeal is inconsistent with our holding.
                                              II
       The partition statute authorizes co-owners of personal property or of “an estate of
inheritance, an estate for life, or an estate for years in real property” to commence and
maintain a partition action. (Code Civ. Proc., § 872.210, subd. (a).) Co-owners of
undivided interests in real property, such as joint tenants or tenants in common, may
therefore seek partition. (Estate of England (1991) 233 Cal.App.3d 1, 4 [joint tenancy
requires unity of interest, time, title, and possession; tenants in common have separate but
undivided interests in property]; see also Milian v. De Leon (1986) 181 Cal.App.3d 1185,
1195–1196; 5 Miller & Starr, Cal. Real Estate (3d ed. 2006) § 12:1, fns. omitted
[‘“Cotenancy’ is the legal term commonly used to designate ownership by several
persons of undivided interests in real property, as opposed to ownership in ‘severalty,’
which designates ownership by individuals of separate parcels or portions of parcels. The
cotenants own the property by one joint title and in one right, and thus have one common
freehold”].)
       The partition action in this case was justified solely because the trial court found
that PSWD and CKEC owned lot 44 as tenants in common based on the 1992 deed, by
which PSWD transferred lot 44 to itself and CKEC. But as we explained on appeal, the
manual provides that local church property is held in trust for the benefit of the Church of
the Brethren, and when a local church votes to disassociate, title to its property vests in
the district board, which can sell or otherwise dispose of it at its own discretion. (Pacific
Southwest District of the Church of the Brethren v. Church of the Brethren, Inc., at p. 4.)
We held that the manual created an enforceable trust in lot 44, regardless of the 1992
deed. (Id. at pp. 15, 17.) But we held that PSWD was estopped from asserting a trust
over lots 48 and 49 because CKEC joined the Church of the Brethren on assurances that
its pre-existing property would not be subject to the trust. (Id. at p. 15.) From our

                                              5
holding, it follows that CKEC has no ownership interest in lot 44 (parcel 1), and PSWD
has no ownership interest in lots 48 and 49 (parcel 2). Because there is no common
undivided interest in either parcel, Petitioners cannot maintain a partition action.
       Petitioners propose that a common interest exists because of the covenant to hold
the three lots as one parcel, which CKEC’s officers signed in May 1992. They cite no
authority for this proposition. The covenant was not and cannot be the basis for the
partition action because it does not create undivided co-ownership interests in all three
lots. Its sole apparent purpose is to create a joint building site on CKEC’s promise that
the lots would not be sold separately. Unless released by the City of Los Angeles, the
covenant binds CKEC, but on its face it does not bind PSWD. Thus, while it may
provide an incentive to cooperate in a joint sale of the three lots, the covenant does not
entitle CKEC to force a partition sale.


                                      DISPOSITION
       The petition is granted, and the temporary stay is vacated. The trial court is
directed to vacate all judgments and orders related to partition or approving a partition
sale, and to enter a judgment declaring PSWD to be the sole owner of lot 44, and CKEC
to be the sole owner of lots 48 and 49. The parties are to bear their own costs related to
this mandate proceeding.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:




       WILLHITE, J.                               MANELLA, J.


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