Opinion
Page 1043e
115 Cal.App.4th 1043e — Cal.Rptr.3d — JRS PRODUCTS, INC., Plaintiff and Appellant, v. MATSUSHITA ELECTRIC CORPORATION OF AMERICA, Defendant and Appellant. C041611. California Court of Appeal, Third District, Sacramento. February 25, 2004.APPEAL from a judgment of the Superior Court of Sacramento County, DeCristoforo, J. Super. Ct. No. 98AS04024. Reversed with directions.
Freidberg Law Corporation, Freidberg & Parker, Edward Freidberg, Stephanie J. Finelli, and Susanna V. Pullen for Plaintiff and Appellant.
Golenbock, Eiseman, Assor, Bell & Peskoe, Martin S. Hyman, Jeffrey T. Golenbock; Steefel, Levitt & Weiss, Daryl S. Landy and Aliya S. Gordon for Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on January 26, 2004, be modified as follows:
1. At the end of the first full paragraph on page 16, after the sentence ending "alleged breach of the JRS dealer agreement," the following language is added:
While Panasonic's demurrer to the eighth cause of action may not have been as specific as its argument on appeal, the viability of a tort claim is a question of law that could have been raised for the first time on appeal. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) In any event, a Court of Appeal is at liberty to reject a waiver claim and consider the issue on the merits. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167 [143 Cal.Rptr. 633].)
2. On page 16, the first sentence of the second full paragraph, beginning "Nevertheless, JRS attributes," is modified to read as follows:
JRS attributes an assortment of nefarious motives to Panasonic for failing to raise the issue again.
3. On page 17, the first full sentence, beginning "JRS cites no authority" and ending "to try the case on the tort claim," is deleted and the following sentence is inserted in its place:
Because the parties were aware of the issue and the appeal involves important questions of public concern regarding the Act, we will exercise our discretion to decide Panasonic's appeal on the merits.
There is no change in the judgment.
Appellants' petitions for rehearing are denied.