Galaz v. Oshita
Filed 6/22/06 Galaz v. Oshita CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
| LISA KATONA GALAZ, Plaintiff and Respondent, v. MARIAN OSHITA, Defendant and Appellant. | B181278, B187428 (Los Angeles County Super. Ct. No. BC297015) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] |
THE COURT:
It is ordered that the opinion filed herein on May 30, 2006, be modified as follows:
On page 9, footnote 6, the last two sentences of the first paragraph are deleted and replaced with the following:
But Galaz's post-jury trial brief addressed the issue and it was argued on its merits at the January 26, 2005 hearing by both parties. Oshita has not established that any variance between the pleading and the proof was material or misled her. (See Lewis v. Hankins (1989) 214 Cal.App.3d 195, 201 [variance between the pleading and the proof will not be deemed material unless it has actually misled the adverse party to his prejudice].) Accordingly, the issue of rescission for lack of consideration was properly before the trial court.
There is no change in the judgment.
Appellant's petition for rehearing is denied.
MALLANO, J. SPENCER, P. J. VOGEL, J.
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