Payne v. County of Los Angeles CA2/2 ( 2020 )

Filed 11/30/20 Payne v. County of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
WHITFIELD DERICK PAYNE, B299112
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC720423)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County. Terry A. Green, Judge. Affirmed.
Whitfield Derick Payne, in pro. per., for Plaintiff and
Appellant.
Nelson & Fulton, Henry Patrick Nelson and Elise H. Hur
for Defendant and Respondent County of Los Angeles.
Garrett & Tully, Candie Y. Chang and Charles G. Gomez
for Defendant and Respondent B&D Property Investment, LLC.
Haven Law and Peter T. Haven for Defendants and
Respondents Hawthorne Business Center, LLC, 3719 Canfield
Avenue, LLC, Evans-Milner, LLC, 3530 Hughes Avenue, LLC,
E III Real Estate Investments, Inc. and CA Exchange, LLC.
Kaufman Dolowich Voluck, Andrew J. Waxler and Jennifer
E. Newcomb for Defendant and Respondent Joel D. Ruben.
_________________________________
Whitfield Derick Payne appeals from an order granting
respondents’ motion to strike under Code of Civil Procedure
section 426.16, the anti-SLAPP statute.1 Respondents
Hawthorne Business Center, LLC, 3719 Canfield Avenue, Evans-
Milner, LLC, 3530 Hughes Avenue, LLC, E III Real Estate
Investments, Inc. and CA Exchange, LLC (collectively HBC)
obtained a stipulated unlawful detainer judgment against Payne
concerning office units that Payne leased from HBC. Respondent
Joel D. Ruben was their lawyer.
The judgment required Payne to pay past due rent and
holdover damages. On behalf of his clients, Ruben obtained a
writ of execution to collect on the judgment. The writ was levied
on a rental property that Payne owned on Visalia Avenue in
Compton (the Visalia Property). After Payne made several
unsuccessful attempts to avoid the sale of that property through
bankruptcy filings, respondent B&D Property Investment, LLC
(B&D) purchased the property at a sheriff’s sale.
1Subsequent undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
lawsuit against public participation.” (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
2
Payne then filed this lawsuit, seeking damages and return
of the Visalia Property on various causes of action alleging that
the sale of the property was improper.2
We affirm. Payne’s claims arise from conduct that is
protected under section 425.16. Those claims are all based on
alleged communicative conduct in connection with litigation or
other official government proceedings. And Payne failed to show
that he was likely to prevail on his claims. The conduct that
Payne challenges was protected by the litigation privilege, and in
any event Payne did not provide evidence of any wrongdoing.
BACKGROUND
1. The Unlawful Detainer Action
Payne previously rented two office units in Inglewood from
HBC (the Inglewood Property). Payne fell behind in his rent in
2015, and HBC, represented by Ruben, filed an unlawful detainer
action (the UD Action) to evict him.
Payne then filed a chapter 13 bankruptcy petition. HBC
successfully moved for relief from the bankruptcy stay under title
11 United States Code sections 362(d)(1) and 362(d)(2). Payne’s
bankruptcy case was subsequently dismissed on January 13,
2016.
The UD Action settled on the day of trial. Payne stipulated
to a judgment dated December 16, 2015 (the UD Judgment). The
UD Judgment awarded possession of the Inglewood Property to
2 Payne sued HBC and Ruben on various claims relating to
alleged fraud, he sued the County of Los Angeles (County) on the
ground that it allowed the sheriff’s sale to proceed, and he sued
B&D for the return of the Visalia Property and for quiet title. We
refer to HBC, Ruben, B&D, and the County collectively as
Respondents.
3
HBC and required Payne to vacate the property by January 15,
2016. The UD Judgment also awarded $25,000 to HBC for past
due rent and holdover damages. The UD Judgment contained a
standard provision with a checked box indicating that Payne’s
security deposit “shall be retained by the plaintiff and
defendant(s) waive(s) any claim to its return.” A handwritten
addition to that paragraph stated that “[t]he $25,000 under ¶ 2
above and the security deposit will be all the damages Plaintiffs
are entitled to through January 15, 2016.”3
Another handwritten addition to the UD Judgment stated
that Payne “will amend his Chapter 13 plan in his bankruptcy
case, and any payments made under the plan will be credited
against the $25,000 under ¶ 2 above.” The UD Judgment was
entered the following day, on December 17, 2015.
2. Enforcement of the UD Judgment
In preparation for executing the money judgment, HBC
obtained a writ of execution on December 22, 2015, and an
abstract of judgment (subsequently amended) on January 15,
2016. On May 6, 2016, the Los Angeles County Sheriff’s
Department (Sheriff) levied the writ of execution on the Visalia
Property.
3 As discussed further below, Payne claimed that Ruben
checked the box forfeiting Payne’s security deposit and added the
handwritten provision after Payne had already executed the
stipulation for the UD Judgment. Ruben denied this allegation,
testifying that he checked the box concerning the security deposit
and made all the handwritten additions to the UD Judgment
pursuant to the parties’ agreement before the stipulation was
executed. Payne did not submit any evidence supporting his
allegation.
4
In response to the levy, Payne filed an ex parte application
in superior court seeking to vacate the writ. Payne argued that
the writ was not authorized by the UD Judgment. Payne claimed
that he and HBC “agreed as to the method whereby the judgment
would be satisfied, and that was through [Payne’s] Bankruptcy
Chapter 13 Plan. No alternate method of collection was agreed
to, for had that been the case, [Payne] would not have executed
the judgment, and would have gone to trial.”
The trial court denied Payne’s ex parte application. The
trial court’s ruling was later affirmed in an opinion by the
appellate division of the superior court on May 10, 2018.
(Hawthorne Business Center v. Payne (May 10, 2018, No.
BV031883, App. Div. Super. Ct. L.A. County [nonpub. opn.]).)
In July 2016, Payne filed another bankruptcy petition. In
May 2017 the bankruptcy court confirmed a chapter 13 plan in
that proceeding, which included a payment schedule.
HBC received distributions from Payne’s second
bankruptcy in the amount of $5,282.90. However, on February
26, 2018, the bankruptcy court granted a motion by the trustee to
dismiss the bankruptcy case on the ground that Payne had failed
to make payments required under the chapter 13 plan.
According to the trustee, at the time the motion was filed in
November 2017, Payne was delinquent in payments under the
payment plan in the amount of $10,104. The dismissal order
stated that “debtor is prohibited from filing any new bankruptcy
petition within 180 days of the date of entry of this order.”
Following the dismissal, HBC filed a notice in the UD
Action stating that the bankruptcy stay had terminated. HBC
also filed an “Acknowledgment of [Partial] Satisfaction of
5
Judgment” reflecting the $5,282.90 that it had received from the
bankruptcy proceeding.
HBC then requested that the Sheriff proceed with the sale
of the Visalia Property. The Sheriff noticed the sale for April 18,
2018.
On April 3, 2018, Payne filed another ex parte application
in superior court seeking an injunction to preclude the sale. The
application alleged that Ruben had given false information to the
Sheriff concerning the amount due on the UD Judgment. The
court denied the application.
Payne then filed a third bankruptcy petition on April 13,
2018. A few days later, prior to the Sheriff’s sale, Payne filed a
“Defendant’s Notice of Chapter 13 Protection” in the UD Action,
claiming that the bankruptcy filing stayed all proceedings.
Despite that filing, the Sheriff’s sale of the Visalia Property
proceeded as scheduled on April 18, 2018.
B&D purchased the Visalia Property for $164,000. HBC
received $26,284.05 from the sale. The remaining amount was
disbursed to Payne.
On May 22, 2018, the bankruptcy court issued an order to
show cause re dismissal (OSC), citing Payne’s “apparent attempt
to use a false social security number and violation of a prohibition
against filing any new bankruptcy petition within 180 days
pursuant to the dismissal order entered on February 26, 2018.”
The bankruptcy court dismissed Payne’s third bankruptcy case
following the hearing on the OSC.
3. Payne’s Complaint
Payne filed his complaint in this action on September 4,
2018. The complaint alleged that Ruben and HBC altered the
UD Judgment in two ways after Payne had executed the
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stipulation for the judgment. After obtaining Payne’s signature,
Ruben allegedly checked the box indicating that Payne had
agreed to surrender his security deposit, and also added the
handwritten language “to falsely indicate that the $25,000
principal and Security Deposit were damages merely for the
period of time until January 15, 2016, a date one month
thereafter.”
The complaint also alleged that Ruben and HBC provided
false information to the Sheriff in connection with the sale of the
Visalia Property. Ruben allegedly provided lienholder
instructions to the Sheriff identifying the judgment amount as
$25,000, without crediting Payne’s security deposit or the amount
that HBC had received from Payne’s second bankruptcy. Ruben
also allegedly informed the Sheriff that it was appropriate to
proceed with the sale despite Payne’s third bankruptcy filing on
April 13, 2018.
The complaint alleged causes of action for conversion;
negligence; quiet title; fraud; interference with prospective
economic advantage; unfair business practices; intentional
infliction of emotional distress; and “restitution.”
4. The Anti-SLAPP Motions
Ruben filed an anti-SLAPP motion. The motion was
supported by his own declaration with exhibits explaining the
sequence of events concerning the UD Judgment and the steps
Ruben took on behalf of HBC to enforce it. HBC, B&D, and the
County joined in the motion.
In opposition, Payne submitted a memorandum and his
own brief declaration. The declaration did not respond to
Ruben’s description of the relevant events, but simply asserted
7
that the UD Judgment did not allow an abstract of judgment or a
“Writ of Execution/Money Judgment.”
The trial court granted the anti-SLAPP motions. The court
ruled that Payne’s claims arose from protected petitioning
activity under section 425.16, subdivision (e), as they concerned
Respondents’ “efforts to levy on a stipulated judgment.”
The court also found that Payne had failed to meet his
burden of demonstrating a probability of success on his claims.
The court concluded that Payne “has no probability of prevailing,
because enforcing a court judgment is protected by the litigation
privilege set forth in Civil Code § 47(b).” The court also found
that the “record reveals no wrongdoing” by Respondents.
DISCUSSION
1. The Anti-SLAPP Procedure
Section 425.16 provides for a “special motion to strike”
when a plaintiff asserts claims against a person “arising from any
act of that person in furtherance of the person’s right of petition
or free speech under the United States Constitution or the
California Constitution in connection with a public issue.”
(§ 425.16, subd. (b)(1).) Such claims must be stricken “unless the
court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (Ibid.)
Thus, ruling on an anti-SLAPP motion involves a two-step
procedure. First, the “moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
396 (Baral).) At this stage, the defendant must make a
“threshold showing” that the challenged claims arise from
protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056 (Rusheen).)
8
Second, if the defendant makes such a showing, the
“burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.)
Without resolving evidentiary conflicts, the court determines
“whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment.” (Ibid.) The
plaintiff’s showing must be based upon admissible evidence.
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th
204, 212.)
Section 425.16, subdivision (e) defines the categories of acts
that are in “ ‘furtherance of a person’s right of petition or free
speech.’ ” Those categories include “any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law,” and “any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official
proceeding authorized by law.” (§ 425.16, subd. (e)(1)–(2).)
An appellate court reviews the grant or denial of an anti-
SLAPP motion under the de novo standard. (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1067.)
2. Payne’s Claims Arise from Protected Activity
A cause of action that arises from a defendant’s litigation
activity challenges protected petitioning conduct and is therefore
subject to an anti-SLAPP motion. (§ 425.16, subd. (e)(1);
Rusheen, supra, 37 Cal.4th at p. 1056.) A claim arises from
protected litigation conduct if it seeks liability based upon
“communicative conduct such as the filing, funding, and
9
prosecution of a civil action. [Citation.] This includes qualifying
acts committed by attorneys in representing clients in litigation.”
(Rusheen, at p. 1056.) Thus, “all communicative acts performed
by attorneys as part of their representation of a client in a
judicial proceeding . . . are per se protected as petitioning activity
by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177
Cal.App.4th 471, 480; see Birkner v. Lam (2007) 156 Cal.App.4th
275, 281 [“The prosecution of an unlawful detainer action
indisputably is protected activity within the meaning of section
425.16”].)
Payne’s claims primarily challenge the conduct of Ruben
and HBC in obtaining and enforcing the UD Judgment against
the Visalia Property. The claims are based on communicative
acts by Ruben and HBC.
Payne’s complaint alleges that Ruben: (1) falsely told
Payne during settlement discussions that the UD Judgment
would be less than $25,000 after accounting for Payne’s security
deposit and sums that HBC received from Payne’s prior
bankruptcy proceedings; (2) altered the UD Judgment after
Payne had stipulated to it; (3) filed a memorandum of costs and
lienholder instructions for the Sheriff’s sale that failed to account
for sums that should have been deducted from the judgment
amount; and (4) falsely told the Sheriff that it was appropriate to
proceed with the sale of the Visalia Property despite Payne’s
initiation of new bankruptcy proceedings shortly before the sale.
In opposing Respondents’ anti-SLAPP motions, Payne also
argued that Ruben committed fraud by failing to disclose in
settlement negotiations that he intended to levy a writ of
execution against the Visalia Property. These were all alleged
10
communications related to the UD Action. Payne’s claims
therefore arise from protected litigation conduct.
Payne’s complaint also alleges that the County is liable for
conversion and/or negligence because it improperly proceeded
with the Sheriff’s sale after learning of Payne’s bankruptcy filing.
Government entities may invoke the anti-SLAPP statute when
they are sued for conduct falling within the protection of the
statute. (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17–18;
Schaffer v. City and County of San Francisco (2008) 168
Cal.App.4th 992, 1003–1004.) The County’s alleged act of
proceeding with the sale may not itself have been a “statement or
writing” for purposes of section 425.16, subdivisions (e)(1) and (2).
However, that act was “necessarily related” to the alleged
wrongful communicative acts leading to the sale. (See Rusheen,
supra, 37 Cal.4th at p. 1065 [litigation privilege extended to act of
enforcing a writ of execution allegedly obtained through fraud];
Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212
Cal.App.4th 1283, 1294–1297 (Tom Jones) [claim against the
County for negligent levy of a writ of execution was barred by the
litigation privilege]; Flatley v. Mauro (2006) 39 Cal.4th 299, 322–
323 (Flatley) [“Past decisions of this court and the Court of
Appeal have looked to the litigation privilege as an aid in
construing the scope of section 425.16, subdivision (e)(1) and
(2)”].)
Moreover, Payne’s complaint also predicated the County’s
liability on protected communications. The complaint alleges
that “[t]he Notice of the Sheriff’s Sale failed to disclose that the
Real Property was an asset of a bankruptcy estate in a pending
bankruptcy action. The Sheriff’s Department likewise failed to
announce to the members of the public in attendance at the
11
Sheriff’s Sale that the Real Property was an asset of a
bankruptcy estate.”
Finally, Payne did not argue below and does not argue on
appeal that his claims against the County arise from unprotected,
noncommunicative conduct. He has therefore forfeited the issue.
(Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785
[“When an appellant fails to raise a point . . . we treat the point
as waived”].)
On appeal, Payne does not dispute that his claims arise
from litigation activity by Ruben and HBC. He argues only that
Ruben’s alleged conduct is not within the scope of the anti-
SLAPP statute because Ruben and HBC engaged in fraud and
“extortion.” In Payne’s reply brief, he supports that argument
with a citation to our Supreme Court’s decision in Flatley.
In Flatley, the court held that a defendant cannot meet his
or her burden to show that the plaintiff’s claims arise from
protected activity when “either the defendant concedes, or the
evidence conclusively establishes, that the assertedly protected
speech or petition activity was illegal as a matter of law.”
(Flatley, supra, 39 Cal.4th at p. 320.) The court emphasized that
a plaintiff’s mere allegation of illegality is not sufficient to
preclude a defendant from showing that his or her challenged
conduct is protected under section 425.16: “If, however, a factual
dispute exists about the legitimacy of the defendant’s conduct, it
cannot be resolved within the first step [of the anti-SLAPP
procedure] but must be raised by the plaintiff in connection with
the plaintiff’s burden to show a probability of prevailing on the
merits.” (Flatley, at p. 316; see also Birkner v. Lam, supra, 156
Cal.App.4th at p. 285 [“ ‘[C]onduct that would otherwise come
within the scope of the anti-SLAPP statute does not lose its
12
coverage . . . simply because it is alleged to have been unlawful or
unethical’ ”], quoting Kashian v. Harriman (2002) 98 Cal.App.4th
892, 910–911.)
Respondents dispute that they engaged in any unlawful
activity. And, in responding to Respondents’ anti-SLAPP
motions, Payne did not provide any evidence of alleged illegal
activity, much less evidence that “conclusively establishes” that
Respondents engaged in unlawful activity “as a matter of law.”
(Flatley, supra, 39 Cal.4th at p. 320.)
Payne’s declaration in opposition to the anti-SLAPP
motions did not support any of his allegations of fraud. The
declaration simply asserted that “[t]here were no terms” in the
stipulated UD Judgment that allowed an abstract of judgment or
a writ of execution. That was not evidence of fraud or of any
other kind of wrongdoing.4
The UD Judgment contained a money judgment in favor of
HBC, which HBC was entitled to collect by executing against
Payne’s assets using the legal mechanisms available to enforce
judgments. No express provision in the UD Judgment was
necessary to give HBC the right to execute the judgment against
real property that Payne owned. (See § 695.010, subd. (a)
[“Except as otherwise provided by law, all property of the
judgment debtor is subject to enforcement of a money
judgment”].)
Moreover, the superior court rejected this same argument.
As discussed above, long before the Sheriff’s sale Payne moved
4Nor was it even admissible. The trial court sustained
Ruben’s objections to this testimony, and Payne does not
challenge that ruling on appeal.
13
unsuccessfully to vacate the writ of execution levied on the
Visalia Property on the ground that the UD Judgment did not
authorize that relief. The appellate division of the superior court
affirmed the order denying that motion, rejecting Payne’s
argument that the UD Judgment “did not allow [HBC] to enforce
the judgment by levying on his real property.” (Hawthorne
Business Center v. Payne, supra, No. BV031883.) Payne could not
prove that Ruben and HBC engaged in fraudulent litigation
conduct by pursuing a remedy that two courts had already ruled
was proper.
Payne failed to provide any proof of fraud, much less proof
that was conclusive as a matter of law. Respondents therefore
met their burden under the first step of the anti-SLAPP
procedure.
3. Payne Failed to Show a Probability of Success
The trial court correctly ruled that Payne’s claims would
fail because enforcement of the UD Judgment was protected
under the litigation privilege. The litigation privilege established
by Civil Code section 47 applies to “ ‘any communication (1) made
in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the
litigation; and (4) that have some connection or logical relation to
the action.’ ” (Rusheen, supra, 37 Cal.4th at p. 1057, quoting
Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege
applies to communications in connection with litigation, even if
those communications include false claims or perjurious evidence.
(Rusheen, at p. 1058.) And the privilege applies to the alleged
wrongful enforcement of a judgment if the plaintiff’s claim of
wrongdoing is based upon communicative conduct during the
litigation. (Id. at pp. 1062–1063.)
14
As discussed above, Payne’s claims against Ruben, HBC
and B&D are based on alleged fraud in procuring and enforcing
the UD Judgment. The alleged fraud consisted of communicative
acts that are protected by the litigation privilege. Payne’s claims
against the County are also barred by the litigation privilege, as
they are based on alleged negligence that is necessarily related to
communicative acts. (See Rusheen, supra, 37 Cal.4th at p. 1065;
Tom Jones, supra, 212 Cal.App.4th at pp. 1294–1297.)5
Payne therefore failed to meet his burden under the second
step of the anti-SLAPP procedure, and the trial court correctly
granted Respondents’ anti-SLAPP motions.
4. The Timing of the Hearing on Respondents’
Anti-SLAPP Motions Did Not Preclude the Trial
Court from Considering Them
Payne argues that the trial court did not have jurisdiction
to consider the Respondents’ anti-SLAPP motions because the
motions were heard more than 30 days after they were served.
Payne relies on section 425.16, subdivision (f), which provides
that an anti-SLAPP motion “shall be scheduled by the clerk of the
5 Payne also did not provide any evidence supporting his
claim that the County was negligent in proceeding with the sale
of the Visalia Property while a bankruptcy proceeding was
pending. Payne did not rebut Respondents’ evidence that the
bankruptcy proceeding was Payne’s third such proceeding, which
Payne filed under a different social security number and in
violation of the bankruptcy court’s prior order prohibiting Payne
from filing any other bankruptcy action for 180 days. As the trial
court correctly observed, under title 11 United States Code
section 362(b)(21), a bankruptcy petition does not stay
enforcement of a lien against real property if the petition was
filed in violation of a bankruptcy court order in a prior case.
15
court for a hearing not more than 30 days after the service of the
motion unless the docket conditions of the court require a later
hearing.”
Payne’s argument fails for several reasons. First, Payne
did not raise the argument or object to the timing of the hearing
in the trial court and he has therefore forfeited the issue. (San
Ramon Valley Fire Protection Dist. v. Contra Costa County
Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 351–
352.)
Second, Payne’s argument is wrong on the merits. As this
court explained in Karnazes v. Ares (2016) 244 Cal.App.4th 344,
“a trial court may not properly deny an anti-SLAPP motion on
the grounds that the hearing was not scheduled within 30 days
after service of the motion. Instead, section 425.16, subdivision
(f) ‘requires the court clerk to schedule a special motion to strike
for a hearing no more than 30 days after the motion is served if
such a hearing date is available on the court's docket, but does
not require the moving party to ensure that the hearing is so
scheduled and does not justify the denial of a special motion to
strike solely because the motion was not scheduled for a hearing
within 30 days after the motion was served.’ ” (Karnazes, at
p. 352, quoting Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th
1337, 1349.)
Payne cites his prior experience in filing a motion to “Set
Aside [a] Judgment” under section 660. However, that motion
was subject to a different rule. Unlike the anti-SLAPP statute,
section 660 (which governs a motion for a new trial) and section
663a (which governs a motion to set aside a judgment) expressly
require that the court’s power to rule on the motion expires 75
days after service of notice of the judgment. Those sections state
16
that, if that time expires, “the effect shall be a denial of the
motion without further order of the court.” (§ 660, subd. (c); §
663a, subd. (b).)
5. Payne’s Claim of Bias Is Baseless
Payne argues that the trial judge was biased against him
because of his race. Nothing in the record supports that
allegation. The trial court made a correct legal ruling based upon
a well-supported anti-SLAPP motion. We therefore reject the
argument.
DISPOSITION
The trial court’s order is affirmed. Respondents are
entitled to their costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
17