Secarea v. Regents of UC
Filed 12/22/08 Secarea v. Regents of UC CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
VALER V. SECAREA, JR., Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. | G037651 (Super. Ct. No. 05CC10019) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT |
It is ordered that the opinion filed herein on November 20, 2008, be modified as follows:
On page 8, at the conclusion of the first full paragraph, after the sentence ending with deem the argument waived, add as footnote 5 the following footnote, which will require renumbering of the subsequent footnote:
5Of course, plaintiffs failure to raise the issue in opposition to Irvine Regionals summary judgment motion does not foreclose plaintiff from raising the issue in future proceedings, including trial.
On page 10, delete the second sentence of the third paragraph which begins Plaintiff, however, never filed any objections to Natales declaration and replace it with the following sentences:
Plaintiff, however, never raised this objection either in writing or orally at the summary judgment hearing. Plaintiff asserts the trial court refused to allow any evidentiary objections during oral argument, thus preventing the issue from being raised. Not so. A review of the hearing transcript reveals the trial court gave plaintiffs counsel substantial time to argue all of the points he desired before ruling. Indeed, after extensive argument and discussion, the court told counsel Ill give you the last bite of the apple . . . . Later, the court invited counsel: [I]f you want to make a record, Ill be more than happy to let you do so. Yet counsel remained silent regarding any defects in the Natale declaration. After the trial court had ruled on the summary judgment motion, defendants noted that plaintiff may appeal the ruling and asked the court to rule on their previously filed evidentiary objections. After complying with defendants request, plaintiffs counsel stated: Your honor, would it be, at this point, that we can argue the evidentiary objections? The court responded: I dont argue evidentiary objections. I just go ahead and read the paperwork, look at the objections and rule on them, so because otherwise, we have speaking objections, and I dont do that. Significantly, plaintiffs counsel requested the opportunity to argue objections, and never informed the court he wished to make new objections. Because plaintiff failed to raise the defect in the Natale declaration in the trial court, we conclude plaintiff failed to preserve this issue for appeal.
This modification does not change the judgment. The petition for rehearing is DENIED.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING, P. J.
IKOLA, J.
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