Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. Nos. 2002052251, RG03082676
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT
It is ordered that the opinion filed herein on December 14, 2007, be modified as follows:
1. On page 3, footnote 3 is deleted, which will require renumbering of all subsequent footnotes.
2. On page 7, between the third full paragraph, beginning “Because the only evidence,” and the commencement of part II. on page 8, add the following four paragraphs:
North Oakland Medical Clinic v. RogersAlthough an appellate court generally may affirm the trial court ruling on any correct theory, a respondent cannot assert a new theory on appeal if doing so would unfairly prejudice appellant by depriving him or her of the opportunity to litigate an issue of fact. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 8:241, p. 8-140; see 14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1403, fn. 1).
Furthermore, whether Custom Spray is entitled to interest under section 3287 depends on unresolved factual issues. Under section 3287, subdivision (a), a party is entitled to interest only if the damages are “certain, or capable of being made certain by calculation,” and “the right to recover . . . is vested in him upon a particular day.” There is no evidence in the record of the date on which Custom Spray’s right to recovery of the retention vested.
There is no change in the judgment.
Respondent’s petition for rehearing is denied.