Miller Ave. Professional and Promotional Services v. Koss
Filed 10/20/09 Miller Ave. Professional and Promotional Services v. Koss CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
MILLER AVENUE PROFESSIONAL AND PROMOTIONAL SERVICES, INC., Plaintiff and Appellant, v. CHARLES A. KOSS et al., Defendants and Respondents. | MODIFICATION: NO CHANGE IN JUDGMENT A121128 (ContraCostaCounty Super. Ct. No. MSC03-00783) |
BY THE COURT:
It is ordered that the opinion filed herein on September 25, 2009 be modified as follows:
In the last paragraph on page 10, following the words in lieu of the July trial date, the sixth, seventh and eighth sentences (which continue onto page 11) are deleted, and the following sentences are substituted in their place: Kosss counsel advised the court that after the July 2007 trial date had been continued, he told Coy (whom he did not represent) that Coy did not have to appear as scheduled. Counsel did not recall whether he ever informed Coy of the new trial date, but he took no steps to secure Coys attendance at the December trial and he did not tell MAPPSs counsel he would do so. The trial court reasonably concluded that Coy had not been properly subpoenaed for the December 2007 trial and that Kosss counsel had made no representation and had taken no action that would obviate the need for a subpoena to secure Coys attendance.
At the end of the first full paragraph on page 11, ending with the words on that basis, the following text is added as footnote 3 of the opinion: In its petition for rehearing, MAPPS suggests that information about Coys testimony was presented to the trial court in proceedings that were not transcribed by the court reporter. This court has previously denied MAPPSs Motion for Order to Have the Superior Court Settle [a] Dispute Over an Omission in the Record. But even if we had granted that motion and accepted MAPPSs proposed narrative of the missing proceedings, that narrative did not include a description of the likely substance of Coys testimony.
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
Date________________________ ________________________, P.J.
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