Heggnes v. Risley

Full title: HARALD HEGGNES et al., Plaintiffs and Appellants, v. ROBERT L. RISLEY et…

Court: California Court of Appeals, Second District, Seventh Division

Date published: Jan 26, 2009

No. B204008 (Cal. Ct. App. Jan. 26, 2009)

Opinion

HARALD HEGGNES et al., Plaintiffs and Appellants, v. ROBERT L. RISLEY et al., Defendants and Respondents. B204008 California Court of Appeal, Second District, Seventh Division January 26, 2009

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Los Angeles County Super. Ct. No. LC075116

ORDER MODIFYING OPINION AND DENYING REHEARING (NO CHANGE IN JUDGMENT)

THE COURT:

It is ordered that the opinion filed herein on December 29, 2008 be modified as follows:

1. On page 11, delete the second sentence through the end of the first full paragraph, beginning with “But the Attorney Defendants fail to cite.” Replace it with the following:

“But the Attorney Defendants fail to cite to the record in support of their contention they made any such specific request and there was nothing further they could do (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [“it is counsel’s duty to point out portions of the record that support the position taken on appeal”; “[t]he appellate court is not required to search the record on its own seeking error.”]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [it is not the proper function of Court of Appeal to search the record on behalf of appellants or to serve as “backup appellate counsel”]), and the only statements made at the hearings are inadequate to prevent forfeiture.”

2. Add the following footnote at the end of the modified paragraph, which will require renumbering of all subsequent

“At the initial hearing on the summary judgment motion, the trial court indicated its tentative ruling was to grant the motion. Following argument, the court stated it was still inclined to grant the motion but gave the Heggneses an opportunity to submit additional evidence in opposition to the motion, permitted additional briefing and scheduled a new hearing date. Prior to the close of that initial hearing, the Attorney Defendants inquired, “May we have rulings on our objections to evidence today?” The court responded “no,” plainly indicating an intention to defer ruling on evidentiary objections until all the evidence was presented. At the subsequent hearing at which the court granted the motion, although the Attorney Defendants characterized the Heggneses’ evidence as hearsay, they failed to ask the court to rule on their objections, thus forfeiting their objections.”

Respondents’ petition for rehearing is denied. There is no change in the judgment.

PERLUSS, P. J. ZELON, J. JACKSON, J.