Opinion
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161 Cal.App.4th 1513a __ Cal.Rptr.3d__ SANDRA FERRARO, Plaintiff and Appellant, v. SUSAN CAMARLINGHI et al., Defendants and Respondents. H030890M California Court of Appeal, Sixth District April 24, 2008Santa Clara County Super. Ct. No. CV064293
[Modification of opinion (161 Cal.App.4th 509;___Cal.Rptr.3d___), upon denial of rehearing.]
THE COURT:
RUSHING, P.J.
It is ordered that the opinion filed herein on March 27, 2008 (161 Cal.App.4th 509;___Cal.Rptr.3d___), be modified as follows, and the petition for rehearing is DENIED:
1. On page 36 [161 Cal.App.4th 543, advance report, 2d full par., lines 9-14], lines 10, the language starting with “Far from challenging” and ending with “actual rationale” is deleted and the following is inserted in its place:
Far from challenging this order, respondents happily relied upon it not only as a basis for an award to them of $1,800 in sanctions, but as another instance where, as their counsel told Judge Elfving, yet another judge had “rejected the same arguments and the same authorities that Sandra has cited in her points and authorities in opposition to her motion to strike her complaint in this action.”
2. At the end of the last paragraph on page 36 [161 Cal.App.4th 543, advance report, 2d full par., line 14] after the sentence ending “complaint in this action” add as footnote 24 the following footnote, which will require renumbering of all subsequent
In our original opinion we suggested that when counsel included this order among 18 exhibits to his declaration before Judge Elfving, he left out its third page, which states its actual rationale. The third page did not appear in the clerk’s transcript, and its omission by counsel appeared consistent with his omission of the exhibits to Mr. Mezzetti’s declaration when he submitted that document to us at our direction. In a petition for rehearing, however, counsel challenges our characterization of his conduct toward Judge Elfving, insisting that he filed the order in its entirety. In addition to submitting a declaration to that effect, he requests judicial notice of related documents including his proof of service of the declaration to which the order was attached. He points out that although the proof of service bears its own “filed” endorsement by the superior court clerk, it too is missing from the transcript on appeal and from the superior court’s file. He surmises that the last pages of his
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declaration were lost during preparation of the record on appeal. While we can think of other explanations for this evidence, these circumstances raise enough questions about counsel’s conduct on this occasion to warrant withdrawal of our original characterization.
The respondent’s petition for rehearing is denied.
There is no change in the judgment.