Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc. (2001)

PLEASANT HILL BAYSHORE DISPOSAL, INC., Plaintiff and Respondent, v. CHIP-IT RECYCLING, INC., et al., Defendants and Appellants.

[Modification of opinion (91 Cal.App.4th 678) on denial of petition for rehearing with no change in judgment.]

REARDON, Acting P.J.-

It is ordered that the opinion filed herein on August 14, 2001, be modified as follows:

(1) On page 20, line 8 [91 Cal. App. 4th 697, advance report, 1st par., line 13], after the citation to the Evidence Code, add as footnote 14 the following footnote:

14 The sole point made by Chip-It in its petition for rehearing is that it did object to the declaration. What Chip-It deems its objection is a single sentence in a four-page "sur-reply." It attacked the declaration as "self-serving," lacking in foundation, and constituting "inadmissible hearsay"; it also characterized the declaration as purporting to interpret the legal meaning of documents, i.e., the franchise agreements. A part of the declaration did purport to interpret the documents, and to that extent Chip-It's objection was sound. We do not, however, recognize the objection as one relating to the factual representation in the declaration that Pleasant Hill "has exercised all of the options to extend the franchise agreements." In the absence of such a specific objection, an appellate finding of waiver is justified. We further note that, even if we assume that the objection preserved the contract expiration issue, and further assuming that the trial court overruled the objection sub silentio, Chip-It would not be entitled to a reversal.

The general manager was competent to testify to the renewal, a matter within his personal knowledge, without constituting hearsay or rendering a legal opinion on the meaning of documents. (E.g., Evid. Code, § 702; People v. Forman (1924) 67 Cal. App. 693, 700.)

Finally, even if we assume that Chip-It did make a specific objection that we had overlooked, we would exercise our authority to grant Pleasant Hill's [92 Cal. App. 4th 15l] renewed request to take additional evidence on appeal--a declaration by the City Attorney of Antioch, together with supporting documentation--establishing renewal of the franchise. (Code Civ. Proc., § 909; Cal. Rules of Court, rule 23). We would do this in order to affirm, and because Chip-It has never suggested it can produce any conflicting evidence. (See, e.g., 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 793-794, 796, pp. 826-827, 829.)

This modification does not effect a change in the judgment. The petition for rehearing is denied. Respondent's renewed motion to take additional evidence on appeal is denied as moot.