Francis Parker School v. O'Brien CA4/1 ( 2023 )

Filed 12/20/23 Francis Parker School v. O’Brien CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FRANCIS PARKER SCHOOL, D081291
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2020-
00043797-CU-BC-CTL)
MICHAEL O’BRIEN et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth J. Medel and Eddie C. Sturgeon, Judges. Affirmed.
Law Offices of David J. Gittelman and David J. Gittelman; Law Offices
of Mary A. Lehman and Mary A. Lehman for Defendants and Appellants.
Littler Mendelson and Mattheus E. Stephens for Plaintiff and
Respondent.
Michael and Julie O’Brien1 appeal the summary judgment Francis
Parker School (the School) obtained against them for withdrawing their
children from the School and refusing to pay the balance of tuition for the
academic year after the entire amount of tuition had become due, payable,
and nonrefundable. The O’Briens contend: (1) the provisions of the contract
requiring them to pay the full amount of tuition for the academic year
constitute an invalid provision for liquidated damages; (2) the superior court
erroneously ruled the School had no obligation to mitigate damages; and
(3) the court erroneously denied their motions to compel further responses to
written discovery requests concerning the School’s efforts to mitigate
damages. We reject the O’Briens’ contentions and affirm the judgment.
I.
BACKGROUND
A. Enrollment and Withdrawal
The O’Briens enrolled their four children in the School for the academic
year from September 3, 2019, to June 12, 2020, on February 11, 2019. They
did so by accessing the Web site of a third party (Tuition Aid Data Services)
the School uses to provide a platform for enrollment of students, payment of
tuition, and purchase of a tuition refund plan for students who withdraw.
The following language appeared under the heading “School Terms and
Conditions”: “By signing below, the person(s) completing this Tuition
Agreement, expressly acknowledge and agree that you (we) are responsible
for the full amount of tuition and the timely payment of tuition when Your
student is accepted for enrollment, pursuant to the following terms and
conditions:
1 The complaint identifies the defendants as Michael and Julie O’Brien.
In their answer, the O’Briens assert “Michael” is erroneous and should be
“Mike.”
2
“1. •The entire amount of tuition is due and payable on
or before Friday, June 14, 2019, unless you withdraw
your student before Friday, June 14, 2019. In the
event the student withdraws on or after June
14, 2019, tuition is NONREFUNDABLE.
“2. •Tuition payments will not be refunded or discharged
in the event of an unpaid obligation if Your student is
absent, withdraws, or is dismissed for any reason at
any time.
“3. •[The School] is at no time required to offset its
damages due to withdrawal by enrolling another
student, nor is it obligated to mitigate its damages
due to withdrawal or separation, in the event Your
student withdraws or is otherwise separated from
[the School].
“4. •In the unlikely event that tuition is not paid, or only
paid in part, [the School] will exercise its right to
collection to the fullest extent of the law, including
but not limited to, sending the account to a collection
agent of [the School’s] choice and/or legal action.”
The O’Briens electronically signed the Tuition Agreement.
The O’Briens chose to pay the tuition in installments. That choice
obligated them to purchase a tuition refund plan from another third party
(A.W.G. Dewar, Inc.), which was offered “[i]n consideration of [the]
unconditional obligation to pay the entire amount of tuition when [a] student
is accepted for enrollment,” and would allow them to recover 75 percent of the
unused tuition if the children withdrew from the School for certain reasons.
The Tuition Agreement included an itemization of the tuition, transportation
fee, and tuition refund plan premium for each child, which totaled
$117,532.52.
3
On August 30, 2019, the O’Briens withdrew their children from the
School. By that time, they had made installment payments totaling $29,689,
and, with interest and other charges, owed an additional $98,329.24. The
O’Briens made no further payments.
B. Litigation
1. Pleadings
The School filed a complaint against the O’Briens in the superior court
to recover the unpaid portion of the tuition for the 2019–2020 academic year.
It asserted counts for breach of contract and two common counts (open book
account and account stated).
The O’Briens filed an answer in which they asserted a general denial
and 22 affirmative defenses. The fourth affirmative defense was that the
School was barred from recovery because it had failed to make any attempt to
mitigate damages. The eighth affirmative defense was that the School’s
recovery had to be reduced by any monies paid by students who filled the
vacancies created by the withdrawal of the O’Briens’ children. No defense
challenged any specific term of the tuition agreement as unenforceable.
2. Discovery
The O’Briens served the School with special interrogatories, demands
for production of documents, and requests for admissions seeking information
on admissions standards, student withdrawals, waiting lists, and efforts to
fill the vacancies created by the withdrawal of their children before the 2019–
2020 academic year began. The School objected to the written discovery
requests on the grounds, among others, that the requests sought information
that was neither relevant nor likely to lead to the discovery of admissible
evidence and the disclosure of which would violate the privacy rights of third
parties. With exceptions for information or documents concerning the
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O’Briens’ children, the School provided no substantive responses to the
interrogatories and produced no documents, admitted some requests for
admissions, and denied others.
The O’Briens filed motions to compel further responses to their written
discovery requests. They argued the information they sought regarding the
School’s admissions and waiting lists was relevant to mitigation of damages,
and its disclosure would not violate anyone’s right to privacy. The School
opposed the motions on the grounds it had no duty to mitigate damages and
thus discovery on that issue was inappropriate, and disclosure of information
about persons admitted or on a waiting list would violate their privacy rights.
The superior court held a hearing and denied the O’Briens’ motions.
The court ruled “discovery related to mitigation [of damages] is irrelevant or
unlikely to lead to the discovery of admissible evidence given that the Tuition
Agreement states: ‘[The School] is at no time required to offset its damages
due to withdrawal by enrolling another student, nor is [i]t obligated to
mitigate its damages due to withdrawal or separation, in the event Your
student withdraws or is otherwise separated from [the School].’ ”
3. Summary Judgment
The School filed a motion for summary judgment or, in the alternative,
for summary adjudication. (Code Civ. Proc., § 437c.) It argued there was no
dispute the O’Briens withdrew their children after the full amount of tuition
had become due, payable, and nonrefundable and did not pay the full
amount. The School further agued the O’Briens had asserted no recognized
defense to its claims. In support of the motion, the School submitted a
declaration from the Head of School, who described in general the School’s
planning, budgeting, and enrollment process, and in particular the O’Briens’
enrollment and withdrawal of their children for the 2019–2020 academic year
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without paying the full amount of tuition, and authenticated the Tuition
Agreement and other documents. The School also submitted a declaration
from its counsel, who attached the Tuition Agreement, discovery responses,
documents produced in discovery, and other documents.
The O’Briens opposed the motion on several grounds. They argued: (1)
the School failed to prove the existence of a contract, because the School did
not sign the Tuition Agreement; (2) any portion of the tuition they did not pay
was covered by the tuition refund plan they had purchased; (3) they could
rescind the Tuition Agreement based on unilateral mistake, because they did
not understand they would have to pay the full amount of tuition even if they
withdrew their children; (4) the School interfered with the tuition refund plan
by refusing to allow their children to attend the School for 14 days as
required by the plan; (5) the School filled one of the vacancies created by the
withdrawal of the children, and there were triable questions of fact on
whether the School took reasonable steps to mitigate damages by trying to fill
the others; and (6) the School could not satisfy the elements of its common
counts. With their opposition, the O’Briens submitted declarations from
themselves describing their enrollment and withdrawal of the children from
the School and various communications they had with the School, and
authenticating the Tuition Agreement, e-mail communications with the
School, and other documents. The O’Briens’ counsel submitted a declaration
authenticating and attaching discovery-related documents.
The superior court held a hearing and granted the motion for summary
judgment. The court ruled the School had proved the existence of a contract
(the Tuition Agreement the O’Briens signed), its performance of the contract
(by planning the academic year with the enrolled students in mind), the
O’Briens’ breach of the contract (by refusing to pay the full amount of tuition
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after it became due, payable, and nonrefundable), and resulting damages
($98,329.24 in unpaid tuition). The court rejected the arguments the
O’Briens made in their opposition papers, including the argument about
mitigation of damages. As to that argument, the court noted the O’Briens
had provided no authority the duty to mitigate could not be waived and no
evidence the provision relieving the School of that duty was unconscionable.
The court further ruled the School’s evidence establishing the elements of the
count for breach of contract also established the elements of the common
counts.
The superior court later entered a judgment against the O’Briens for
$98,329.24. From that judgment, they appealed. (Code Civ. Proc., §§ 437c,
subd. (m)(1), 904.1, subd. (a)(1).)
II.
DISCUSSION
The O’Briens contend the superior court erred by granting the School’s
motion for summary judgment. They argue the provisions of the Tuition
Agreement requiring payment of full tuition, disallowing refunds, and
relieving the School of any obligation to mitigate damages, even though they
withdrew their children before the academic year started, amount to an
unenforceable liquidated damages clause. The O’Briens alternatively argue
that if the challenged provisions do not amount to an unenforceable
liquidated damages clause, the superior court erred in ruling the School could
contract out of its legal obligation to mitigate damages. They finally argue
the court erroneously denied them discovery into the School’s actual damages
and its efforts to mitigate damages. The O’Briens ask us to reverse the
summary judgment and to remand the matter to the superior court with
directions to allow them “to litigate the validity of the damages provisions of
7
the Tuition Agreement and to allow discovery into [the School’s] actual
damages, including whether and how [the School] exercised its duty to
mitigate.”
A. Order Granting Motion for Summary Judgment
We first consider the O’Briens’ challenge to the superior court’s order
granting the School’s motion for summary judgment. Such a motion is
properly granted when there is no triable issue of material fact and the
moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).) We review the order de novo. (Dore v. Arnold Worldwide,
Inc. (2006) 39 Cal.4th 384, 388–389; Thompson v. Ioane (2017) 11
Cal.App.5th 1180, 1195.) We must determine whether the School met its
initial burden to prove each element of its cause of action. (Code Civ. Proc.,
§ 437c, subd. (p)(1); Meda v. Autozone, Inc. (2022) 81 Cal.App.5th 366, 374;
Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226,
241.) If the School met its burden, we then must determine whether the
O’Briens met their burden to submit evidence establishing a triable issue of
material fact as to an element of the cause of action or a defense thereto.
(Code Civ. Proc., § 437c, subd. (p)(1); Meda, at p. 374; Law Offices of Dixon R.
Howell v. Valley (2005) 129 Cal.App.4th 1076, 1091–1092.) In making these
determinations, we liberally construe the evidence in favor of the O’Briens as
the parties opposing the motion and resolve all doubts about the evidence in
their favor. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39; Dore, at p. 389; J.P.
Morgan Trust Co. of Delaware v. Franchise Tax Bd. (2022) 79 Cal.App.5th
245, 262.)
The School met its initial burden on the motion. To establish the count
for breach of contract, the School had to prove: (1) existence of a contract; (2)
performance by the School; (3) nonperformance by the O’Briens; and (4) harm
8
resulting from the nonperformance. (Aton Center, Inc. v. United Healthcare
Ins. Co. (2023) 93 Cal.App.5th 1214, 1230; CSAA Ins. Exchange v. Hodroj
(2021) 72 Cal.App.5th 272, 276.) The School did so by submitting the Tuition
Agreement the O’Briens signed and the declaration of the Head of School,
who authenticated the Tuition Agreement; stated the School had reserved
spaces for the O’Briens’ children for the 2019–2020 academic year and
budgeted and planned in consideration of their enrollment for the year;
asserted the O’Briens withdrew the children after the full amount of tuition
had become due, payable, and nonrefundable without paying that amount;
and identified the balance due. This evidence also sufficed to establish a
prima facie case for the common counts, which merely restated the count for
breach of contract. (See Farmers Ins. Exchange v. Zerin (1997) 53
Cal.App.4th 445, 460 [common count elements are statement of indebtedness
in certain sum, consideration, and nonpayment]; Rains v. Arnett (1961) 189
Cal.App.2d 337, 344 [common count available when defendant prevents full
performance by plaintiff or repudiates contract].)
The burden then shifted to the O’Briens to “set forth the specific facts
showing that a triable issue of material fact exists as to the cause of action or
a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) In the superior
court, they tried to meet this burden by showing that no contract existed,
because the School did not sign the Tuition Agreement; that they could
rescind the contract, because they were mistaken about their obligation to
pay the full amount of tuition if they withdrew their children after the stated
deadline; that the tuition refund plan would have paid the remaining balance
had the School not prevented it from taking effect; and that the School could
not recover the full amount of tuition, because it had filled one of the
vacancies created by the withdrawal of their children and could have further
9
mitigated damages by filling the others. (See pt. I.B.3., ante.) Except for the
mitigation argument, which we discuss below, on appeal the O’Briens have
not renewed any of these arguments. We therefore deem the other
arguments abandoned and do not address them. (Tiernan v. Trustees of Cal.
State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Joshi v. Fitness
Internat., LLC (2022) 80 Cal.App.5th 814, 826.)
The primary argument the O’Briens urge on appeal is a new one. They
claim the provisions of the Tuition Agreement making the full amount of
tuition for the 2019–2020 academic year due and payable by June 14, 2019,
and nonrefundable if their children withdrew on or after that date and
relieving the School of any obligation to mitigate damages together constitute
an unenforceable liquidated damages clause. Citing Civil Code section
1671,2 the O’Briens argue the Tuition Agreement is a “consumer contract” in
which such a clause is presumptively void. (See, e.g., Cell Phone Termination
Fee Cases (2011) 193 Cal.App.4th 298, 322.) The School responds that the
O’Briens forfeited this argument by not making it in the superior court. The
School is correct.
We generally do not permit a party to raise a theory for the first time
on appeal from a summary judgment, because to do so would be unfair to the
2 As relevant to the O’Briens’ argument, the statute provides: “The
validity of a liquidated damages provision shall be determined under
subdivision (d) . . . where the liquidated damages are sought to be recovered
from . . . [a] party to a contract for the retail purchase, or rental, by such
party of personal property or services, primarily for the party’s personal,
family, or household purposes.” (Civ. Code, § 1671, subd. (c)(1).) Under
subdivision (d), a “provision in [such] a contract liquidating damages for the
breach of the contract is void except that the parties to such a contract may
agree therein upon an amount which shall be presumed to be the amount of
damage sustained by a breach thereof, when, from the nature of the case, it
would be impracticable or extremely difficult to fix the actual damage.”
10
other party, which had no opportunity to respond to the theory, and to the
superior court, which had no opportunity to consider it. (E.g., Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 698; Saville v.
Sierra College (2005) 133 Cal.App.4th 857, 872–873; American Continental
Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.) Although
the O’Briens asserted in their answer defenses regarding mitigation of
damages and argued in opposition to the summary judgment motion that the
School had a duty to mitigate, nowhere in the answer or in the opposition did
they cite Civil Code section 1671 or assert the Tuition Agreement contained
an unenforceable liquidated damages clause. The O’Briens correctly assert in
their reply brief that we may consider a new theory that presents a pure
question of law on undisputed facts. (Ryan v. Real Estate of the Pacific, Inc.
(2019) 32 Cal.App.5th 637, 644; Dudley v. Department of Transportation
(2001) 90 Cal.App.4th 255, 259.) But as the O’Briens also correctly assert in
their opening and reply briefs, the validity of a liquidated damages clause
involves questions of fact specific to the particular contract at issue. (Rice v.
Schmid (1941) 18 Cal.2d 382, 385; Beasley v. Wells Fargo Bank (1991) 235
Cal.App.3d 1383, 1394.) “[P]ossible theories that were not fully developed or
factually presented to the trial court cannot create a ‘triable issue’ on appeal.”
(American Continental Ins. Co., at p. 1281.) We conclude the O’Briens’
forfeited the argument based on section 1671. (Meridian Financial Services,
Inc., at p. 700.)
The O’Briens alternatively argue the superior court erred by ruling
that under the terms of the Tuition Agreement the School had no obligation
to mitigate damages. They rely on the general common law rule that a party
injured by a breach of contract must take reasonable steps to mitigate its
losses and cannot recover for losses it could have avoided had it done so.
11
(Agam v. Gavra (2015) 236 Cal.App.4th 91, 111; Valle de Oro Bank v.
Gamboa (1994) 26 Cal.App.4th 1686, 1691.) The O’Briens say they could find
no California case holding the duty to mitigate can be waived by contract,
and they contend the School had to attempt mitigation because to do so would
not have required the sacrifice and surrender of important and valuable
rights. We reject this alternative argument.
“A bedrock principle of contract law in California has always been that
competent parties should have ‘ “ ‘the utmost liberty of contract’ ” ’ to arrange
their affairs according to their own judgment so long as they do not
contravene positive law or public policy.” (Series AGI West Linn of Appian
Group Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156, 164; see South-
Western Pub. Co. v. Simons (9th Cir. 1981) 651 F.2d 653, 657 [“Parties are
entitled to contract for anything that is not illegal.”].) In particular, a party
may by contract waive a right, benefit, or advantage unless prohibited from
doing so by statute. (Civ. Code, § 3513; Simmons v. Ghaderi (2008) 44
Cal.4th 570, 585.) The Tuition Agreement explicitly relieved the School of
any obligation “to offset” or “to mitigate” damages caused by the withdrawal
of the O’Briens’ children after the full amount of tuition had become due,
payable, and nonrefundable. That provision is presumptively fair, regular,
and legal. (Civ. Code, §§ 3545, 3548; Wooton v. Coerber (1963) 213
Cal.App.2d 142, 145.) It was the O’Briens’ burden to prove it was not.
(Hamilton v. Abadjian (1947) 30 Cal.2d 49, 53; Fellom v. Adams (1969) 274
Cal.App.2d 855, 863.) As the superior court noted in its order granting the
School’s summary judgment motion: “The problem is that the O’Briens
provided no authority that . . . mitigation cannot be waived.” They have not
solved that problem on appeal.
12
Another problem with the O’Briens’ alternative argument is that “[n]o
case has been called to our attention wherein this rule as to the duty to
minimize the damages has been applied to a situation in which the
defendant’s breach of duty consisted solely of the failure or refusal to pay a
liquidated sum of money when due, and it may perhaps be doubted that the
rule is applicable to such a case.” (Vitagraph, Inc. v. Liberty Theaters Co.
(1925) 197 Cal. 694, 698–699.) Casting further doubt on the applicability of
the rule are decisions of this and other Courts of Appeal that when a parent
enrolls a student in a private school for a specified term, agrees to pay tuition
by a certain date without reduction if the student does not complete the term,
and the student separates from the school after that date, the parent is liable
for payment of the full amount of tuition for the term. (Stewart v. Claudius
(1937) 19 Cal.App.2d 349, 354–355 (Stewart) [school entitled to full amount of
tuition, even though student was dismissed for violating school rule, when
contract required full payment and disallowed refund]; Hoadley v. Allen
(1930) 108 Cal.App. 468, 471–472 (Hoadley) [same]; Hitchcock Military
Academy v. Myers (1926) 76 Cal.App. 473, 476–478 (Hitchcock) [same when
student withdrew].) Each case endorsed the rule that a contract for a course
of instruction for a specified term is “entire,” and a school is entitled to
recover the agreed contract price whether or not a student completes the
term. (Stewart, at p. 355; Hoadley, at p. 472; Hitchcock, at p. 476.)
The O’Briens try to avoid the cases cited in the previous paragraph by
pointing out certain factual differences between those cases and theirs. For
example, they note that in Stewart, supra, 19 Cal.App.2d 349, and Hoadley,
supra, 108 Cal.App. 468, the students were dismissed for violating school
rules, but the O’Briens withdrew their children. As noted above, however,
Hitchcock, supra, 76 Cal.App. 473, applied the rule requiring full payment of
13
tuition when a mother voluntarily withdrew her children from the school.
The O’Briens say the “two prerequisites” of Hitchcock, namely, that the
student withdrew without any fault on the part of the school and that the
resultant vacancy could not reasonably be filled, are not satisfied, because
they “withdrew their children due to the school’s fault in not addressing
[their] valid concerns” and the School could have filled the vacancies. Even if
we assume those are “prerequisites” to application of the rule requiring full
payment of tuition, they do not prevent application here. The first
prerequisite pertains to a withdrawal “ ‘during the term of the
contract’ ”(Hitchcock, at p. 477), not to a withdrawal, like that of the O’Briens’
children, before the term began. The second is satisfied. The Head of School
stated that by the time the O’Briens withdrew their children (i.e., one
business day before the start of the academic year), there was no active
waiting list because students had enrolled in other schools and their families
had assumed tuition obligations to those schools. The distinctions drawn by
the O’Briens thus do not render the rule of Stewart, Hoadley, and Hitchcock
inapplicable. Rather, because the terms of the Tuition Agreement are
substantially the same as the terms of the contracts in those cases, the rule of
those cases requiring full payment of tuition applies to this case. (See Civ.
Code, § 3511 [“Where the reason is the same, the rule should be the same.”].)
The O’Briens also disparage Stewart, supra, 19 Cal.App.2d 349,
Hoadley, supra, 108 Cal.App. 468, and Hitchcock, supra, 76 Cal.App. 473, as
“antiquated,” but they acknowledge the cases have not been overruled or
disapproved. In fact, an appellate court in another state more recently cited
all three cases in support of the following holding: “Under a contract
whereby an educational institution agrees to provide instruction for a
specified period and a parent of a student agrees to pay a definite sum for
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tuition and similar charges in consideration therefor, . . . where the contract
expressly provides that no deduction or refund will be made, the entire
tuition is payable despite the fact that the student withdraws from school. In
these circumstances, the educational institution has no duty to mitigate
damages.” (Princeton Montessori Soc. v. Leff (N.J.App.Div. 1991) 591 A.2d
685, 687, italics added (Princeton Montessori); see Waterfront Montessori,
LLC v. Xu (N.J.App.Div., Apr. 11, 2019, No. A-3388-17T3) 2019 WL 1567807,
at p. *2 [declining to overrule Princeton Montessori]; Barrie School v. Patch
(Md. 2007) 933 A.2d 384, 393 [“Courts around the country have addressed
similar fact patterns and many have held that there is no duty to mitigate
damages under these circumstances.”].) Under that holding, with which we
agree, the School had no obligation to mitigate damages when the O’Briens
withdrew their children after the date full tuition had become due, payable,
and nonrefundable.
In sum, the Tuition Agreement “allocated to [the O’Briens] the risk that
[their children] would not attend. Since the terms of the contract are clear
and unambiguous, we are bound to enforce it as written.” (Princeton
Montessori, supra, 591 A.2d at p. 690; see Bank of the West v. Superior Court
(1992) 2 Cal.4th 1254, 1264 [“If contractual language is clear and explicit, it
governs.”].) We thus reject the O’Briens’ argument the School had an
obligation to mitigate its damages.
B. Order Denying Motions to Compel Further Discovery Responses
We next consider the O’Briens’ challenge to the superior court’s order
denying their motions to compel further discovery responses from the School.
A discovery order may be reviewed on appeal from the judgment (Code Civ.
Proc., § 906; Deck v. Developers Investment Co., Inc. (2023) 89 Cal.App.5th
808, 825), but the judgment will not be reversed based on an erroneous order
15
unless the error “resulted in a miscarriage of justice” (Cal. Const., art. VI,
§ 13; see People v. Landau (2013) 214 Cal.App.4th 1, 24; County of Nevada v.
Kinicki (1980) 106 Cal.App.3d 357, 363). The O’Briens complain the court
erroneously deprived them of discovery into the School’s mitigation of
damages after they withdrew their children before the academic year started.
As we have explained, however, under the express terms of the Tuition
Agreement the School had no obligation to mitigate, and the O’Briens were
liable for the full amount of tuition for the year. The information they sought
therefore would not have supported a defense to the School’s claim and
allowed them to defeat the motion for summary judgment. Since the
O’Briens have “not show[n] how they would have received a more favorable
outcome in this litigation had the trial court allowed them to conduct their
requested discovery,” no miscarriage of justice requires reversal. (Property
Reserve, Inc. v. Superior Court (2016) 6 Cal.App.5th 1007, 1020.)
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III.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
KELETY, J.
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