Ross v. Roberts , 166 Cal. Rptr. 3d 359 ( 2013 )

Filed 12/23/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RICKY D. ROSS, B242531
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC450511)
v.
WILLIAM LEONARD ROBERTS II et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Rita Miller, Judge. Affirmed and remanded.
John D. Younesi, Jan A. Yoss for Plaintiff and Appellant.
Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, Stanton L. Stein,
Edward A. Klein, Allen P. Lohse; Caldwell Leslie & Proctor, Linda M. Burrow, Eric S.
Pettit for Defendants and Respondents.
___________________________________________________
Plaintiff and appellant Ricky D. Ross is a former criminal who achieved some sort
of celebrity status due, in part, to the enormous scale of his cocaine-dealing operations.
Defendant and respondent William Leonard Roberts II is a famous rap musician who
goes by the name “Rick Ross.” His lyrics frequently include fictional accounts of selling
cocaine. Plaintiff sued Roberts and other defendants/respondents (Maybach Music
Group, Slip-N-Slide Records, and Universal Music Group) claiming that they
misappropriated plaintiff‟s name and identity for their own financial benefit. Defendants
moved for and were granted summary judgment by the trial court.
In this opinion, we find that defendants‟ use of the “Rick Ross” name and persona
is protected expression under the First Amendment because it incorporates significant
creative elements. Accordingly, we conclude that summary judgment is appropriate.
BACKGROUND
Procedural background
Plaintiff initially filed suit against defendants and several other parties in June
2010 in the United States District Court for the Central District of California, asserting
federal and state law claims. Following a motion to dismiss filed by various defendants,
the district court dismissed the federal claims in November 2010 and declined to exercise
supplemental jurisdiction over the remaining state claims. (28 U.S.C. § 1367(c)(3).)
Plaintiff then filed this action in state court in December 2010. The operative first
amended complaint pleaded six causes of action: (1) violation of Civil Code section
3344; (2) false advertising; (3) unjust enrichment; (4) unfair business practices; (5)
common law claims of misappropriation of name and identity; and (6) misappropriation
of rights of publicity. All causes of action relied on allegations that Roberts and the other
defendants misappropriated plaintiff‟s name and identity to further Roberts‟s rap music
career.
Evidence presented on the motion for summary judgment
In December 2011, defendants filed a motion for summary judgment. Evidence
presented in connection with the motion included the following:
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Plaintiff was born Rickie Donnell Ross. Throughout his life, he has gone by the
names Ricky Ross and Rick Ross, and was at one time dubbed with the nickname
“Freeway” Ricky Ross. During the 1980‟s, plaintiff organized and ran a vast cocaine-
dealing enterprise. His network of associates packaged and transported cocaine for sale
directly into at least six different states, and indirectly into many others. At the height of
plaintiff‟s operation, he sold as much as $3 million worth of cocaine a day. He
eventually amassed a fortune worth hundreds of millions of dollars, and he owned dozens
of properties as well as legitimate businesses.
In 1989, plaintiff was arrested in Ohio and charged with trafficking cocaine and
was indicted on separate charges in Texas. He pled guilty to the charges in both Ohio
and Texas and received lengthy sentences. While in prison, plaintiff helped to uncover a
ring of “dirty cops,” who planted evidence and framed innocent people using false
evidence. Plaintiff‟s testimony helped to free approximately 120 wrongly convicted men
and he was rewarded with a significantly reduced sentence, leading to his release from
prison in 1994.
Just six months after his release, plaintiff was arrested again and subsequently
convicted on new charges of conspiracy to traffic cocaine. While plaintiff was in prison
this time, a journalist interviewed him and wrote a piece regarding plaintiff‟s former
cocaine supplier, who in the 1980‟s had close ties to the Nicaraguan Contras. The story
gained significant exposure, and in the 1990‟s plaintiff received widespread coverage
regarding his peripheral role in the Iran-Contra scandal. Over the years, plaintiff has also
been the subject of numerous television shows focusing on his erstwhile criminal empire.
In 2006, plaintiff discovered that Roberts was using the name “Rick Ross,” when
he saw a magazine article about “up and coming” rappers. Still in prison, plaintiff
contacted a lawyer to write a cease and desist letter, but neither plaintiff nor the lawyer
ever received a meaningful response. Plaintiff was eventually released from prison in
2009.
Meanwhile, Roberts lived a life far removed from that of plaintiff. Roberts is a
professional rap musician who goes by the stage name Rick Ross. Early in his career, he
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spoke about how the criminal Ross‟s life story “grabbed him.” Roberts has recently
denied, however, that his performing name is based on plaintiff. He claims instead that
the name is a play on the phrase “big boss,” an old nickname from his high school
football days.
Roberts‟s lyrics frequently include fictional stories about running large-scale
cocaine operations. He is a former correctional officer—a piece of information not
conducive to his career as a “drug-dealing rapper,” and one that he has attempted to hide.
In approximately 2005, Roberts released his first commercial single, “Hustlin‟,” in which
he rapped about selling cocaine and which repeated the refrain “everyday I‟m hustlin‟,” a
phrase previously used by plaintiff in interviews when describing his life as a criminal.
Roberts‟s first commercial CD, Port of Miami, was released in 2006. Since that time, he
has released numerous additional albums and has achieved tremendous commercial
success. His music has been produced, distributed, and/or sold by defendants Maybach
Music Group, Slip-N-Slide Records, and Universal Music Group.
Contentions and the trial court’s ruling
In moving for summary judgment, defendants argued that plaintiff‟s causes of
action were barred by the statute of limitations. Defendants contended that the statute of
limitations began to run at latest in 2005, upon the first commercial use by Roberts of the
name Rick Ross, and that the “single publication rule” (codified by Civ. Code, § 3425.31)
prevented plaintiff from seeking damages for any subsequent use of his name or persona.
Defendants further argued that plaintiff‟s action was barred by the doctrine of laches.
1 Civil Code section 3425.3 states: “No person shall have more than one cause of
action for damages for libel or slander or invasion of privacy or any other tort founded
upon any single publication or exhibition or utterance, such as one issue of a newspaper
or book or magazine or any one presentation to an audience or any one broadcast over
radio or television or any one exhibition of a motion picture. Recovery in any action
shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.”
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Plaintiff opposed defendants‟ motion, arguing that the single publication rule did
not foreclose his claims because, at a minimum, each new album released by defendants
constituted a new and separate publication.
The trial court accepted defendants‟ argument. It found that Roberts‟s first use of
the name Rick Ross occurred no later than 2005, and that plaintiff‟s claims all accrued at
that time. According to the trial court, Roberts‟s subsequent uses of the name Rick Ross
did not constitute further actionable publications and, in any event, plaintiff‟s claims were
barred by laches.
Although we are not convinced that the trial court‟s rulings on either of these
grounds were correct, we need not analyze them at length, because, as discussed below,
we conclude defendants‟ First Amendment rights provide a complete defense to all of
plaintiff‟s claims.
DISCUSSION
I. Review
Under Code of Civil Procedure section 437c, subdivision (c), a motion for
summary judgment shall be granted if all the papers submitted show there is no triable
issue as to any material fact and the moving party is entitled to judgment as a matter of
law. A defendant meets its burden on summary judgment by establishing a complete
defense to the plaintiff‟s causes of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The
burden then shifts to the plaintiff to show a triable issue of fact material to the defense.
(Ibid.) We evaluate a summary judgment ruling de novo, independently reviewing the
record to determine whether there are any triable issues of material fact. (Saelzler v.
Advanced Group 400 (2001) 25 Cal. 4th 763, 767.) “In practical effect, we assume the
role of a trial court and apply the same rules and standards that govern a trial court‟s
determination of a motion for summary judgment.” (Distefano v. Forester (2001) 85
Cal. App. 4th 1249, 1258.) In general, we give no deference to the trial court‟s ruling or
reasoning, and only decide whether the right result was reached. (Carnes v. Superior
Court (2005) 126 Cal. App. 4th 688, 694.)
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On appeal, defendants argue, inter alia, that summary judgment is proper because
Roberts‟s “work”—his music and his professional persona as a drug-dealing rapper who
goes by the name Rick Ross—is a creative expression protected by the First Amendment.
Defendants did not make this argument when moving for summary judgment in the trial
court, an omission which, generally, would preclude us from deciding the issue on
appeal. (See Juge v. County of Sacramento (1993) 12 Cal. App. 4th 59, 71.)
Consideration of the issue is appropriate, however, if the record establishes that the
opposing party “could not have shown a triable issue of material fact had the ground of
law been asserted by the moving party.” (Ibid.; see also Folberg v. Clara G. R. Kinney
Co. (1980) 104 Cal. App. 3d 136, 140; California School of Culinary Arts v. Lujan (2003)
112 Cal. App. 4th 16, 26.)
Several points lead us to conclude that deciding the effect of defendants‟ First
Amendment argument here is appropriate. First, such an issue can often be resolved as a
matter of law and is usually appropriate for summary judgment, or occasionally even
demurrer. (Winter v. DC Comics (2003) 30 Cal. 4th 881, 891-892 (Winter).) As we find
below, given the facts of this case, the First Amendment defense applies as a matter of
law. Second, “[i]n cases involving free speech, a speedy resolution is desirable because
protracted litigation may chill the exercise of First Amendment rights. For that reason,
summary judgment is a favored remedy in free speech cases.” (Kirby v. Sega of America,
Inc. (2006) 144 Cal. App. 4th 47, 54 (Kirby); Winter, at pp. 891-892.) If we were to
disregard the First Amendment defense and reverse the judgment, it is likely that a
further appeal would ensue following the trial court‟s eventual consideration of the issue,
leading to anything but a speedy resolution. Third, plaintiff requested and was granted
leave by this Court to brief the issue; he thus has had an adequate opportunity to explain
either how the defense does not apply or how it requires resolution of disputed material
facts. (See Juge v. County of Sacramento, supra, 12 Cal.App.4th at p. 70 [party opposing
motion for summary judgment must be given opportunity to respond to ground upon
which summary judgment is decided].) Given all of these reasons, and because the
record establishes that plaintiff is unable to show a triable issue of material fact relevant
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to defendants‟ First Amendment defense, the interests of justice dictate that we decide the
issue at this stage.
II. Right of Publicity
Plaintiff‟s causes of action are all based on the theory that Roberts
misappropriated plaintiff‟s name and identity for Roberts‟s and the other defendants‟
commercial advantage. Plaintiff contends that defendants are liable under Civil Code
section 3344, as well as common law rights of publicity and related claims.
The right of publicity protects an individual‟s right to profit from the commercial
value of his or her identity. (Gionfriddo v. Major League Baseball (2001) 94
Cal. App. 4th 400, 409; Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal. App. 4th 529,
544.) California recognizes both a common law and statutory right of publicity.
(Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal. 4th 387, 391 (Comedy
III).) The common law cause of action may be stated by pleading: the defendant‟s
unauthorized use of the plaintiff‟s identity; the appropriation of the plaintiff‟s name,
voice, likeness, signature, or photograph to the defendant‟s advantage, commercially or
otherwise; and resulting injury. (Eastwood v. Superior Court (1983) 149 Cal. App. 3d
409, 417; Kirby, supra, 144 Cal. App. 4th 47, 55.) The statutory right, enacted in 1971,
was intended to complement this common law right of publicity. (Comedy III, at p. 391;
Eastwood, at pp. 416-417; Kirby, at p. 55.) It provides, in pertinent part: “Any person
who knowingly uses another‟s name, voice, signature, photograph, or likeness, in any
manner, on or in products, merchandise, or goods, or for purposes of advertising or
selling, or soliciting purchases of, products, merchandise, goods or services, without such
person‟s prior consent . . . shall be liable for any damages sustained by the person or
persons injured as a result thereof.” (Civ. Code, § 3344, subd. (a).)
III. Defendants’ First Amendment Defense
A. The Transformative Test
As our Supreme Court explained in Comedy III, a tension exists between rights of
publicity and rights of free speech and expression under the First Amendment. (Comedy
III, supra, 25 Cal. 4th 387, 396-397.) Purposes of the First Amendment include
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preserving an uninhibited marketplace of ideas and fostering individual rights of self-
expression. (Comedy III, at p. 397.) A right of publicity has the potential to frustrate
these purposes, as it can lead to suppression of individual expression and censorship of
the public display of ideas. (Ibid.)
Our Supreme Court thus devised a test to “balance” the right of a celebrity to
control the commercial exploitation of his or her likeness and identity against another
individual‟s right to free expression under the First Amendment. (Comedy III, supra, 25
Cal.4th at p. 391; Winter, supra, 30 Cal.4th at p. 885; see also Kirby, supra, 144
Cal. App. 4th 47, 58.) The test is based on an examination of “„whether the new work
merely “supersede[s] the objects” of the original creation . . . or instead adds something
new, with a further purpose or different character, altering the first with new expression,
meaning, or message. . . . [Citation.]‟” (Comedy III, at p. 404.)
The central inquiry is whether a work is “„transformative.‟” (Comedy III, supra,
25 Cal.4th at p. 404.) “When artistic expression takes the form of a literal depiction or
imitation of a celebrity for commercial gain, directly trespassing on the right of publicity
without adding significant expression beyond that trespass, the state law interest in
protecting the fruits of artistic labor outweighs the expressive interests of the imitative
artist.” (Id. at p. 405, fn. omitted.) But, “when a work contains significant transformative
elements, it is not only especially worthy of First Amendment protection, but it is also
less likely to interfere with the economic interest protected by the right of publicity. . . .
[W]orks of parody or other distortions of the celebrity figure are not, from the celebrity
fan‟s viewpoint, good substitutes for conventional depictions of the celebrity and
therefore do not generally threaten markets for celebrity memorabilia that the right of
publicity is designed to protect. [Citation.] Accordingly, First Amendment protection of
such works outweighs whatever interest the state may have in enforcing the right of
publicity.” (Ibid.)
Simply stated, the transformative test looks at “whether the celebrity likeness is
one of the „raw materials‟ from which an original work is synthesized, or whether the
depiction or imitation of the celebrity is the very sum and substance of the work in
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question. We ask, in other words, whether a product containing a celebrity‟s likeness is
so transformed that it has become primarily the defendant‟s own expression rather than
the celebrity‟s likeness.” (Comedy III, supra, 25 Cal.4th at p. 406.) This transformative
test is the court‟s primary inquiry when resolving a conflict between the right of publicity
and the First Amendment.
A “subsidiary inquiry” that courts may employ, particularly in close cases, is to
ask whether “the marketability and economic value of the challenged work derive
primarily from the fame of the celebrity.” (Comedy III, supra, 25 Cal.4th at p. 407.) If
the answer to this question is “no,” and if the value of the work instead derives from the
creativity, skill, or reputation of the artist, then the First Amendment protects against a
right of publicity claim. (Comedy III, at p. 407.) “In sum, when an artist is faced with a
right of publicity challenge to his or her work, he or she may raise as affirmative defense
that the work is protected by the First Amendment inasmuch as it contains significant
transformative elements or that the value of the work does not derive primarily from the
celebrity‟s fame.” (Ibid.)
The issue addressed in Comedy III was whether an artist‟s drawings of the Three
Stooges, which were little more than literal reproductions of their likenesses sold as
lithographs and on T-shirts, qualified as artworks protected by the First Amendment. The
Supreme Court answered the question in the negative. (Comedy III, supra, 25 Cal.4th at
pp. 408-409.) In contrast, in Winter, the court found that comic book illustrations
depicting the musician brothers Johnny and Edgar Winter as half human and half worm
were sufficiently transformative to qualify for First Amendment protection. (Winter,
supra, 30 Cal.4th at pp. 890-891.)
Both Comedy III and Winter involved visual representations of celebrity
individuals, as have a number of other cases in which the First Amendment intersected
with the right of publicity. (See Kirby, supra, 144 Cal.App.4th at pp. 59-60 [video game
character resembling lead singer of a prominent musical band was transformative and
thus protected]; No Doubt v. Activision Publishing, Inc. (2011) 192 Cal. App. 4th 1018,
[video game containing literal reproductions of popular band members was not
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protected]; (Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete Name & Likeness
Licensing Litig.) (9th Cir. Cal. 2013) 724 F.3d 1268, 1270 [video games that “literally
recreates” college athletes “in the very setting in which [they] achieved renown” not
entitled to 1st Amend. protection].) The First Amendment defense does not apply only to
visual expressions, however. “The protections may extend to all forms of expression,
including written and spoken words (fact or fiction), music, films, paintings, and
entertainment, whether or not sold for a profit.” (Kirby, at p. 58; see also Comedy III,
supra, 25 Cal. 4th at p. 406.)
B. Application
Applying the transformative test to the facts of this case, we find that the First
Amendment provides a complete defense to all of plaintiff‟s claims.2 As in Winter,
where the Supreme Court found that application of the test to the case was “not difficult”
(Winter, supra, 30 Cal. 4th 881, 890), the validity of defendants‟ First Amendment
defense here is quite obvious. We recognize that Roberts‟s work—his music and persona
as a rap musician—relies to some extent on plaintiff‟s name and persona. Roberts chose
to use the name “Rick Ross.” He raps about trafficking in cocaine and brags about his
wealth. These were “„raw materials‟” from which Roberts‟s music career was
synthesized. But these are not the “very sum and substance” of Roberts‟s work. (See
Comedy III, supra, 25 Cal. 4th 387, 406.)
Roberts created a celebrity identity, using the name Rick Ross, of a cocaine
kingpin turned rapper. He was not simply an imposter seeking to profit solely off the
name and reputation of Rick Ross. Rather, he made music out of fictional tales of
dealing drugs and other exploits—some of which related to plaintiff. Using the name and
certain details of an infamous criminal‟s life as basic elements, he created original artistic
2 Plaintiff and defendants differ on the issue of whether Roberts appropriated
plaintiff‟s name and identity. For purposes of this appeal, we assume that such
appropriation did occur, because if there was no appropriation, plaintiff‟s claims—which
are all premised on the theory that Roberts misappropriated plaintiff‟s name and
identity—would fail anyway.
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works. “A work is transformative if it adds „new expression.‟” (Kirby, supra, 144
Cal.App.4th at p. 60, citing Comedy III, supra, 25 Cal.4th at p. 404.) Roberts‟s work
clearly added new expression.
Comedy III‟s “subsidiary inquiry” also supports application of the First
Amendment defense. Although it is possible that Roberts initially gained some exposure
through use of the name Rick Ross and the reputation it carried, the value of Roberts‟s
work does not derive primarily from plaintiff‟s fame. (See Comedy III, supra, 25 Cal.4th
at p. 407.) The economic value of Roberts‟s work is reflected to a large extent by the
number of CD‟s and records he sells. It can safely be assumed that when individuals
purchase music, they generally do so in order to listen to music that they enjoy. It defies
credibility to suggest that Roberts gained success primarily from appropriation of
plaintiff‟s name and identity, instead of from the music and professional persona that he
(and the other defendants) created.
Relying on Estate of Fuller v. Maxfield & Oberton Holdings, LLC (N.D.Cal.
2012) 906 F. Supp. 2d 997 (Fuller), plaintiff argues that the First Amendment defense
only applies in a right of publicity case when the alleged misappropriation is of a
“likeness” (i.e., a person‟s visual image), not a name. In Fuller, Buckminster Fuller‟s
estate sued the manufacturer of toys called “Buckyballs,” which, according to the
defendant‟s press release, were “inspired and named after [the] famous architectural
engineer and inventor” Buckminster Fuller; the toys, which consisted of round magnets,
could be manipulated to resemble the Carbon-60 molecule, commonly referred to as the
“buckyball” molecule. (Id. at p. 1002.) The district court identified two reasons that the
manufacturer‟s First Amendment defense failed. First, the cases on which the
manufacturer relied, such as Comedy III, Kirby, and Winter, all addressed the use of a
plaintiff‟s likeness, instead of only a name. (Fuller, at p. 1006.) According to the Fuller
court, “[t]his distinction is a meaningful one, as the reasoning of the cases that articulate
the transformative use defense depends on the visual nature of the transformation. . . .
The simple use of a name is not an act of expression in the way that the creation or
alteration of an image is, and a name cannot be transformed while remaining
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recognizable in the way that an image can.” (Ibid.) Second, Fuller‟s “name and identity”
were not part of the actual product the manufacturer was selling—the toys did not depict
or reference Fuller. (Ibid.) The court found no First Amendment protection “for the use
of a celebrity‟s name, transformed or otherwise, to sell an unrelated product.” (Ibid.)
We believe that Fuller‟s emphasis on the “visual nature” of the First Amendment
defense in right of publicity cases can be misleading, since it previously has been held
that First Amendment protection “extend[s] to all forms of expression,” including words
(written or spoken) and music. (Kirby, supra, 144 Cal.App.4th at p. 58; see also Comedy
III, supra, 25 Cal. 4th at p. 406.) Indeed, the instant case is one in which there was no
appropriation of something visual, such as a likeness, but the First Amendment defense
still applies. The differences between this case and Fuller are significant. In Fuller, the
defendant used the plaintiff‟s name to sell an unrelated product. (Fuller, supra, 906
F.Supp.2d at p. 1006.) Here, Roberts created music by adding significant transformative
elements to the base components of plaintiff‟s name and identity.3 In Fuller, the product
was in no way a transformed portrayal of the famous engineer and inventor. (Id. at p.
1002.) In contrast, the rapper “Rick Ross” is a highly altered, essentially fantasized
version of plaintiff.
Our holding that defendants are protected by the First Amendment is consistent
with our Supreme Court‟s guidance on the issue. Comedy III noted how books (which,
generally, do not contain visual depictions) can receive First Amendment protection.
(Comedy III, supra, 25 Cal.4th at p. 408.) Furthermore, in Winter, the Supreme Court
emphasized the point that the distorted depictions of the plaintiff Winter brothers were
merely cartoon characters “in a larger story, which is itself quite expressive.” (Winter,
supra, 30 Cal.4th at p. 890.) Roberts‟s music may be analogized to a work of fiction in
3 Unauthorized use of a plaintiff‟s identity is an element of a common law right of
publicity claim, which Civil Code section 3344 (prohibiting unauthorized appropriation
of a plaintiff‟s name) complements. (Comedy III, supra, 25 Cal.4th at p. 391; Eastwood
v. Superior Court, supra, 149 Cal. App. 3d 409, 417.)
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which the protagonist bears some resemblance to the original Rick Ross. The
resemblance is one “raw material” upon which the story is based, but it is merely a minor
detail when viewed in the context of the larger story—Roberts‟s music and persona are
much more than literal depictions of the real Rick Ross.
For all of these reasons, we find that defendants‟ expression was transformative,
and they are entitled to summary judgment.
IV. Attorney Fees
Civil Code section 3344, subdivision (a) provides that the prevailing party in any
action under the section shall be entitled to attorney fees and costs. Defendants moved
for and were awarded fees and costs in the trial court, a ruling that plaintiff requests we
reverse in the event we find summary judgment improper. Because we affirm the
judgment, we do not reverse the fees and costs award.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their fees and costs on
appeal, in an amount to be determined by the trial court on remand.
CERTIFIED FOR PUBLICATION.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
FERNS, J.*
_______________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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