Ahluwalia v. Cruz CA1/5 ( 2013 )

Filed 3/29/13 Ahluwalia v. Cruz CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
BHUPINDER AHLUWALIA,
Plaintiff and Appellant,
A132847
v.
EDDIE CASTRO CRUZ, (Alameda County
Super. Ct. No. RG 10493859)
Defendant and Respondent.
Bhupinder Ahluwalia and Eddie Castro Cruz were involved in a motor vehicle
accident on Interstate 238 in Alameda County. Ahluwalia sued Cruz for negligence. A
jury found that Cruz was not negligent and judgment was entered in his favor. Ahluwalia
appeals, arguing that the trial court erred by refusing to give a conditional instruction on
res ipsa loquitur. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
At trial, Ahluwalia testified that, on October 16, 2009, at approximately 9:00 p.m.,
his white Toyota pickup truck was rear-ended by Cruz. Ahluwalia was traveling
northbound on I-238, which is composed of three lanes of northbound traffic, when he
pulled over on the shoulder to converse with his wife, who was following in a separate
car. Thereafter, he merged into the slow lane at about 35 miles per hour. It was dark at
the time. Ahluwalia traveled in the slow lane for about two or three seconds (almost 400
yards) when he decided to move over to the middle lane, to his left. Before he made his
lane change, he turned on his signal indicator, looked to his left, and checked his rear and
side mirrors. There was no traffic in the lane within 100 or 200 yards. Ahluwalia
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testified that he merged into the middle lane while traveling at approximately 50 or
55 miles per hour.
Ahluwalia testified that he was in the middle lane for almost two football field
lengths or for ―[m]aybe five, six or ten second[s].‖ He slowed down from 55 miles per
hour to about 30 miles per hour because he saw cars in front of him slowing down with
their brake lights on. His truck was then hit from behind. After his truck was hit, it went
forward and to the left, into the left cement divider.
Because he was unable to do so, Ahluwalia did not give a statement to the
California Highway Patrol officer responding to the scene of the accident. However,
Ahluwalia‘s wife, who had been following in a separate car, told the officer she was not
sure if her husband‘s truck was completely in any one lane at the time of the collision.
The police officer testified at trial that he was under the impression, from talking to
Ahluwalia‘s wife at the scene of the accident, that Ahluwalia‘s truck was moving left
across the freeway when the accident occurred. At trial, Ahluwalia‘s wife testified that
she had not seen any movement of her husband‘s vehicle.
Two weeks after the accident, Ahluwalia received a copy of the police report
indicating he was making an unsafe lane change at the time of the accident and that the
accident was completely his fault. Ahluwalia was advised by his insurance company to
―correct‖ the report and give a statement. Ahluwalia went to the police station and left
his phone number. However, no one called. Ahluwalia never filed a report or a
supplemental report containing his version of events.
Cruz admitted, at trial, that his Toyota pickup truck struck the rear of Ahluwalia‘s
truck. But, Cruz testified that he never saw Ahluwalia‘s truck either before, during, or
after the collision. He testified that he was wearing glasses at the time, the weather was
good, his headlights were working, and there was nothing that kept him from seeing out
of his windshield.
Cruz remembered traveling at 50 miles per hour in the middle lane. Up until the
time of impact, he never varied his speed from 50 miles per hour. The only car in front
of Cruz, in the middle lane, was at least a quarter of a mile ahead. Cruz saw brake lights
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on that car and started to step on the brakes. However, before he hit his brakes, the
collision occurred. He was still traveling 50 miles per hour. There was a car on his right
side, but it never passed him before the collision. Cruz testified: ―I . . . felt his presence
the whole time.‖
At the time of the collision, Cruz did not think he had hit anything. Cruz was
looking forward and there was nothing there and then, all of a sudden, he heard a boom.
His hood folded in half and his glasses flew off. He thought his truck had been hit from
behind. He testified: ―I [thought] I saw an orange SUV. But later on it turned out that
what I was really seeing, you have to remember now, I didn‘t have my glasses on.
[They] flew off at the impact. And what I saw was something in front of me that was
orange. And it turned out that what that orange was the hood of my car with the
reflection of brake lights.‖ Cruz was asked: ―Did you ever see anything cut in front of
you that ended up impacting with the front of your vehicle?‖ He answered: ―No.‖
Ahluwalia presented the testimony of an accident reconstruction expert, Michael
Braun, who examined the police report, deposition testimony, and photographs of
damage to the two vehicles. Braun determined, from the physical evidence, that there
was a speed differential between the two trucks, at the time of impact, of about 35 miles
per hour. Braun also found a relative angle between the vehicles of approximately five
degrees. He testified: ―There‘s a slight offset to the right on the part of Mr. Ahluwalia‘s
vehicle.‖ He further testified that the five-degree angle was relatively shallow or a small
angle which could be the result of a lane change by one of the vehicles, normal
movement back and forth within the lane, or a vehicle turning prior to the collision.
Braun could not determine, from the physical evidence, whether Ahluwalia in fact
changed lanes into the path of Cruz‘s truck, whether Cruz changed lanes into Ahluwalia‘s
truck, or whether Cruz simply rear-ended Ahluwalia.
Cruz presented the testimony of another accident reconstruction expert, Toby
Gloekler. Gloekler reviewed the police report, the photographs of the damaged vehicles,
and the deposition testimony. He also conducted a series of computer simulations that
effectively ruled out the other two scenarios and suggested the cause of the accident was
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an unsafe lane change by Ahluwalia into Cruz‘s path. Gloekler based his opinion on
several factors including the damage patterns on the vehicles, which reflected the point of
contact was on the left rear of Ahluwalia‘s truck and the right front of Cruz‘s truck, and
the fact that Ahluwalia‘s truck was pushed to the left on impact.
Ahluwalia requested a conditional res ipsa loquitur instruction. His trial counsel
argued: ―[S]hould the jury believe that . . . Cruz just wasn‘t paying attention and ran into
the back of my client‘s [truck], . . . we‘re entitled to get an inference of negligence; i.e.,
someone shouldn‘t rear end someone else absent someone‘s negligence.‖ The requested
instruction read as follows: ―In this case, [Ahluwalia] may prove that [Cruz‘s]
negligence caused [his] harm if [he] proves all of the following: [¶] 1. That [Ahluwalia‘s]
harm ordinarily would not have happened unless someone was negligent; [¶] 2. That the
harm was caused by something that only [Cruz] controlled; and [¶] 3. That [Ahluwalia‘s]
voluntary actions did not cause or contribute to the event[s] that harmed [him]. [¶] If you
decide that [Ahluwalia] did not prove one or more of these three things, then [insert one
of the following] [¶] [your verdict must be for [Cruz] [¶] [or] [¶] [you must decide
whether [Cruz] was negligent in light of the other instructions I have read.] [¶] If you
decide that [Ahluwalia] proved all of these three things, you may, but are not required to,
find that [Cruz] was negligent or that [Cruz‘s] negligence was a substantial factor in
causing [Ahluwalia‘s] harm, or both. [¶] You must carefully consider the evidence
presented by both [Ahluwalia] and [Cruz] before you make your decision. You should
not decide in favor of [Ahluwalia] unless you believe, after weighing all of the evidence,
that it is more probable than not that [Cruz] was negligent and that [his] negligence was a
substantial factor in causing [Ahluwalia‘s] harm.‖1 (Italics & some brackets added.)
1 The proposed instruction was a modified version of CACI No. 417, which
currently provides: ―[Name of plaintiff ] may prove that [name of defendant]‘s
negligence caused [his/her] harm if [he/she] proves all of the following: [¶] 1. That [name
of plaintiff]‘s harm ordinarily would not have happened unless someone was negligent;
[¶] 2. That the harm was caused by something that only [name of defendant] controlled;
and [¶] 3. That [name of plaintiff]‘s voluntary actions did not cause or contribute to the
event[s] that harmed [him/her]. [¶] If you decide that [name of plaintiff] did not prove
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The trial court rejected the proposed instruction. It explained: ―I will not give a
res ipsa loquitur instruction. . . . [¶] . . . [¶] [In order for the doctrine to apply,] ‗[the
accident] must be caused by an agency or instrumentality within the exclusive control of
the defendant.‘ [¶] Not so here. One of the scenarios said it could have been [Ahluwalia].
One of Dr. Braun‘s scenarios said [Ahluwalia] could have caused this accident. So it‘s
clear it wasn‘t within the exclusive control of [Cruz] . . . . [¶] ‗And . . . it must not have
been due to any voluntary action or contribution on the part of the plaintiff.‘ [¶] It could
have been entirely because of [Ahluwalia]. So the doctrine doesn‘t apply.‖ Ahluwalia‘s
counsel argued, in response: ―[T]here‘s a difference between presumption of negligence
and inference of negligence. All the cases you‘re citing say you can no longer get a
presumption of negligence. But the parties are still entitled to a conditional res ipsa
[instruction.] [¶] . . . [¶] And that‘s the way it reads now in CALJIC. They no longer
have the presumption of negligence. It‘s just an inference of negligence.‖
After receiving further briefing from Ahluwalia, the trial court reiterated: ―You‘re
not getting the res ipsa instruction. I‘ve read your cases. [¶] . . . [T]he California
Supreme Court in [Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820 (Brown)]
set forth the standard and the required conditions. And they‘re just what I said before.
The accident must be of a kind which ordinarily does not occur in the absence of
someone‘s negligence; it must be caused—2, it must be caused by an agency or
instrumentality within the exclusive control of the defendant; and 3, it must not have been
one or more of these three things, you must decide whether [name of defendant] was
negligent in light of the other instructions I have read. [¶] If you decide that [name of
plaintiff] proved all of these three things, you may, but are not required to, find that
[name of defendant] was negligent or that [name of defendant]‘s negligence was a
substantial factor in causing [name of plaintiff]‘s harm, or both. [¶] [Name of defendant]
contends that [he/she/it] was not negligent or that [his/her/its] negligence, if any, did not
cause [name of plaintiff] harm. If after weighing all of the evidence, you believe that it is
more probable than not that [name of defendant] was negligent and that [his/her]
negligence was a substantial factor in causing [name of plaintiff]‘s harm, you must decide
in favor of [name of plaintiff]. Otherwise, you must decide in favor of [name of
defendant].‖ (Italics omitted.)
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due to any voluntary action or contribution on the part of the plaintiff. And that doesn‘t
apply in this case.‖
After being instructed on the general principles of negligence, the jury reached a
defense verdict by a 10 to 2 vote. In its special verdict, the jury found that Cruz was not
negligent. Judgment was entered on May 31, 2011. After unsuccessfully arguing that the
trial court‘s refusal to give the res ipsa loquitur instruction entitled him to a new trial,
Ahluwalia filed a timely notice of appeal.2
II. DISCUSSION
On appeal, Ahluwalia contends that the court erred when it refused to instruct the
jury on conditional res ipsa loquitur and, thereafter, denied his motion for new trial.
Specifically, he maintains that whether res ipsa loquitur applied was a question of fact for
the jury to decide because he presented substantial evidence to support each condition of
the doctrine. We disagree.
―[C]ertain kinds of accidents are so likely to have been caused by the defendant‘s
negligence that one may fairly say ‗the thing speaks for itself.‘ The Latin equivalent of
this phrase, ‗res ipsa loquitur,‘ was first applied to a barrel of flour that rolled out of the
window of the defendant‘s warehouse onto the plaintiff. [Citation.] As later courts
repeated the phrase, it evolved into the name of a rule for determining whether
circumstantial evidence of negligence is sufficient. The procedural and evidentiary
2 On August 5, 2011, Ahluwalia filed his original notice of appeal, which
challenged only the judgment. On August 15, 2011, he filed an amended notice of appeal
challenging both the judgment and the trial court‘s denial of his motion for a new trial.
―[An] order denying a new trial is nonappealable but subject to review on appeal from the
judgment.‖ (Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 1187, fn. 2,
disapproved on other grounds by Trope v. Katz (1995) 11 Cal.4th 274, 292; accord, Code
Civ. Proc., § 906 [―[u]pon an appeal pursuant to Section 904.1 or 904.2, the reviewing
court may review the verdict or decision and any intermediate ruling, proceeding, order
or decision which involves the merits or necessarily affects the judgment or order
appealed from or which substantially affects the rights of a party, including, on any
appeal from the judgment, any order on motion for a new trial‖].)
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consequences that follow from the conclusion that an accident ‗speaks for itself‘ vary
from jurisdiction to jurisdiction.
―In California, the doctrine of res ipsa loquitur is defined by statute as ‗a
presumption affecting the burden of producing evidence.‘ (Evid. Code, § 646,
subd. (b).)[3] The presumption arises when the evidence satisfies three conditions:
‗ ―(1) the accident must be of a kind which ordinarily does not occur in the absence of
someone‘s negligence; (2) it must be caused by an agency or instrumentality within the
exclusive control of the defendant; (3) it must not have been due to any voluntary action
or contribution on the part of the plaintiff.‖ ‘ [Citation.] A presumption affecting the
burden of producing evidence ‗require[s] the trier of fact to assume the existence of the
presumed fact‘ unless the defendant introduces evidence to the contrary. ( . . . § 604; see
also . . . § 646, subd. (c).) The presumed fact, in this context, is that ‗a proximate cause
of the occurrence was some negligent conduct on the part of the defendant . . . .‘ ( . . .
§ 646, subd. (c)(1).) If the defendant introduces ‗evidence which would support a finding
that he was not negligent or that any negligence on his part was not a proximate cause of
the occurrence,‘ the trier of fact determines whether defendant was negligent without
3 All further section references are to the Evidence Code unless otherwise
indicated. Section 646 provides: ―(a) As used in this section, ‗defendant‘ includes any
party against whom the res ipsa loquitur presumption operates. [¶] (b) The judicial
doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.
[¶] (c) If the evidence, or facts otherwise established, would support a res ipsa loquitur
presumption and the defendant has introduced evidence which would support a finding
that he was not negligent or that any negligence on his part was not a proximate cause of
the occurrence, the court may, and upon request shall, instruct the jury to the effect that:
[¶] (1) If the facts which would give rise to a res ipsa loquitur presumption are found or
otherwise established, the jury may draw the inference from such facts that a proximate
cause of the occurrence was some negligent conduct on the part of the defendant; and
[¶] (2) The jury shall not find that a proximate cause of the occurrence was some
negligent conduct on the part of the defendant unless the jury believes, after weighing all
the evidence in the case and drawing such inferences therefrom as the jury believes are
warranted, that it is more probable than not that the occurrence was caused by some
negligent conduct on the part of the defendant.‖
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regard to the presumption, simply by weighing the evidence. ( . . . § 646, subd. (c); see
also . . . § 604.)‖ (Brown, supra, 4 Cal.4th at pp. 825–826.)4
― ‗The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was the result of
negligence by someone and that the defendant is probably the one responsible.‘
[Citations.]‖ (Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1161,
italics added.) ―In determining whether such probabilities exist in respect to the
particular accident, the courts have relied both on common knowledge and on expert
testimony. [Citations.]‖ (Cordova v. Ford (1966) 246 Cal.App.2d 180, 184–185.)
4 In Brown, supra, 4 Cal.4th 820, our Supreme Court considered a personal injury
suit filed after the plaintiff slipped, on a slice of lunch meat, and fell on school grounds.
The court reversed the appellate court‘s conclusion that the doctrine of res ipsa loquitur
precluded summary judgment for the defendant. (Id. at pp. 823–824.) The high court
reasoned: ―Because there is no evidence that the lunch meat came to be on the floor
through an employee‘s negligence, the District is entitled to summary judgment unless
the doctrine of res ipsa loquitur would permit a jury to infer that fact. [¶] . . . [¶]
Experience teaches that slips and falls are not so likely to be the result of negligence as to
justify a presumption to that effect. As Prosser and Keeton explain, ‗there are many
accidents which, as a matter of common knowledge, occur frequently enough without
anyone‘s fault. . . . [A]n ordinary slip and fall . . . will not in [itself] justify the conclusion
that negligence is the most likely explanation; and to such events res ipsa loquitur does
not apply.‘ (Prosser & Keeton, Torts (5th ed. 1984) § 39, p. 246.) This is true even when
the fall is associated with a slippery object, because objects all too often appear on floors
without sufficient explanation. . . . [¶] . . . [¶] While we need not go so far as to say that
res ipsa loquitur can never apply to a slip and fall, the evidence in this case fittingly
illustrates why such an occurrence ordinarily does not ‗speak for itself.‘ The lunch meat
that apparently caused the accident went undetected until [the plaintiff] fell; afterward, it
was found stuck to the sole of his shoe. To be sure, the lunch meat might have been
dropped by an employee, but it might also have been dropped by a visitor, tracked in
from the outside or from [the plaintiff‘s] own van, transported by an animal, or fallen
from an object carried down the hall, even from one of the computers that [the plaintiff]
was delivering. Some of these explanations do not presuppose negligence, and none is
inherently more probable than the others. In short, there is no basis whatever for a
finding that either of the doctrine‘s first two conditions existed, i.e., (1) that the accident
was of a kind which ordinarily does not occur in the absence of someone‘s negligence, or
(2) that it was caused by an agency or instrumentality within the defendant‘s exclusive
control.‖ (Brown, at pp. 825–827.)
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―The unconditional [res ipsa loquitur] instruction should be given where
uncontradicted evidence shows that all of the three prerequisite conditions exist as a
matter of law. [Citation.] [¶] . . . [The conditional instruction] spells out the three
prerequisite conditions of res ipsa loquitur, and is to be given where the existence of the
three conditions, or any of them, is a question of fact. In such case, the jury must first
determine that each of the three conditions exists—or, as the case may be, some or one of
them, to whatever extent none exists as a matter of law—before the trial court can direct
that the inference of negligence be drawn. [Citation.]‖ (McFarland v. Booker (1967)
250 Cal.App.2d 402, 411–412, fn. omitted.) ―In order to justify the conditional res ipsa
loquitur instruction, a plaintiff need not demonstrate all the facts necessary to the res ipsa
loquitur inference, but need only produce evidence sufficient to support findings that the
requisite conditions are present. [Citation.]‖ (Diamond Springs Lime Co. v. American
River Constructors (1971) 16 Cal.App.3d 581, 601.) In other words, ―even if a trial
judge would not find the fundamental elements from the evidence he must give the
conditional instruction if the jury could reasonably find them to exist.‖ (Folk v. Kilk
(1975) 53 Cal.App.3d 176, 184.) ―In determining whether appellant was entitled to the
benefit of the conditional res ipsa loquitur doctrine, the evidence must be viewed in the
light most favorable to him.‖ (Id. at p. 186; accord, Gicking v. Kimberlin (1985)
170 Cal.App.3d 73, 76.)
Ahluwalia contends that his own ―testimony excluded [him] as a responsible cause
even though [he] participated (i.e., he was driving when rear-ended),‖ that ―it is for the
jury to decide between [his] version and [Cruz‘s] expert‘s version,‖ and ―[t]hat is
precisely why the res ipsa instruction should have been given in this case.‖ (Some
capitalization omitted.) Ahluwalia suggests that if one driver hits another driver from
behind, the driver in the rear is always at fault. However, this is not the law.
―A driver is not necessarily negligent because his vehicle rear-ends another.
[Citations.]‖ (Pittman v. Boiven (1967) 249 Cal.App.2d 207, 214.) Rather, the question
of the rear driver‘s negligence is essentially a question of fact, not of law, which depends
upon the conditions surrounding the occurrence of the accident. (Id. at pp. 213–214.)
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Accordingly, in motor vehicle negligence cases, res ipsa loquitur has been applied
narrowly to collisions between a moving vehicle and one that is stationary. (Steuer v.
Phelps (1974) 41 Cal.App.3d 468, 473.) ―Indeed as a general rule the mere occurrence of
a collision between two motor vehicles does not of itself present a situation for the
application of the doctrine [citations] although a collision may occur under such
circumstances as to warrant the application of the doctrine, as for example in rear-end
collision cases where the rear car has collided with a stopped or stationary vehicle.
[Citations.] [¶] As Prosser puts it: ‗All courts are agreed that the mere fact of a collision
of two automobiles gives rise to no inference of negligence against either driver in an
action brought by the other. . . . It is only where one vehicle is stationary, or its driver‘s
fault is eliminated by some other specific evidence, that res ipsa loquitur can apply
against the other.‘ (Prosser on Torts (3d ed.) p. 226.)‖ (Cordova v. Ford, supra,
246 Cal.App.2d at p. 185, italics added.)
In arguing that a conditional res ipsa instruction was required, Ahluwalia relies on
Mercer v. Perez (1968) 68 Cal.2d 104, McFarland v. Booker, supra, 250 Cal.App.2d 402and Hudspeth v. Jaurequi (1965) 234 Cal.App.2d 526.5 However, all three cases are
distinguishable and merely demonstrate the rule we have just enunciated.
In Mercer v. Perez, supra, 68 Cal.2d 104, a car driven by the plaintiff slowed and
stopped at an intersection on a two-lane highway, in order to make a left turn. After the
defendant saw that the plaintiff‘s car had come to a full stop, the defendant‘s brakes
failed to hold, and the plaintiff‘s car was hit from behind. (Id. at pp. 124–125.) Our
Supreme Court held that the trial court committed prejudicial error in instructing on
contributory negligence when there was no evidence that the plaintiff was negligent. (Id.
at p. 124.) In its analysis of prejudice, the court went on to observe: ―The evidence of
defendants‘ negligence, moreover, is strong [citation]: ‗The mere fact that a driver of a
5 Ahluwalia also relies on numerous other opinions involving application of the
res ipsa doctrine in cases not involving motor vehicle negligence. Because they are not
factually on point, we do not discuss them.
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vehicle does run down the vehicle ahead of him furnishes some evidence that he either
was driving at too high a rate of speed, or that he was following too closely the vehicle
ahead of him.‘ [Citation.] In such circumstances a plaintiff is entitled to an instruction
on the inference of the defendant‘s negligence under the doctrine of res ipsa loquitur
[citation], and one was given here. The evidence adduced by defendants to dispel the
latter inference is, by contrast, weak and unconvincing.‖ (Id. at p. 126, fn. omitted.)
In McFarland v. Booker, supra, 250 Cal.App.2d. 402, there was a conflict in the
evidence regarding whether the plaintiff‘s vehicle was stopped at the time of the
collision. The reviewing court concluded that the trial court had not erred in refusing an
unconditional res ipsa instruction. (Id. at pp. 413–414.) The court observed: ―In a rear-
end collision case, where the evidence is conflicting ‘whether plaintiff’s car was
stationary or whether it stopped suddenly and without warning . . . ‘ the unconditional
instruction is not applicable and only the conditional instruction should be given
[citation].‖ (Id. at p. 413, italics added.)
In Hudspeth v. Jaurequi, supra, 234 Cal.App.2d 526, the plaintiff was riding as a
guest in a vehicle that was struck from the rear by the defendant‘s car. There was a
conflict in the evidence as to whether the car in which the plaintiff was riding had
stopped suddenly or gradually, and regarding how long it was stopped before the
collision. The reviewing court concluded that the trial court committed prejudicial error
in failing to give a conditional res ipsa instruction. (Id. at pp. 527–528.) The court
stated: ―Had plaintiff‘s car been stopped, that is, stationary at the time of the collision
and struck from the rear by defendant‘s moving vehicle, res ipsa loquitur would apply as
a matter of law. [Citations.] Here, however, the evidence is conflicting whether
plaintiff’s car was stationary or whether it stopped suddenly and without warning.‖ (Id.
at p. 527, italics added.)
Here, unlike in any of the above cases, there is absolutely no evidence in the
record that Ahluwalia‘s truck was stopped. On this record no reasonable juror could
conclude that conditions two or three, of the res ipsa doctrine, had been established.
When two moving cars collide, there are two instrumentalities involved, one of which is
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not exclusively controlled by the defendant. Contribution on the part of Ahluwalia was
not ruled out in this case. Accordingly, the trial court did not err in refusing to instruct
the jury on the doctrine of res ipsa loquitur. Nor did it err in denying Ahluwalia‘s motion
for new trial.
III. DISPOSITION
The judgment and order denying new trial are affirmed. Respondent Cruz is to
recover costs on appeal.
_________________________
Bruiniers, J.
We concur:
_________________________
Jones, P. J.
_________________________
Needham, J.
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