Donald H. Albrecht, and Joanne Albrecht v. William S. Lund

Our opinion in this case, published at 845 F.2d 193 (9th Cir.1988), is amended by substituting the following in lieu of the fifth paragraph of section III:

With this amendment, the petition for rehearing is DENIED.

. Albrecht’s complaint is contradictory with respect to exactly what Lund allegedly communicated to Albrecht. In paragraph 10, Albrecht alleges that "Lund stated that he believed that [an adverse verdict] was a distinct possibility based upon discussions he had just had with Plaintiffs’ and Lund’s attorneys_” In paragraph 23, however, Albrecht alleges that Lund "represented that Plaintiffs’ and Lund’s attorneys in the Lawsuit had just indicated to him that an adverse verdict on the counter-claims was a distinct possibility.” Regardless, accepting as true the facts as alleged in the complaint and construing them in the light most favorable to the nonmoving party, Western Oil & Gas Co. v. New, 765 F.2d 1428 , 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056 , 106 S.Ct. 795 , 88 L.Ed.2d 773 (1986), we agree with the district court that Lund’s statement cannot constitute a misrepresentation. . We note that Albrecht is correct in asserting that an active misrepresentation…