Orozco v. Deutsche Bank National Trust CA2/4 ( 2021 )

Filed 12/21/21 Orozco v. Deutsche Bank National Trust 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MARTIN OROZCO, B299115
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC715312)
v.
DEUTSCHE BANK NATIONAL
TRUST COMPANY, as Trustee,
etc., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Mark V. Mooney, Judge. Affirmed.
Law Offices of Steven Rein and Steven Rein for Plaintiff and
Appellant.
Wright, Finlay & Zak, Jonathan D. Fink and Cathy K. Robinson
for Defendants and Respondents Deutsche Bank National Trust
Company, as Trustee, etc., and Select Portfolio Servicing, Inc.
Plaintiff Martin Orozco appeals from a judgment of dismissal
entered in favor of defendants Deutsche Bank National Trust Company,
as Trustee for Morgan Stanley ABS Capital 1 Inc. Trust 2005-HE6
Mortgage Pass-Through Certificates, Series 2005-HE6 (Deutsche) and
Select Portfolio Servicing, Inc. (SPS) (collectively, defendants) following
the sustaining of defendants’ demurrer to Orozco’s second amended
complaint. Finding no error, we affirm the judgment.
BACKGROUND
A. Factual Background
Our summary of the facts is taken from the allegations of the
second amended complaint, which allegations we assume are true under
the standard of review applicable to our review of a trial court’s ruling
on a demurrer. (LeBrun v. CBS Television Studios, Inc. (2021) 68
Cal.App.5th 199, 202 (LeBrun).)
In 2005, Orozco wanted to buy a home on Sixth Street in Los
Angeles (the property). Although he had enough cash to make a large
down payment and sufficient funds to make the monthly payments on a
mortgage, he could not qualify for a loan due to credit issues.
Unbeknownst to Orozco, Orozco’s real estate/loan broker, John
Martinez, and New Century Mortgage Corporation (New Century)
made a deal in which a third party who could qualify for the mortgage,
Miriam Perez, would be the borrower and purchaser of record of the
property, but Orozco would provide the funds for the down payment
($234,000) and make the monthly mortgage payments. Perez, who
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received compensation for her role in the scheme, signed a promissory
note and a deed of trust in favor of New Century on June 2, 2005.
In August 2005, Perez conveyed her interest in the property to
Martinez, and Martinez conveyed his interest to Orozco in March 2006.
Although Perez remained the obligor on the loan, Orozco made the loan
payments.1 Orozco alleges that at the time of the transaction he
believed he was the borrower and owned the property, and that he did
not become “fully aware” of the facts until 2009. At that time, he
brought a lawsuit against Martinez and Perez (New Century had
become defunct by then); he ultimately settled with Martinez, although
he was unable to collect on the settlement.
In June 2009, the note and deed of trust on the property were
assigned to Deutsche, and SPS became the loan servicer. Deutsche and
SPS accepted loan payments from Orozco and, in 2017, they were
parties to an arrangement in which the loan payments would be made
by direct debits from Orozco’s bank account.
In early 2017, Orozco sought a loan modification from defendants.
On June 10, 2017, SPS sent a letter addressed to Perez, stating she was
approved for a loan modification and enclosing a loan modification
agreement. Orozco believed the terms of the modification agreement
were unacceptable and sought to discuss the terms with SPS, but SPS
refused to speak to him because he was not the borrower on the loan.
1 The second amended complaint alleges that the lender would not accept
Orozco’s payments at first, but he subsequently was able to make them.
3
Frustrated by SPS’s refusal to speak to him and the threat of
foreclosure, Orozco brought the instant action.
B. Procedural Background
Orozco filed his original complaint in July 2018, alleging claims
against Deutsche, SPS, NDEx West, Inc. (apparently the trustee for the
foreclosure), and New Century for quiet title, injunctive relief, voiding
or reformation of loan, and declaratory relief. Deutsche and SPS filed a
demurrer to the complaint, and Orozco responded by filing a first
amended complaint alleging the same four causes of action.
In the quiet title cause of action, the first amended complaint
alleged that New Century did not have the power or standing to
transfer or assign its interest in the note and deed of trust to Deutsche
or SPS (because New Century was subject to a cease and refrain order
from the California Department of Corporations), and therefore the
assignment was void; Orozco sought to quiet title to the property in
himself, free and clear of all liens and encumbrances. The injunctive
relief cause of action incorporated by reference the allegations of the
quiet title cause of action and sought injunctive relief to enjoin
defendants from continuing with foreclosure proceedings. The next
cause of action, for voiding or reformation of loan, incorporated by
reference the allegations of the prior two causes of action, and alleged
that Orozco had been prevented from obtaining a loan modification
because defendants erroneously added $247,000 to the principal
amount of the loan, which caused the loan-to-value to be too high;
Orozco asked that the loan be voided or that the principal amount be
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reformed by deleting the $247,000 that had been added to the principal.
The final cause of action, for declaratory relief, incorporated the
previous allegations and alleged that an actual controversy existed
regarding the assignment of the note and deed of trust to Deutsche and
SPS and whether they had a right to foreclose; Orozco sought a judicial
determination of the rights, duties, and liabilities of the parties.
Deutsche and SPS filed a demurrer to the first amended
complaint. In his response/opposition to the demurrer, Orozco stated:
“After reviewing the demurrer and conducting legal research to address
the points raised in it, plaintiff requests the court to sustain the present
demurrer with leave to amend to file a Second Amended Complaint
(SAC), the amendments being designed in part to cure the defects in the
existing pleadings, in part to modify the allegations of the [first
amended complaint], in part to allege new or additional theories of
recovery.” Although the response/opposition stated that a copy of the
proposed second amended complaint was attached, there is no such
attachment in the record on appeal. The remainder of the
response/opposition summarized the allegations in the first amended
complaint, and discussed the corrections and additions Orozco proposed
to make in the second amended complaint, as well as the legal support
for his claims.
At the hearing on the demurrer on January 22, 2019, the trial
court sustained the demurrer with 20 days leave to amend. 2 Six days
2 Orozco elected to proceed on appeal without a reporter’s transcript,
therefore, we have no record of what was discussed at the hearing. The
minute order from the hearing states only that the trial court had read and
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later, Orozco filed the second amended complaint, the complaint at
issue here. The second amended complaint no longer named NDEx, Inc.
as a defendant, and alleged four causes of action: (1) unjust
enrichment; (2) injunctive relief; (3) negligent loan servicing; and
(4) declaratory relief.
In the first cause of action, for unjust enrichment, Orozco alleged
the facts regarding the origination of the loan, his funding of the down
payment, the transfers of title to the property, his making the loan
payments, and the proposed loan modification. He alleged that
defendants were unjustly enriched because he made loan payments and
a $234,000 down payment “without any reciprocal cooperation or
concessions by defendants.” He sought restitution of all of the
payments he had made, plus interest.
In the second cause of action, for injunctive relief, Orozco sought
to enjoin defendants from continuing with foreclosure proceedings. He
alleged he was entitled to such relief under Civil Code 3 section 2924.12,
subdivision (a)(1), based upon alleged violations of sections 2923.5,
2923.17,4 2924.11, or 2924.17 (we will refer to these provisions
generally as the California Homeowner Bill of Rights, or HBOR).
reviewed the material submitted in connection with the demurrer and heard
from counsel, and that the demurrer was sustained with leave to amend.
3 Further undesignated statutory references are to the Civil Code.
4 We note there is no section 2923.17; it appears Orozco meant to assert
2923.7.
6
In the third cause of action, for negligent loan servicing, Orozco
alleged that defendants, as beneficiary/servicer and assignee of the
loan, owed a duty to Orozco, as the “de facto borrower,” to use due and
reasonable care to consider and process the loan modification
application he submitted, to treat him as the “de facto borrower” and
discuss his concerns with him, and not to institute foreclosure
proceedings without making such efforts. He alleged that defendants’
conduct fell below the standard of care, causing him damage.
Finally, in the fourth cause of action, for declaratory relief, Orozco
alleged that he contends he is the “de facto borrower,” that defendants
are estopped by their conduct from asserting otherwise or from
asserting the defenses of lack of standing, unclean hands, or statute of
frauds, and that defendants had actual or constructive notice of facts he
has alleged. He alleged that defendants dispute these contentions, and
he asked for a judicial determination of the parties’ rights, duties, and
liabilities.
Defendants filed a demurrer to the entire complaint and to each
cause of action. As to the first and third causes of action (unjust
enrichment and negligent loan servicing), defendants argued that the
trial court did not authorize Orozco to add new causes of action when it
granted him leave to amend upon sustaining the demurrer to the first
cause of action, and therefore those new causes of action were
improperly pled. Defendants also argued that each cause of action
failed on multiple grounds. Finally, defendants argued that all of
Orozco’s claims arose from the alleged fraudulent agreement between
New Century, Martinez, and Perez that occurred in 2005, and therefore
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they all are barred by the three-year statute of limitations applicable to
fraud claims.
Orozco argued in opposition to the demurrer that his addition of
new causes of action was allowed because he indicated his intention to
do so in his response/opposition to the demurrer to the first amended
complaint and the trial court granted him leave to amend when it
sustained the demurrer. He also addressed most of the other grounds
raised by defendants, but did not address their statute of limitations
argument.
At the hearing on the demurrer, the trial court on its own motion
ordered the first and third causes of action stricken without leave to
amend. It sustained without leave to amend the demurrer to the second
cause of action (injunctive relief) on the grounds that it was barred by
the statute of limitations and there was no basis for injunctive relief.
Finally, it sustained without leave to amend the demurrer to the fourth
cause of action (declaratory relief) on the grounds that it was barred by
the statute of limitations and there was no actual controversy. The
court entered judgment in favor of Deutsche and SPS, from which
Orozco timely filed a notice of appeal.
DISCUSSION
Orozco contends the trial court erred in striking the first and third
causes of action because he gave notice of the changes he intended to
make in his proposed second amended complaint and the court granted
him leave to amend when it sustained defendants’ demurrer to the first
amended complaint. He also contends the court erred in sustaining the
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demurrer to the second amended complaint because none of the claims
is based upon fraud, and he alleged sufficient facts to state a claim as to
each cause of action. We need not determine whether the trial court
abused its discretion in striking the first and third causes of action
because we conclude defendants’ demurrer as to each cause of action
was well taken.
A. Standard of Review
“On review of a judgment of dismissal following the sustaining of a
demurrer, ‘our standard of review is clear: “‘We treat the demurrer as
admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law. [Citation.] We also consider
matters which may be judicially noticed.’ [Citation.] Further, we give
the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a
cause of action. [Citation.]”’” (LeBrun, supra, 68 Cal.App.5th at p. 207.)
We must affirm the judgment if it is correct on any theory. (City of
Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68
Cal.App.4th 445, 460 (City of Atascadero).)
When a demurrer is sustained without leave to amend, “‘“we
decide whether there is a reasonable possibility that the defect can be
cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of discretion
and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.”’ [Citation.] ‘Plaintiff must show
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in what manner he can amend his complaint and how that amendment
will change the legal effect of his pleading.’ [Citation.]” (LeBrun, supra,
68 Cal.App.5th at p. 207.) “[W]here the nature of the plaintiff’s claim is
clear, and under substantive law no liability exists, a court should deny
leave to amend because no amendment could change the result.” (City
of Atascadero, supra, 68 Cal.App.4th at p. 459.)
B. First Cause of Action
As noted, in his cause of action for unjust enrichment, Orozco
alleged that defendants were unjustly enriched because he made a
down payment and loan payments and did not receive “cooperation or
concessions” from defendants. Defendants raised five grounds in its
demurrer to this cause of action. First, defendants argued the claim
was barred by the three-year statute of limitations applicable to fraud.
Second, they asserted that the doctrine of unclean hands barred Orozco
from availing himself of the court’s equitable powers. Third, they
contended that unjust enrichment was a remedy, not a cause of action.
Fourth, they contended that Orozco failed to allege facts to show that
defendants were unjustly enriched. Finally, defendants asserted that
Orozco cannot seek the equitable remedy of unjust enrichment because
he did not “do equity.” Although the trial court did not rule on any of
these grounds because it struck the cause of action on the ground that
Orozco had not been given permission to add a new claim, we conclude
that defendants’ demurrer to this claim was well taken because Orozco
did not, and cannot, allege facts to show that defendants were unjustly
enriched.
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In his appellant’s opening brief, Orozco contends that defendants
were unjustly enriched because even though he made a down payment
and regular monthly payments to defendants and their predecessor, he
is under the threat of losing his home because of defendants’ refusal to
“discuss or consider a loan modification or [treat] him as the borrower
he in fact was, albeit de facto.” He misunderstands the doctrine of
unjust enrichment.
The equitable doctrine of unjust enrichment “applies where the
plaintiffs, while having no enforceable contract, nonetheless have
conferred a benefit on the defendant which the defendant has
knowingly accepted under circumstances that make it inequitable for
the defendant to retain the benefit without paying for its value.”
(Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938.) In the present
case, there was an enforceable contract, albeit not one to which Orozco
was a party, in which defendants’ predecessor provided funds that
allowed Perez to purchase the property, and Perez agreed to make
monthly payments. The fact that Orozco agreed to make the monthly
payments in place of Perez does not mean that Orozco conferred a
benefit on defendants that it would be inequitable for defendants to
retain. Defendants (or their predecessor) were entitled to those
payments in exchange for the benefit they already had conferred, i.e.,
the funds they advanced for the purchase of the property.
Because Orozco cannot allege that he conferred a benefit on
defendants that they were not entitled to retain, he cannot seek to
recover under the unjust enrichment doctrine. Therefore, defendants
were entitled to judgment on the first cause of action.
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C. Second Cause of Action
In his second cause of action, Orozco alleged he was entitled to
injunctive relief under the HBOR. In their demurrer defendants
challenged this cause of action on four grounds: (1) the fraud statute of
limitations barred the claim; (2) injunctive relief is a remedy, not a
cause of action; (3) Orozco does not have standing to seek injunctive
relief under the HBOR; and (4) Orozco cannot allege any facts to
support injunctive relief. The trial court sustained the demurrer on the
grounds that the claim was barred by the statute of limitations and that
there was no basis for injunctive relief. We find that the statute of
limitations does not bar this claim because the claim as alleged was not
based upon fraud, but instead was based upon defendants’ alleged
refusal to discuss or negotiate a loan modification with Orozco in 2017
and 2018, less than a year before the original complaint was filed.
Nevertheless, we conclude the demurrer properly was sustained
because Orozco does not have standing to seek injunctive relief under
the HBOR.
The purpose of the HBOR “is to ensure that, as part of the
nonjudicial foreclosure process, borrowers are considered for, and have
a meaningful opportunity to obtain, available loss mitigation options, if
any, offered by or through the borrower’s mortgage servicer, such as
loan modifications or other alternatives to foreclosure.” (§ 2923.4.) To
advance this purpose, the HBOR includes various provisions to protect
and assist borrowers, such as (1) requiring a mortgage servicer to
contact the borrower to assess the borrower’s financial situation and
explore options for the borrower to avoid foreclosure before the
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mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent
may record a notice of default (§ 2923.5); (2) requiring a mortgage
servicer to establish a single point of contact and provide the borrower
one or more direct means of communication with that point of contact
when the borrower requests a foreclosure prevention alternative
(§ 2923.7); (3) prohibiting the recordation of a notice of default or notice
of sale if a foreclosure prevention alternative is approved in writing and
the borrower is in compliance with its terms (§ 2924.11); and
(4) requiring a mortgage servicer to ensure that it has reviewed
competent and reliable evidence to substantiate the borrower’s default
and the mortgagee’s right to foreclose before recording or filing a notice
of default, notice of sale, or other specified documents (§ 2924.17).
To enforce these provisions, the HBOR includes a provision that
allows “a borrower [to] bring an action for injunctive relief to enjoin a
material violation of Section . . . 2923.7, . . . 2924.11, or 2924.17.”
(§ 2924.12, subd. (a).) As this and the other provisions of the HBOR
clearly state, the protections afforded under the act apply only to a
borrower.5 Here, the only borrower identified on the deed of trust at
issue is Perez.
Orozco contends, however, that whether he is a borrower is a
disputed factual issue, arguing that (1) defendants are estopped to
5 “Borrower” is defined in the HBOR as “any natural person who is a
mortgagor or trustor and who is potentially eligible for any federal, state, or
proprietary foreclosure prevention alternative program offered by, or
through, his or her mortgage servicer.” (§ 2920.5, subd. (c)(1).)
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assert that he is not a borrower, and/or (2) he is a “de facto borrower.”
Neither argument has merit.
First, the doctrine of equitable estoppel does not apply under the
facts of this case. The doctrine is codified in section 623 of the Evidence
Code, which provides: “Whenever a party has, by his own statement or
conduct, intentionally and deliberately led another to believe a
particular thing true and to act upon such belief, he is not, in any
litigation arising out of such statement or conduct, permitted to
contradict it.” “‘“Generally speaking, four elements must be present in
order to apply the doctrine of equitable estoppel: (1) the party to be
estopped must be apprised of the facts; (2) he must intend that his
conduct shall be acted upon, or must so act that the party asserting the
estoppel had a right to believe it was so intended; (3) the other party
must be ignorant of the true state of facts; and (4) he must rely upon the
conduct to his injury.”’” (Honeywell v. Workers’ Comp. Appeals Bd.
(2005) 35 Cal.4th 24, 37.) “Although estoppel is generally a question of
fact, where the facts are undisputed and only one reasonable conclusion
can be drawn from them, whether estoppel applies is a question of law.”
(Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346,
1360.)
In the present case, Orozco contends defendants are estopped from
denying that he is the borrower because New Century knew that the
down payment and monthly loan payments would be paid by Orozco,
and that knowledge is imputed to defendants, who accepted the loan
payments from Orozco. But even if it is true that New Century had
such knowledge and that knowledge was imputed to defendants (issues
14
we do not decide), the undisputed evidence is that defendants
consistently maintained that Perez, not Orozco, was the borrower. In
fact, documents Orozco attached as exhibits to his complaints show that
all correspondence from defendants or their predecessors regarding the
loan, including notices of default and the proposed loan modification
agreement, was addressed to Perez, and Orozco alleged that defendants
would not communicate with him regarding the loan because he was not
the borrower. The fact that defendants and their predecessors accepted
payments from Orozco is not evidence that they accepted that he was
the actual borrower, since the deed of trust expressly states that the
lender’s acceptance of payments from a third party shall not act as a
waiver of the lender’s rights and remedies against the borrower.
Moreover, Orozco was well aware of the true fact that Perez, and
not he, was the borrower of record on the loan and deed of trust.
Indeed, he alleged in the lawsuit that he filed in 2009 against Martinez
and Perez that he discovered in 2006 that the loan was in Perez’s name
and that when he faced foreclosure (sometime before that lawsuit was
filed) “he [was] unable to refinance because the loan is in PEREZ’S
name,” and Perez refused to work with him to try to modify the loan
unless she was paid $12,000.
In other words, as a matter of law, Orozco cannot establish the
second and third elements necessary for estoppel to apply.
Orozco’s second argument—that he is a “de facto borrower”—
similarly cannot save his second cause of action. Orozco has not cited
to, and we have not found, any authority establishing “de facto
borrower” as a legal designation. His attempt to characterize it as an
15
application of “[t]he de facto doctrine” by pointing to California’s
recognition of de facto mergers and de facto parents is misguided. First,
the California Legislature expressly recognized de facto mergers by
enacting Corporations Code section 1200, which codified the de facto
merger doctrine originally adopted in federal courts. There is no such
legislation (or court-adopted designation) with regard to “de facto
borrower.” Second, while courts have long recognized that a person
may be designated a de facto parent in dependency cases, that
designation does not entitle the de facto parent to all of the rights
accorded to an actual or presumed parent. Instead, “[d]e facto parent
status merely allows a person who has assumed the role of parent of a
child to participate in the court hearings and share their ‘legitimate
interests and perspectives’ with the juvenile court as it makes decisions
about the child’s future care and welfare. . . . The status merely
provides a way for the de facto parent to stay involved in the
dependency process and provide information to the court.” (In re Bryan
D. (2011) 199 Cal.App.4th 127, 146.) In light of the unique purpose and
procedures of the dependency process, the recognition of de facto parent
status has no bearing on whether any other de facto status should be
recognized.
In any event, even if we were to recognize “de facto borrower”
status, Orozco’s attempt to assert a claim under the HBOR necessarily
fails because the HBOR applies only to a “borrower” as defined in that
act, and that definition limits a “borrower” to a mortgagor or trustor.
Because the deed of trust makes clear that Perez— and only Perez—is
the mortgagor and the trustor with regard to the loan at issue here, we
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conclude that Orozco has not stated, and cannot state, a claim for
injunctive relief under the HBOR.
D. Third Cause of Action
Orozco’s negligent loan servicing claim alleges that defendants
breached their duty of care owed to him as a “de facto borrower” by, in
essence, failing to comply with the provisions of the HBOR. Defendants
challenged this cause of action on several grounds, including that it fails
to allege facts sufficient to state a cause of action because defendants
did not owe any duty to Orozco because he was not a borrower.
Although the trial court struck the cause of action on the ground that
Orozco had not been given permission to add a new claim, we conclude
that defendants’ demurrer to this claim was well taken because Orozco
did not, and cannot, allege facts to show that defendants owed him any
duty.
As discussed in section C., ante, defendants were not required to
comply with the provisions of HBOR with respect to Orozco because he
was not a borrower as defined in that act. Similarly, the cases Orozco
cites in support of his assertion that defendants owed him a duty of care
do not apply here, since they all involved the duties owed by lenders
and/or loan servicers to the actual borrower. (See Daniels v. Select
Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150 [plaintiffs were
the borrowers under a deed of trust]; Alvarez v. BAC Home Loans
Servicing, L.P. (2014) 228 Cal.App.4th 941 [plaintiffs sought to obtain a
modification of their home loan]; Lueras v. BAC Home Loans Servicing,
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LP (2013) 221 Cal.App.4th 49 [plaintiff refinanced his home loan,
secured by a trust deed against his home]; Jolley v. Chase Home
Finance, LLC (2013) 213 Cal.App.4th 872 [plaintiff entered into a
construction loan agreement with lender].) Accordingly, we conclude
that Orozco did not, and cannot, state a cause of action for negligent
loan servicing against defendants.
E. Fourth Cause of Action
In his claim for declaratory relief, Orozco alleges that there is an
actual controversy regarding whether he is a “de facto borrower,”
whether the estoppel doctrine applies to defendants, and whether
defendants had actual or constructive notice of the facts regarding the
alleged agreement between New Century, Martinez, and Perez. The
trial court sustained defendants’ demurrer to this claim on two grounds:
it was barred by the statute of limitations, and there was no actual
controversy. As we discussed in section C., ante, undisputed evidence
establishes that the estoppel doctrine does not apply, and there is no
legal basis to recognize a “de facto borrower” status. In light of the fact
that, as a matter of law, defendants are not estopped from denying
Orozco’s status as a borrower and owe him no duty of care as a “de facto
borrower,” whether defendants had actual or constructive notice of the
facts surrounding the origination of the loan is irrelevant. Therefore,
Orozco’s allegation cannot be a basis for a declaratory relief claim. (City
of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [a plaintiff seeking
declaratory relief are required to allege the existence of an actual,
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present controversy].) Accordingly, the trial court did not err in
sustaining the demurrer to the fourth cause of action.
DISPOSITION
The judgment is affirmed. Defendants Deutsche and SPS shall
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
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