Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG-07-337778
ORDER MODIFYING OPINION AND DENYING REHEARING
It is ordered that the opinion filed herein on April 30, 2009, be modified as follows: On page 4, at the end of the last sentence in footnote 3, add the following sentence:
Although “matters of law which will support the trial court’s ruling may be considered on appeal even when they are not presented to the trial court” (Barczewski v. Commonwealth Land Title Ins. Co. (1989) 210 Cal.App.3d 406, 410), it is not appropriate to do so in this case because Ecology Control never had an opportunity to present any extrinsic evidence relevant to interpretation of the Agreement (see Winet v. Price (1992) 4 Cal.App.4th 1159, 1165).
so that footnote 3 reads as follows:
3 For the first time on appeal, Barfield contends that, under the Agreement, the parties had no obligations under the arbitration provision after the termination of Barfield’s employment. We will not consider this argument, which Barfield could have presented below. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592.) Although “matters of law which will support the trial court’s ruling may be considered on appeal even when they are not presented to the trial court” (Barczewski v. Commonwealth Land Title Ins. Co. (1989) 210 Cal.App.3d 406, 410), it is not appropriate to do so in this case because Ecology Control never had an opportunity to present any extrinsic evidence relevant to interpretation of the Agreement (see Winet v. Price (1992) 4 Cal.App.4th 1159, 1165).
Respondent’s petition for rehearing is denied.
There is no change in the judgment.