Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC368210. Michael C. Solner, Judge.
Shuai & Associates and Yee-Horn Shuai, for Defendant and Appellant.
Law Offices of Jason Yang and Jason J.L. Yang, for Plaintiff and Respondent.
RUBIN, J.
INTRODUCTION
Kevin Yang sued appellant Phihong Technology Co., Ltd., for breach of oral contract for failing to deliver 90, 000 shares of appellant’s stock, allegedly promised to him to encourage him to stay in appellant’s employment. After a court trial, the judge issued a statement of decision finding no oral contract existed between the parties, but concluded that appellant nevertheless owed Yang 30, 000 shares as a stock bonus. We affirm.
FACTS AND PROCEDURAL HISTORY
In late 2000, appellant Phihong Technology Co., Ltd., hired respondent Kevin Yang as vice president for its operations in Taiwan. In 2002, Yang told appellant’s president that he (Yang) was leaving the company to return to the United States. Yang testified that during the conversation, the president offered Yang as an inducement to stay with the company 30, 000 shares of company stock for each additional year that Yang continued to work for appellant. Based on the president’s offer, Yang claims he postponed returning to the United States. In the meantime, in June 2004, appellant’s general manager, Jack Kuo, sent Yang an email stating 30, 000 shares of stock had been set aside for him for his performance in 2003.
Yang resigned from appellant in mid-2005 without receiving any of the purportedly promised stock, including the 30, 000 shares set aside. Yang thereafter sued appellant for breach of an oral contract. In a bench trial, Yang asserted he was entitled to 90, 000 shares of stock for the three years between 2002 and 2004, and that the Kuo email confirmed Yang had an oral contract with appellant. Appellant, in contrast, denied having entered into any oral contract with Yang. At the trial’s conclusion, the court issued a statement of decision finding no oral contract existed for delivery of 90, 000 shares of stock and, even if such a contract had existed, the two-year statute of limitations for breach of an oral agreement barred Yang’s claim. The court found based, however, upon Kuo’s email that appellant had awarded Yang 30, 000 shares as a stock bonus for 2003. The court therefore entered judgment for Yang for breach of contract regarding the 30, 000 shares. This appeal followed.
DISCUSSION
Appellant urges that we reverse the trial court’s judgment because it supposedly violated legal principles governing variance between the cause of action Yang alleged in his pleadings and the legal theory the court relied upon in entering judgment for Yang. Appellant notes that Yang pursued recovery of 90, 000 shares of stock under a theory of breach of oral contract, but the court awarded 30, 000 shares to Yang as a stock bonus.
Appellant’s contention fails because it did not object at trial to the purported variance. (Colbert v. Colbert (1946) 28 Cal.2d 276, 281; Schweitzer v. Westminster Investments (2007) 157 Cal.App.4th 1195, 1214.) Here, appellant did not object to the legal theories argued either during trial or after the court issued its statement of decision. Appellant did not move for a new trial or nonsuit and never told the court about the perceived variance. Appellant thus failed to preserve the issue for appeal.
In any case, even if appellant had preserved the issue, appellant must show the variance between the pleadings and the proof was material, meaning that the variance misled appellant to its prejudice in defending itself at trial on the merits. (Code Civ. Proc., § 469; Hayes v. Richfield Oil Corp. (1952) 38 Cal.2d 375, 382; Schweitzer, supra, 157 Cal.App.4th at p. 1214.) Appellant fails to show prejudice because the matter of the 30, 000 shares was explored at trial. Yang presented his theory that the shares were part of the alleged oral agreement to induce him to stay with the company. Appellant opposed this theory, and argued that the shares were an undelivered gift for the year 2003. Ultimately, the judge rejected both theories and awarded the stock as a bonus that had, in fact, been set aside for Yang. Because the circumstances surrounding the shares were litigated, and both sides had the opportunity to present their evidence and arguments, the fact that the pleadings had not alleged that the shares were a stock bonus did not prejudice appellant. (Hayes, supra, at p. 382 [“a variance may be disregarded where the action has been as fully and fairly tried on the merits as though the variance had not existed”].)
DISPOSITION
The judgment is affirmed. Respondent Kevin Yang to recover his costs on appeal.
WE CONCUR: BIGELOW, P. J., GRIMES, J.