Gularte v. Southern Cal. Edison Co. CA2/8 ( 2023 )

Filed 8/28/23 Gularte v. Southern Cal. Edison Co. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
FRANCIS B. GULARTE, B320793
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCV42579)
v.
SOUTHERN CALIFORNIA
EDISON COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Daniel J. Buckley, Judge. Affirmed.
Singleton Schreiber, Benjamin I. Siminou, Harini P.
Raghupathi, and Jonna D. Lothyan for Plaintiff and Appellant.
Hueston Hennigan, John C. Hueston, Douglas J. Dixon,
Craig A. Fligor; Belynda S. Reck, Patricia A. Cirucci, and Brian
Cardoza for Defendant and Respondent.
_____________________________
Francis B. Gularte appeals the trial court’s order
sustaining Southern California Edison Company’s (Edison)
demurrer to his complaint, which sought relief for damages
caused by the Thomas Fire, a massive wildfire that engulfed
large portions of Santa Barbara and Ventura Counties. We hold
that Gularte’s complaint was barred by the statute of limitations
and his causes of action were not tolled under the class action
tolling rule articulated in American Pipe & Construction Co. v.
Utah (1974) 414 U.S. 538 (American Pipe) and Jolly v. Eli Lilly &
Co. (1988) 44 Cal.3d 1103 (Jolly). Accordingly, we affirm.
BACKGROUND
I. The Thomas Fire
The Thomas Fire began on December 4, 2017, when
Edison’s electrical equipment allegedly ignited surrounding
vegetation south of Thomas Aquinas College from which the fire
gets its name.
When the Thomas Fire was finally contained on January
12, 2018, it was the largest wildfire in California’s history.
It burned 281,000 acres in Santa Barbara and Ventura Counties,
resulted in numerous fatalities and injuries, destroyed more than
1,000 structures (including 775 homes), forced over 100,000
residents to evacuate, caused over 250,000 residents to lose
power, and forced numerous highway and road closures that
severely restricted access to the affected areas.
In addition to the extensive damages caused directly by the
flames and smoke, the Thomas Fire combined with heavy rains
resulted in devastating mudslides that killed at least 21 people
and destroyed or damaged more than 450 homes. The mudslides
ruptured gas mains, caused power outages, and compromised the
affected area’s water supply. The mudslides also forced the
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closure of U.S. Highway 101 and other roads, making travel to
some areas impossible.
II. Class action complaint
On January 24, 2018, less than two weeks after the
Thomas Fire was contained, a group of individuals and entities
filed a class action complaint against Edison in the Los Angeles
Superior Court, alleging they had suffered property, economic,
and evacuation-related damages because of the fire and
subsequent mudslides. (Frost v. Southern California Edison Co.
(Super. Ct. L.A. County, 2018, No. BC691146 (Frost).) The Frost
complaint alleged causes of action for negligence, inverse
condemnation, public nuisance, private nuisance, premises
liability, trespass, violation of Public Utilities Code section 2106,
violation of Health and Safety Code section 13007, and negligent
interference with prospective economic advantage.
The Frost complaint’s class definition included “all
individuals residing in California who, as of December 4, 2017
and/or January 9, 2018, lived in, worked in, were offered and
accepted work in, or owned or leased real or personal property” in
Santa Barbara and Ventura Counties. It also included all
California entities that owned, operated, or leased a physical
facility; provided services while physically present; or owned or
leased real property in Santa Barbara and Ventura Counties.
In April 2018, Frost was coordinated with other Thomas
Fire cases into Judicial Council Coordination Proceeding
No. 4965. In July 2018, the trial court allowed individual
Thomas Fire suits to proceed but indefinitely stayed all putative
class claims, including Frost. To date, the Frost class has not
been certified.
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III. Gularte’s complaint
On November 18, 2021, Gularte filed an individual action
against Edison, alleging causes of action for inverse
condemnation, negligence, trespass, nuisance, violation of Public
Utilities Code section 2106, and violation of Health and Safety
Code section 13007.
The complaint contains few individual details regarding
Gularte or the damages he suffered. It identified Gularte as “an
individual who was, at all times relevant to this pleading,
homeowner, business owners [sic], resident, occupant, and/or had
property located in Ventura and Santa Barbara Counties.” The
complaint alleged that the Thomas Fire caused Gularte to suffer
substantial harm, including “damage to and/or . . . out-of-pocket
expenses directly and proximately incurred as a result of the fire;
alternative living expenses; evacuation expenses; personal
injuries; wrongful death; medical bills; lost wages; loss of earning
capacity; loss of business income and/or goodwill; and various
types of emotional distress, annoyance, inconvenience,
disturbance, mental anguish, and loss of quiet enjoyment of
property.”
To address the applicable three-year statute of limitations,
Gularte alleged his delayed discovery of Edison’s wrongdoing and
that his causes of action were subject to class action tolling. With
regard to class action tolling, Gularte alleged his claims were
“identical” and relied on the ”same facts” as Frost, and that “he
would fit into a subclass” under the proposed class definition.
Although Gularte did not identify Frost in his complaint, Edison
deduced, and Gularte later confirmed, he was referring to that
case.
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IV. Edison’s demurrer
Edison demurred to Gularte’s complaint on the grounds
that his causes of action were time-barred under Code of Civil
Procedure section 338, subdivisions (a), (b), and (j)’s three-year
statute of limitations, including the additional 178 days from
April 6, 2020 to October 1, 2020, that was afforded to all
California plaintiffs’ civil causes of action due to the COVID-19
pandemic. (See Cal. Rules of Court, Emergency rule 9(a)
[“Notwithstanding any other law, the statutes of limitations . . .
for civil causes of action that exceed 180 days are tolled from
April 6, 2020, until October 1, 2020”].) Because Gularte alleged
that his property was damaged by the Thomas Fire on December
4, 2017, the statute of limitations for each of his causes of action
ran on May 31, 2021. Gularte filed his complaint 171 days later
on November 18, 2021, and did not dispute that the applicable
statutes of limitations had lapsed. However, he argued that his
claims should be tolled by the delayed discovery rule and tolled
by Frost under American Pipe and Jolly.
The trial court sustained Edison’s demurrer, finding that
the complaint failed to allege facts supporting delayed discovery
or that Frost tolled the statute of limitations under American
Pipe and Jolly. Because Gularte did not provide additional
allegations to cure his defective complaint, the trial court denied
leave to amend.
Gularte appealed.
DISCUSSION
I. Standard of review
We review an order sustaining a demurrer de novo.
(McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412,
415.) We exercise our independent judgment to determine
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whether the complaint states a cause of action as a matter of law.
(Villafana v. County of San Diego (2020) 57 Cal.App.5th 1012,
1016.) We accept as true all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) We will affirm the
judgment of dismissal if the demurrer was proper on any grounds
even if the trial court sustained the demurrer on a different basis.
(Carman v. Alvord (1982) 31 Cal.3d 318, 324.) The plaintiff bears
the burden on appeal to show the trial court erred by sustaining
the demurrer. (Rakestraw v. California Physicians’ Service
(2020) 81 Cal.App.4th 39, 42–43.)
“A statute of limitations defense may be asserted by
general demurrer if the complaint shows on its face that the
statute bars the action.” (SLPR, L.L.C. v. San Diego Unified Port
Dist. (2020) 49 Cal.App.5th 284, 316.) “ ‘In order for the bar of
the statute of limitations to be raised by demurrer, the defect
must clearly and affirmatively appear on the face of the
complaint; it is not enough that the complaint shows that the
action may be barred.’ ” (Geneva Towers Ltd. Partnership v. City
of San Francisco (2003) 29 Cal.4th 769, 781.)
We review the trial court’s denial of leave to amend for
abuse of discretion. (Traders Sports v. City of San Leandro
(2001) 93 Cal.App.4th 37, 43.) The plaintiff must show there is a
reasonable possibility that the defective complaint can be cured
by amendment. (Friedland v. City of Long Beach (1998)
62 Cal.App.4th 835, 841–842.)
II. Class action tolling under American Pipe and Jolly
Gularte’s sole contention on appeal is that Frost tolled the
statute of limitations for his individual claims under the class
action tolling rule established by the United States Supreme
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Court in American Pipe, supra, 414 U.S. 538, and adopted by our
Supreme Court in Jolly, supra, 44 Cal.3d 1103. Gularte
abandoned his delayed discovery argument on appeal.
In American Pipe, the United States Supreme Court held
where class certification has been denied for a failure to
demonstrate that the class is so numerous that joinder of all class
members is impracticable, the filing of the class action tolls the
statute of limitations for members of the putative class, who
make timely motions to intervene. (American Pipe, supra,414 U.S. at pp. 552–553.) The American Pipe court believed its
holding would preserve the efficiency and economy of class action
litigation, by circumventing the need for potential class members
to file preventative motions to intervene prior to class
certification in the event certification was denied for
unforeseeable and “subtle” factors. (Id. at pp. 553–554.)
American Pipe, supra, 414 U.S. at page 554, explained that
its holding was consistent with statutes of limitations, which are
“ ‘designed to promote justice by preventing surprises through the
revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses have
disappeared.’ ” This is because when plaintiffs commence a class
action, defendants may be put on notice “not only of the
substantive claims being brought against them, but also of the
number and generic identities of the potential plaintiffs who may
participate in the judgment.” (Id. at pp. 554–555.) Thus, the
filing of a class action may provide defendants with the essential
information necessary to determine both the subject matter and
size of the prospective litigation. (Id. at p. 555.)
In interpreting American Pipe, our Supreme Court in Jolly
directed lower courts to consider two primary policy
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considerations before applying American Pipe’s class action
tolling rule: (1) the protection of the class action device, and
(2) the effectuation of the purpose of the statute of limitations.
(Jolly, supra, 44 Cal.3d at p. 1119.)
On the first consideration, Jolly explained that courts must
determine whether tolling would serve to further the efficiency
and economy of class action litigation. (Jolly, supra, 44 Cal.3d at
p. 1122.) Courts must ask whether failure to apply class action
tolling would induce individuals to file protective motions to
intervene in the event class certification was denied for “subtle”
factors unforeseeable by potential class members. (Id. at
p. 1121.) This will depend on whether the claims asserted on
behalf of the putative class were sufficiently similar to the absent
class members’ individual claims, such that the absent class
members would have reasonably relied on the class action and
postponed filing individual lawsuits. (Id. at p. 1125.)
Regarding the second consideration, Jolly emphasized the
importance of avoiding a particular abuse that would arise if
plaintiffs were “ ‘free to raise different or peripheral claims
following denial of class status,’ ” and admonished trial courts to
“ ‘take care to ensure that the suit raises claims that “concern the
same evidence, memories, and witnesses as the subject matter of
the original class suit,” so that “the defendant will not be
prejudiced.” ’ ” (Jolly, supra, 44 Cal.3d at p. 1124.) Jolly
instructed lower courts to “exercise discretion in applying the
American Pipe rule in order to ‘prevent the type of abuse
mentioned above and [to] preserve a defendant whole against
prejudice arising from claims for which he has received no prior
notice.’ ” (Id. at p. 1125.)
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Ultimately, Jolly held that both American Pipe policy
considerations are satisfied when: “ ‘a named plaintiff who is
found to be representative of a class commences a suit and
thereby notifies the defendants not only of the substantive claims
being brought against them, but also of the number and generic
identities of the potential plaintiffs who may participate in the
judgment.’ ” (Jolly, supra, 44 Cal.3d at p. 1121.)
Applying these policy considerations to the facts before it,
the Jolly court found class action tolling did not apply. (Jolly,
supra, 44 Cal.3d at p. 1122.) The individual plaintiff in Jolly
sued various pharmaceutical companies for personal injuries
caused by a drug that her mother ingested during pregnancy.
(Id. at p. 1120.) Because her claims were barred by the
applicable statute of limitations, the plaintiff argued a prior class
action involving the same drug tolled her individual causes of
action under American Pipe. (Jolly, at p. 1120.)
In declining to apply class action tolling, the Jolly court
found the prior class action neither put defendants on notice of
the substance and nature of the individual plaintiff’s claims, nor
served to further the economy and efficiency of class action
litigation. (Jolly, supra, 44 Cal.3d at p. 1122.) Jolly noted that
the class action procedure had “consistently been rejected” in
other cases that involved the same drug at issue. (Id. at p. 1123.)
The court also found that the same reasons that rendered mass-
tort claims generally unsuitable for class certification supported
its decision not to apply class action tolling under American Pipe,
explaining the major elements in tort actions for personal injury
will vary widely from claim to claim. (Ibid.) Thus, the filing of
the class action “could not have apprised defendants of plaintiff’s
substantive claims.” (Ibid.)
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Although Jolly stopped short of categorically barring class
action tolling in mass-tort actions, it warned that because those
cases “can rarely meet the community of interest requirement in
that each member’s right to recover depends on facts peculiar to
each particular case, such claims may be presumptively incapable
of apprising defendants of ‘the substantive claims being brought
against them,’ ” which was a prerequisite to apply class action
tolling under American Pipe. (Jolly, supra, 44 Cal.3d at p. 1125.)
III. Gularte’s claims were not tolled by Frost
We conclude class action tolling under American Pipe and
Jolly does not apply here, therefore, Gularte’s complaint is time-
barred.
Jolly did not create a categorical bar to class action tolling
in mass-tort actions, however, we find that Frost, which has been
coordinated with thousands of other individual lawsuits related
to the Thomas Fire, is “presumptively” incapable of apprising
Edison of the substantive claims being brought against it,
including Gularte’s. (Jolly, supra, 44 Cal.3d at p. 1125.) Frost’s
class definition is so broad, encompassing every individual and
entity in California with some connection to the massive area
affected by the Thomas Fire, who suffered any kind of property,
economic, or evacuation-related damages, that it could never
sufficiently notify Edison of “the number and generic identities of
the potential plaintiffs who may participate in the judgment.”
(Id. at p. 1121.) As such, Frost failed to provide Edison with the
prerequisite notice of Gularte’s claims, which Jolly held was
critical to apply class action tolling under American Pipe.
Both of Jolly’s policy considerations also weigh against
applying class action tolling here.
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On the first policy consideration—whether applying class
action tolling would protect the class action device—we find it
would not. In assessing this first consideration, we are to
determine whether declining to apply class action tolling would
induce individuals to file protective motions in the event class
certification was denied for “subtle” factors unforeseeable by
potential class members. (Jolly, supra, 44 Cal.3d at p. 1121.) We
must also determine whether the claims asserted on behalf of the
class are sufficiently like those of absent class members such that
they would postpone filing individual lawsuits. (See id. at
p. 1125.)
Neither of those underlying factors support the conclusion
that applying class action tolling to Gularte’s complaint would
protect the class action device.
First, declining to apply class action tolling would not
induce potential class members to file protective motions to
intervene in the event class certification was denied for “subtle”
factors. (See Jolly, supra, 44 Cal.3d at p. 1121.) Plaintiff has
cited no cases (and we are aware of none) where class treatment
was appropriate after a mass accident that resulted in widely
varied property damage, like the wildfire case at bar. (See
Hildebrandt v. Staples the Office Superstore, LLC (2020)
58 Cal.App.5th 128, 144 (Hildebrandt) [finding failure to apply
class action tolling to an individual’s employment
misclassification claim would induce potential class members to
file protective motions to intervene because misclassification
claims were often suitable for class treatment].) Indeed, in the
only published wildfire case cited by the parties, the court found
denial of class certification was foreseeable because many
purported class members opposed class certification, arguing the
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class definition was flawed, individual questions predominated
over common ones, and that individual actions were superior to
class treatment. (Perkin v. San Diego Gas & Electric Co. (2014)
225 Cal.App.4th 492, 508 (Perkin).)
Second, even though Gularte and the Frost plaintiffs
alleged some of the same causes of action, that does not
necessarily mean the claims asserted on behalf of the Frost class
are sufficiently similar such that Gularte could reasonably
postpone filing his individual suit. Mass-tort actions are
generally not appropriate for class certification because proof of
major elements will vary widely from claim to claim. (See Jolly,
supra, 44 Cal.3d at p. 1123.) Thus, even though the trial court
has yet to determine whether class certification is appropriate in
Frost, it was not reasonable for Gularte to postpone his suit. As
Jolly expressly warned, mass-tort actions may be presumptively
incapable of putting a defendant on notice of an individual’s
untimely claims, and an individual plaintiff should presume that
lack of commonality will defeat certification and preclude
application of American Pipe. (Id. at pp. 1121, 1125.) We also
note that the Thomas Fire cases have been coordinated into a
single proceeding, which Jolly recognized as an alternative
means to achieve some of the benefits of the class action device.
(Id. at p. 1125, fn. 19.)
As to the second policy consideration—whether applying
class action tolling is consistent with and would effectuate the
purpose of statutes of limitations—we conclude it would not. As
stated previously, Frost’s class definition is so broad and the
injuries so varied that the complaint could not sufficiently notify
Edison of the substantive claims being brought against it or of
the number and generic identities of the potential plaintiffs who
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could participate in the judgment. (Jolly, supra, 44 Cal.3d at
p. 1121.) Indeed, the class definition includes any individual or
entity in California that had some connection to Santa Barbara
and Ventura Counties at the time of the Thomas Fire. Likewise,
the categories of damages range from any type of property,
economic, or evacuation-related damages that included any lost
income, earnings, or profits. Given the broad class definition and
damages categories, the number of potential plaintiffs is
exceptionally expansive. Accordingly, we find that Frost failed to
sufficiently notify Edison of Gularte’s individual causes of action,
and applying class action tolling would be inconsistent with the
purpose of the statute of limitations.
Our conclusion is consistent with case authority cited by
both parties.
We find Perkin, supra, 225 Cal.App.4th 492, particularly
instructive. Like the instant case, Perkin involved individual
plaintiffs suing a utility company for causing a massive wildfire
that burned hundreds of thousands of acres and destroyed over
1,000 homes. (Id. at pp. 494–495.) The individual plaintiffs filed
their complaint after the statute of limitations had run and
argued that the filing of a prior class action tolled their claims
under American Pipe. (Perkin, at p. 498.) The class definitions
consisted of all persons and entities in California whose property
had been destroyed or damaged by various wildfires. (Ibid.)
Perkin found this broad class definition alone was sufficient to
deny the application of American Pipe. (Perkin, at p. 508.) As
mentioned above, Perkin also found that applying class action
tolling would not protect the class action because the trial court
did not deny class certification for “ ‘subtle factors’ ”
unforeseeable by class members, as many purported class
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members argued against class certification with over 1,400
plaintiffs filing individual suits against the utility company for
damages caused by the wildfire. (Ibid.) We find no reason to
depart from Perkin’s holding in the wildfire case at bar.
Gularte attempts to distinguish Perkin, arguing that the
class definition here is narrower because it only encompasses
those individual plaintiffs whose property was located within
Santa Barbara and Ventura Counties. However, like Perkin, the
class here includes putative class members across the state.
Moreover, the Frost class is potentially broader than the classes
in Perkin because it includes property damage, as well as
economic and evacuation damages.
Hildebrandt, supra, 58 Cal.App.5th 128, is also instructive.
In Hildebrandt, the court applied class action tolling under
American Pipe and Jolly to an employee’s individual
misclassification and wage and hour causes of action.
(Hildebrandt, at p. 132.) Hildebrandt held that prior class
actions tolled the individual plaintiff’s causes of action because
the individual and class action complaints both involved the
employer’s misclassification of the same general manager
position. (Id. at p. 142.) As such, even though the class was
statewide, the prior class actions sufficiently put the employer on
notice of the number and generic identities of the potential
plaintiffs. (Ibid.) Hildebrandt, at page 141, noted that the
employee’s misclassification claims were significantly narrower
than Perkin’s wildfire claims, where “potential plaintiffs were not
limited to a set number from a specific, clearly defined area,” and
could have included anyone “in California claiming that their
properties were damaged in some way” by the wildfire. Further,
Hildebrandt found that applying class action tolling would
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protect the class action device because it was reasonable for the
individual plaintiff to rely on the class action complaint to
postpone filing his own lawsuit because misclassification cases
were not presumptively unsuitable for class treatment. (Id. at
p. 144.)
Here, unlike Hildebrandt, it was not reasonable for Gularte
to rely on Frost to delay filing his individual lawsuit. Gularte has
not pointed to a single class action brought after a catastrophic
event like the Thomas Fire, and we are aware of none, where
class certification was appropriate. Indeed, in the only wildfire
case cited by the parties, class certification was denied. (See
Perkin, supra, 225 Cal.App.4th at p. 496.) Further, unlike
Hildebrandt, where the employer admitted it could reasonably
identify every potential class member upon the commencement of
the class action, there was no way Edison could know the number
and generic identities of the potential plaintiffs based on the all-
encompassing class definition and damages categories in Frost.
And, although knowledge of the exact identities of potential
plaintiffs is unnecessary to apply class action tolling, Frost could
not even notify Edison of the approximate number or generic
identities of potential plaintiffs required under American Pipe
and Jolly.
Gularte cites to Becker v. McMillin Construction Co. (1991)
226 Cal.App.3d 1493 (Becker) and San Francisco Unified School
District v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318 (San
Francisco), to argue that class action tolling should apply here.
However, both cases are distinguishable.
In Becker, supra, 226 Cal.App.3d 1493, a property
developer was sued for construction defects within a 620-home
development. (Id. at p. 1497.) The Becker court found the filing
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of a prior class action regarding the same construction defects
against the developer provided sufficient notice that a certain
number of homeowners within the development were
experiencing construction defects. (Id. at p. 1501.) Therefore,
Becker held the class action tolled the causes of action of the
individual plaintiffs who sued the developer after the statute of
limitations had ran. (Ibid.) Given that the construction defects
were limited to a single development, Becker found that the
number of potential claimants was ascertainable to a significant
degree, and the generic identities of potential plaintiffs were
“obvious.” (Ibid.) Notably, Becker warned against a “too-liberal
interpretation of the rule set out in American Pipe,” and that the
class action at issue was “unusual” in that the potential plaintiffs
were finite and could be located through their residence in the
development. (Id. at p. 1502.)
In San Francisco, supra, 37 Cal.App.4th 1318, a
construction company was sued for using asbestos-containing
products in its construction of school buildings. (Id. at p. 1323.)
Plaintiff opted out of a class action and filed an individual
lawsuit after the limitations period had expired. (Id. at pp. 1323–
1324, 1336.) Like Becker, the San Francisco court found that
class action tolling applied because the construction company was
fairly on notice of the plaintiff’s claims as the prior class action
raised the same claims, and the class members could be identified
through public contracts. (Id. at p. 1339.)
Gularte argues this case is like Becker and San Francisco
because Frost notified Edison that certain property owners in
Santa Barbara and Ventura Counties had experienced property
damage. Again, Gularte mischaracterizes and narrows the scope
of the Frost complaint. As pleaded, the Frost complaint’s class
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definition is virtually unlimited to any individual or entity in
California that suffered any property, economic, or evacuation-
related damages directly or indirectly caused by the Thomas Fire,
which burned hundreds of thousands of acres in two counties,
and had a devastating rippling effect that went far beyond the
geographic area directly affected by the fire. Unlike Becker and
San Francisco, there is no means for Edison to reasonably
identify all or even approximate the number of potential
plaintiffs. Becker and San Francisco are not analogous and do
not support the application of class action tolling here.
For the above reasons, we conclude that Gularte’s causes of
action were not tolled by Frost and were thus time-barred.
IV. The trial court did not abuse its discretion in
denying leave to amend
Finally, we find the trial court did not abuse its discretion
in denying Gularte leave to amend. We note that Gularte
provided some additional details in his appellate briefs as to the
damages he suffered from the Thomas Fire, stating his ranch in
Ventura County was damaged and needed to be evacuated.
However, even if Gularte added these allegations to his
complaint, they would be insufficient to warrant application of
class action tolling. This is because it is not necessarily Gularte’s
complaint that is deficient, but the Frost complaint’s failure to
put Edison on notice of Gularte’s individual causes of action. (See
Jolly, supra, 44. Cal.3d at p. 1124 [finding deficiency in class
action complaint alone was sufficient to deny plaintiff relief
under American Pipe].) Simply put, there is no reasonable
probability that Gularte could cure this fatal defect with
amended allegations. (Friedland v. City of Long Beach, supra,
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62 Cal.App.4th at pp. 841–842.) Therefore, we find no abuse of
discretion.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
GILBERT, J.

Presiding Justice of the Court of Appeal, Second Appellate
District, Division Six, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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