Moncibaez v. Stericycle, Inc. CA2/4 ( 2021 )

Filed 12/8/21 Moncibaez v. Stericycle, Inc. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ERIK MONCIBAEZ, B304079
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV25328)
v.
STERICYCLE, INC. et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
Littler Mendelson, Monica Martelli Quinn, Sara Ashley
Zimmerman, Charles Cannizzaro for Defendants and Appellants.
Reisner & King, Adam J. Reisner, Tessa M. King; Benedon
& Serlin, Douglas G. Benedon and Kian Tamaddoni for Plaintiff
and Respondent.
INTRODUCTION
Erik Moncibaez sued his employer, Stericycle, Inc., and
others alleging sexual harassment, racial discrimination, and
retaliation. Stericycle moved to compel arbitration, and
presented an arbitration agreement that Moncibaez purportedly
signed electronically when he began working for Stericycle.
Stericycle also submitted a declaration stating that Moncibaez
and his supervisor accessed and signed the document through an
online portal. Moncibaez opposed the motion, asserting that
although he “clicked through” several documents, he did not
recall seeing or signing the arbitration agreement. He also noted
that the signature line stated “Paul Moncibaez,” a version of
Moncibaez’s name he did not typically use. The trial court denied
the motion, finding that Stericycle failed to meet its burden to
demonstrate an enforceable arbitration agreement. Stericycle
appealed.
We affirm. Stericycle did not authenticate Moncibaez’s
electronic signature as required by Civil Code, section 1633.9,
subdivision (a). Moncibaez and his supervisor both had access to
the arbitration agreement, and Stericycle did not meet its burden
to prove the electronic signature was “the act of” Moncibaez.
Substantial evidence therefore supports the trial court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
Moncibaez filed a complaint against Stericycle, district
sales manager Joshua Amaya, and territory sales manager
Matthew Toner on July 19, 2019. Moncibaez asserted seven
causes of action for sexual harassment, racial discrimination,
retaliation, and intentional infliction of emotional distress.
Moncibaez alleged that he began working as a sales executive for
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Stericycle on July 10, 2017, and that he was still employed there.
He alleged that Toner harassed him “by making graphic sexual,
lewd, and crude comments to [Moncibaez] as a means of singling
him out, for personal gratification and to demean and upset him.”
Moncibaez complained to Amaya about Toner, but Amaya
“pursued no remedial action,” harassed Moncibaez, and told
Toner that Moncibaez had complained about him. Moncibaez
further alleged that he spoke with Stericycle’s human resources
department, but his concerns were “summarily disregarded.” In
addition, Moncibaez alleged that although he was “generating
more sales than all of the sales executives on his team,” he was
written up for low performance and reassigned to a lower-
producing sales territory. He alleged that after returning to work
following a short illness in February 2019, he discovered that he
had been locked out of his office and denied access to the
company’s remote work computer system. Thereafter, Stericycle
refused Moncibaez’s requests to return to work. Moncibaez
requested actual damages, declaratory relief, injunctive relief,
punitive damages, and attorney fees.
Stericycle and Amaya answered the complaint; Toner was
not served with the complaint and did not appear below.
Hereafter, we refer to Stericycle and Amaya collectively as
“defendants.”
B. Defendants’ motion to compel arbitration
Defendants moved to compel arbitration and stay the
superior court proceedings. Defendants asserted that on July 10,
2017, Moncibaez signed an arbitration agreement. The three-
page arbitration agreement attached to the motion stated that
“any and all disputes, claims or controversies arising out of the
employment relationship between the parties or the termination
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of that relationship, shall be resolved by final and binding
arbitration.” The arbitration agreement stated that it covered
any claims by an employee against Stericycle or Stericycle
employees, and it was governed by the Federal Arbitration Act
(FAA), 9 U.S.C. § 1. It also stated that an employee receiving the
agreement had 30 days to opt out of arbitration, and if no opt-out
notice was received, the arbitration agreement “will become fully
effective and binding upon the date” the agreement was signed.
It further stated, “I acknowledge that I have carefully reviewed
this agreement and that I understand that I have thirty (30) days
to opt out of arbitration if I do not wish this agreement to apply
to me.” The arbitration agreement had blank lines for the
employee’s signature, a signature for Stericycle, and dates for
each. The version attached to defendants’ motion to compel
arbitration was blank; it had no dates or signatures.
Defendants submitted the declaration of Amanda Beezley,
Stericycle’s human resources compliance manager. She stated
that she managed “Stericycle’s relations with its third-party
vendor Red Carpet, the online portal utilized by Stericycle for
maintenance and signature of employment-related documents.”
Beezley stated that she had “administrative access to Red Carpet
as it pertains to employees,” and therefore could “log on and view
which documents have been signed. The only details I can see
are things such as document title, date and time of access, and
date and time of acknowledgement.” Regarding Moncibaez’s
documents, Beezley attached a “screenshot entitled ‘Version
History’ show[ing] the date(s) and time(s) the Arbitration
Agreement was accessed, and by whom.” The screenshot had a
section titled “ARBITRATION AGREEMENT,” and it had what
appeared to be links to the arbitration agreement in English and
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Spanish. Below the links, it stated, “I acknowledge that I have
carefully reviewed this agreement and that I understand that I
have thirty (30) days to opt out of arbitration if I do not wish this
agreement to apply to me.” In the “Acknowledgement of Receipt”
section, the employee signature line stated, “Paul Moncibaez
(Electronically Signed),” with a date of July 11, 2017. The section
for a Stericycle representative stated, “Chris Ramirez
(Electronically Signed)” on the same date. Beezley explained that
Ramirez was Moncibaez’s manager.
A second portion of the screenshot page showed what
Beezley described as “the date(s) and time(s) the Arbitration
Agreement was accessed, and by whom.” The table included the
following information:
Version Description Label Date Publisher Action
4 Record of Published 07/11/2017 Chris View
published 07/11/2017 12:46:41 Ramirez Delete
content 12:46:41 Rollback
3 Record of Published 07/11/2017 Chris View
published 07/11/2017 12:46:41 Ramirez Delete
content 12:46:41 Rollback
2 Record of Published 07/11/2017 Erik View
published 07/11/2017 12:25:02 Moncibaez Delete
content 12:25:02 Rollback
1 Record of Published 07/10/2017 Chris View
published 07/10/2017 11:53:33 Ramirez Delete
content 11:53:34 Rollback
Beezely explained that this version history shows Moncibaez
“electronically acknowledged the Arbitration Agreement at
approximately 12:25:02 on July 11, 2017. The Arbitration
Agreement also required signature by . . . manager Chris
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Ramirez, which accounts for the additional entries on the Version
History.”
Defendants contended the arbitration agreement was valid
and enforceable under the FAA and California law. They
asserted that Moncibaez electronically signed the arbitration
agreement, and defendants had properly authenticated his
electronic signature. Defendants also argued that even if
Moncibaez had not signed the arbitration agreement, “his
continued employment constitutes an assent to be bound by the
terms of the agreement.”
Moncibaez opposed the motion, asserting that defendants
failed to meet their burden to show that a valid arbitration
agreement existed. Moncibaez submitted a declaration stating
that he was not given the opportunity to review any documents
before signing them, he did not recall signing the arbitration
agreement, and he was not provided any opportunity to ask
questions about the arbitration agreement. He stated that as his
employment with Stericycle began, Ramirez asked Moncibaez “to
complete some online forms at his desktop computer. I was asked
to sit on a chair next to Supervisor Ramirez and use the computer
at his desk to complete forms so that I could begin my training.”
He continued, “I was not given the opportunity to review any of
the documents before signing and have no recollection of ever
seeing, much less agreeing to, the Arbitration Policy.” Moncibaez
stated that he “felt rushed and forced to click through the online
prompts,” while Ramirez “told me, ‘let’s get through this,’ urging
me to hurry up and sign without reviewing the information.”
Moncibaez further stated that although the arbitration
agreement was purportedly signed by “Paul Moncibaez,” “I
typically sign my name as ‘Erik Moncibaez’ and do not recall ever
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typing ‘Paul Moncibaez’ on any Stericycle document.” He stated
that he “solely completed the electronic forms under fear of losing
an employment opportunity. As such, I did not execute the
alleged agreement.” (Emphasis in original.)
Moncibaez argued that defendants failed to establish the
existence of a valid arbitration agreement, because there was no
meeting of the minds. He further argued that the arbitration
agreement was substantively and procedurally unconscionable.
In their reply, defendants asserted that Moncibaez failed to
refute the existence of a binding arbitration agreement.
Defendants also argued that the arbitration agreement was not
unconscionable. They did not submit any additional evidence.
C. Hearing and ruling
At the hearing on the motion, the parties briefly argued
their positions. The court stated that the arbitration agreement
“does not, to the court, appear to be unconscionable. There’s no
sort of stance of unconscionability, at best a small amount of
procedural unconscionability.” The court continued, “[B]ut
there’s a question there if there’s a contract at all. Therein lies
the rub.” The court therefore stated that “the defendant fails to
meet their burden and this motion is denied.” Defense counsel
argued again that there was a valid agreement, and asserted that
the electronic signature was valid. The court stated, “I thought
there was a lot of hearsay from the defense’s argument, and that
signed document, that’s questionable to the court.” The court
also stated, “There wasn’t any testimony that the plaintiff was
told about what he could or could not do also. This may just fall
into that narrow trough of I still don’t think you’re carrying your
burden. [¶] I know what the state of the law is, and in some
circumstances, I would be willing to find for the defense in this
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regard, but in this instance, I’m uncomfortable doing that.” In its
minute order, the court stated, “The Motion to Compel
arbitration and to stay Judicial proceedings . . . is Denied.
Defendant fails to meet the burden of proof.”
Defendants timely appealed. (Code Civ. Proc, § 1294.)
DISCUSSION
Defendants contend that “the only issue on appeal is the
existence of an agreement to arbitrate.” They assert that
Moncibaez “admitted to signing the Agreement,” and “as a matter
of law, a valid contract existed between [Moncibaez] and
Stericycle.” Moncibaez contends that he did not sign the
agreement, and asserts that defendants did not carry their
burden to show the existence of an enforceable agreement.
Where the trial court resolved contested issues of fact in deciding
a motion to compel arbitration, such as whether an arbitration
agreement existed, we review the court’s factual findings for
substantial evidence. (See Luxor Cabs, Inc. v. Applied
Underwriters Captive Risk Assurance Co. (2018) 30 Cal.App.5th
970, 977.)1
1 As Moncibaez points out, some courts hold that when a
trial court’s order denying a motion to compel arbitration is based
on the court’s finding that the moving party failed to carry its
burden of proof, the question for the reviewing court is whether
that finding is erroneous as a matter of law. (See, e.g., Fabian v.
Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1066
(Fabian); Garcia v. KND Development 52, LLC (2020) 58
Cal.App.5th 736, 744.) We do not address this discrepancy in the
case law; the outcome here would be the same under either
standard.
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“[W]hen a petition to compel arbitration is filed and
accompanied by prima facie evidence of a written agreement to
arbitrate the controversy, the court . . . must determine whether
the agreement exists and, if any defense to its enforcement is
raised, whether it is enforceable. Because the existence of the
agreement is a statutory prerequisite to granting the petition, the
petitioner bears the burden of proving its existence by a
preponderance of the evidence.” (Rosenthal v. Great Western Fin.
Securities Corp. (1996) 14 Cal.4th 394, 413; see also Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)
Parties moving to compel arbitration “may meet their
initial burden to show an agreement to arbitrate by attaching a
copy of the arbitration agreement purportedly bearing the
opposing party’s signature.” (Espejo v. Southern California
Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060
(Espejo).) If the opposing party challenges the validity of that
signature, however, the moving party must “establish by a
preponderance of the evidence that the signature was authentic.”
(Ibid.)
Here, the court found the “signed document” to be
“questionable,” and held that defendants failed to carry their
burden. Defendants say little on the issue of authentication in
their opening brief, asserting instead that Moncibaez “admitted
to signing the Agreement because he clicked through the online
prompts and completed the electronic forms.” Moncibaez,
however, notes that he stated in his declaration that he “did not
execute” the arbitration agreement, he had no recollection of ever
seeing the arbitration agreement, he typically signs his name
“Erik Moncibaez,” and he did not recall typing the name “Paul
Moncibaez” on any Stericycle documents. Moncibaez asserts that
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Beezley’s “conclusory statement” in her declaration that
Moncibaez signed the agreement is insufficient to meet
defendants’ burden to authenticate the signature. In their reply
brief, defendants assert that Beezley’s declaration met the
requirements to authenticate the electronic signature.
Civil Code section 1633.9 governs the authentication of
electronic signatures. It states, in full, “(a) An electronic record
or electronic signature is attributable to a person if it was the act
of the person. The act of the person may be shown in any
manner, including a showing of the efficacy of any security
procedure applied to determine the person to which the electronic
record or electronic signature was attributable. [¶] (b) The effect
of an electronic record or electronic signature attributed to a
person under subdivision (a) is determined from the context and
surrounding circumstances at the time of its creation, execution,
or adoption, including the parties’ agreement, if any, and
otherwise as provided by law.” (Civ. Code, § 1633.9.)
Thus, to authenticate an electronic signature, the
proponent of the evidence must show that the electronic
signature “was the act of the person.” (Civ. Code, § 1633.9, subd.
(a).) Case law indicates that to meet this burden, the proponent
of the evidence must show that the purported signatory—rather
than another person—completed the act of electronically signing
the document.
Moncibaez compares this case to Ruiz v. Moss Bros. Auto
Group, Inc. (2014) 232 Cal.App.4th 836 (Ruiz), in which an
employee, Ruiz, filed a wage and hour action against his
employer, Moss Bros., which then moved to compel arbitration.
(Id. at pp. 838-839.) The business manager of Moss Bros., Main,
submitted a declaration in which she “summarily asserted that
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Ruiz ‘electronically signed’ the 2011 agreement ‘on or about
September 21, 2011,’” but “Main did not explain how Moss Bros.
verified that Ruiz . . . electronically signed the 2011 agreement.”
(Id. at p. 839.) In his opposition to the motion, “Ruiz argued that
Main’s ‘conclusory statement’ that he electronically signed the
2011 agreement was ‘not enough to prove by a preponderance of
the evidence’ that he did, in fact, electronically sign the
agreement. In his opposing declaration, Ruiz averred he did not
recall signing any arbitration agreement on September 21, 2011,
or at any other time, and if he had been presented with an
agreement that limited his ability to sue Moss Bros. he would not
have signed it.” (Id. at p. 840.) With the reply, Main submitted a
second declaration, which explained, “Each employee is required
to log into the Company’s HR system—each with his or her
unique login ID and password—to review and electronically
execute the Employee Acknowledgement form, which includes the
arbitration agreement. While all employees are required to sign
the form, they are free to review it at their leisure while logged
into the HR system.” (Id. at pp. 840-841.) The Court of Appeal
noted, “Still, Main did not indicate whether or if so how Moss
Bros. ascertained that Ruiz electronically signed, or was the
person who electronically signed, the employee acknowledgement
form, including the 2011 agreement.” (Id. at p. 841.) The trial
court held that Moss Bros. failed to establish that an agreement
existed, and Moss Bros. appealed. (Ibid.)
The Court of Appeal affirmed on the basis that “Moss Bros.
did not present sufficient evidence to support a finding that the
electronic signature on the 2011 agreement was the act of Ruiz.”
(Ruiz, supra, 232 Cal.App.4th at p. 842.) The court discussed
authentication under Civil Code section 1633.9, and found that
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Main’s declarations were insufficient to meet that standard.
“Main summarily asserted in her initial declaration that Ruiz
was the person who electronically signed the 2011 agreement . . .
but she did not explain how she arrived at that conclusion or
inferred Ruiz was the person who electronically signed the 2011
agreement. . . . Main never explained how Ruiz’s printed
electronic signature, or the date and time printed next to the
signature, came to be placed on the 2011 agreement.” (Id. at pp.
843-844.) Main explained that each employee logged into the
company’s computer system “using his or her ‘unique login ID
and password,’ to review and sign the employee acknowledgment
form. Again, however, Main did not explain how, or upon what
basis, she inferred that the electronic signature on the 2011
agreement was ‘the act of’ Ruiz.” (Id. at p. 844.) The court
continued, “In the face of Ruiz’s failure to recall electronically
signing the 2011 agreement, the fact the 2011 agreement had an
electronic signature on it in the name of Ruiz, and a date and
time stamp for the signature, was insufficient to support a
finding that the electronic signature was, in fact, ‘the act of’
Ruiz.” (Ibid.)
Moncibaez also relies on Fabian, supra, 42 Cal.App.5th
1062, in which a homeowner, Fabian, alleged problems with the
installation of solar panels in her home. The defendant,
Renovate, sought to compel arbitration based on a purported
contract with Fabian; it submitted a contract bearing electronic
initials and an electronic signature. (Id. at p. 1064-1065.)
Fabian stated in a declaration that she did not sign any contract,
and all of her communications with Renovate had been completed
by phone. (Id. at p. 1065.) The parties conducted discovery
regarding whether Fabian signed a contract. (Id. at p. 1066.)
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Fabian maintained that she did not sign a contract, and Renovate
stated that Fabian signed the document through DocuSign.
(Ibid.) The trial court denied Renovate’s motion to compel
arbitration.
The Court of Appeal affirmed. The court rejected
Renovate’s contention that “the Contract bearing Fabian’s
electronic initials and signature is authenticated by DocuSign.
Standing alone, that fact is not sufficient to compel a result in
Renovate’s favor as a matter of law.” (Fabian, supra, 42
Cal.App.5th at p. 1068.) The court noted that “Renovate offered
no evidence about the process used to verify Fabian’s electronic
signature via DocuSign,” including how the contract was
provided to Fabian or “how Fabian’s identification was verified as
the person who actually signed the Contract.” (Id. at p. 1069.)
The declarations submitted by Anderson, a Renovate employee,
did not fill the evidentiary gap; Anderson did not discuss how the
contract was presented to Fabian, explain “the process used to
obtain and verify Fabian’s ‘docusigned’ electronic initials and
signature,” or state “how the electronic signature could have only
been placed on the Contract by Fabian.” (Id. at pp. 1069-1070.)
The court stated, “Most importantly, Anderson did not explain
how Fabian’s electronic initials and signature were the ‘act of
Fabian’ by offering evidence that DocuSign assigned Fabian a
unique ‘identity verification code’ to initial and sign the
Contract.” (Id. at p. 1070.)
In another recent case, Bannister v. Marinidence Opco,
LLC (2021) 64 Cal.App.5th 541 (Bannister), the plaintiff,
Bannister, was an employee of a skilled nursing facility that was
purchased by the defendant, Marinidence. Bannister sued for
employment-related claims, and Marinidence moved to compel
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arbitration, attaching an arbitration agreement Bannister
purportedly signed during an onboarding process after
Marinidence took over the facility. (Id. at p.544.) To
authenticate the electronic signature, Marinidence presented
evidence that “[t]o access the online onboarding portal, an
individual must enter an employee’s first and last name and
Social Security number, in addition to entering Marinidence’s
‘Client ID’ and pin code (the same ‘Client ID’ and pin code for all
employees). . . . Based on these requirements, according to
Marinidence, the electronic signature on the arbitration
agreement could only have been placed there by Bannister.” (Id.
at p. 546.) Bannister, however, said that 20 or more employees
were onboarded the same day by a Marinidence manager, who
entered information into a laptop computer as employees
answered questions. “No employee-specific user names or
passwords were required to access the onboarding portal, and
each employee’s Social Security number was available in the
employee’s personnel file.” [The manager] did not inform
Bannister or the other employees about an arbitration
agreement. According to Bannister, she never saw the
arbitration agreement and never clicked ‘I agree’ or otherwise
signed the arbitration agreement during the onboarding process.”
(Bannister, supra, 64 Cal.App.5th at p. 546 .) The trial court
denied Marinidence’s motion to compel arbitration.
The Court of Appeal affirmed, stating, “Substantial
evidence supports the trial court’s conclusion that Marinidence
failed to authenticate the electronic signature on the arbitration
agreement as Bannister’s. Marinidence’s evidence did not
establish that Bannister was assigned a unique, private user
name and password such that she is the only person who could
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have accessed the onboarding portal and signed the agreement;
instead, the evidence showed that the requisite ‘Client ID’ and
PIN code was not employee-specific, and [the manager] had
access to the information necessary to access the onboarding
portal via employee personnel records.” (Bannister, supra, 64
Cal.App.5th at p. 547.) The appellate court stated that it would
not disturb the trial court’s finding that Bannister’s version of
events was more credible, and “[b]ecause Bannister’s evidence
showed that she was not the only person who could have executed
the arbitration agreement, we disagree that the trial court
committed any legal error.” (Id. at p.548.)
By contrast, in Espejo, supra, 246 Cal.App.4th 1047, this
court held that the defendant employer, SCPMG, did sufficiently
authenticate the electronic signature of the plaintiff employee,
Dr. Espejo. This court stated that SCPMG’s declarant, Tellez,
“concluded that the ‘[plaintiff’s] name . . . could have only been
placed on the signature pages of the employment agreement and
the DRP [dispute resolution procedure] by someone using Dr.
Espejo’s unique user name and password. . . . [¶] Given this
process for signing documents and protecting the privacy of the
information with unique and private user names and passwords,
the electronic signature was made by Dr. Espejo’ on the
employment agreement and the DRP at the date, time, and IP
address listed on the documents. These details satisfactorily
meet the requirements articulated in Ruiz and establish that the
electronic signature on the DRP was ‘the act of’ Espejo (Civ.
Code, § 1633.9, subd. (a)), and therefore provide the necessary
factual details to properly authenticate the document.” (Espejo,
supra, 246 Cal.App.4th at p. 1062.)
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Here, the evidence shows Moncibaez was not the only
person who had access to, and could have signed, the arbitration
agreement. As Beezley stated in her declaration, Ramirez
accessed the document three times on July 10 and 11, 2017. The
notations about access do not state that a signature was entered
or that any other changes were made; each entry simply states
that the document was “published” at a certain time. Beezley
stated that “in the ordinary and usual course of business,
prospective talent and employees are prompted to create a unique
password upon initial login [to Stericycle’s online portal] so as to
maintain security of their electronic documents.” However,
Beezley did not state that a unique username and password was
the only way to access the arbitration agreement, thus
demonstrating that the electronic signature was “the act of”
Moncibaez alone. To the contrary, Ramirez also had access to the
document: he accessed it once before Moncibaez, and twice
afterward. Moreover, the signature on the arbitration agreement
reads “Paul Moncibaez,” a name Monciabaez states that he does
not typically use, suggesting that he may not have been the
person to enter his name into the online form. Because two
people accessed the document, Moncibaez does not typically use
the name entered on the form, and Moncibaez stated that he did
not recall signing it, substantial evidence supports the court’s
finding that defendants failed to meet their burden of
authenticating the electronic signature as “the act of” Moncibaez.
Defendants argue Moncibaez “supplied a litany of facts and
admissions indicating that he had signed the Arbitration
Agreement.” They cite Moncibaez’s statements that he was not
allowed to review any documents “before signing,” and that he
felt rushed as he clicked through the documents with Ramirez
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looking on. However, it was defendants’ burden to prove the
existence of an enforceable arbitration agreement by
authenticating the purported electronic signature. We are not
persuaded by defendants’ contentions that Moncibaez’s
declaration was insufficient to contradict defendants’ evidence, or
that the court should have afforded greater weight to certain
statements in Moncibaez’s declaration. Under substantial
evidence review, we neither judge the credibility of witnesses nor
reweigh the evidence. (See Fabian, supra, 42 Cal. App.5th at p.
1067.)
Substantial evidence supports the trial court’s holding that
defendants failed to authenticate the electronic signature, and
therefore did not establish the existence of an enforceable
arbitration agreement. We do not reach defendants’ remaining
arguments about the enforceability of the agreement.
DISPOSITION
The trial court’s order denying defendants’ motion to
compel arbitration is affirmed. Moncibaez is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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