Noble v. Castro

Filed 1/29/08 Noble v. Castro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:

It is ordered that the opinion filed on December 31, 2007, be modified as follows:

1. Add a footnote (7) on page 20 at the end of the fifth line following the words and must be reversed.

Footnote 7 should read:

7. Castor contends in a petition for rehearing that our reversal has the effect of rendering the issue at large and that she should be given a second opportunity to prove her claim on remand. That is not correct. Castor had a full and fair opportunity to present her claim. The evidence she presented was insufficient as a matter of law. She is not now entitled to a second opportunity to prove her claim. (See, e.g., McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, 1661 [When the plaintiff has had full and fair opportunity to present the case, and the evidence is insufficient as a matter of law to support plaintiffs cause of action, a judgment for defendant is required and no new trial is ordinarily allowed, save for newly discovered evidence.] See also, Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1066; Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 833-834; California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1810.)

2. Renumber subsequent footnotes.

The petition for rehearing is denied. This order does not effect a change in the judgment.

Dated _____________ ________________________ P.J.

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