Morgan v. J-M Manufacturing Co., Inc. CA2/1

Filed 1/27/21 Morgan v. J-M Manufacturing Co., Inc. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
NORRIS MORGAN et al., B297393
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No. BC695605)
v.
J-M MANUFACTURING
COMPANY, INC.,
Defendant and
Appellant.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Maurice A. Leiter, Judge. Affirmed in
part, reversed in part.
Manning Gross & Massenburg, John T. Hugo, Carrie S.
Lin; Greines, Martin, Stein & Richland, Kent L. Richland, David
E. Hackett, and Nadia A. Sarkis for Defendant and Appellant.
Bowman & Brooke and Jennifer T. Persky for Association
of Southern California Defense Counsel as Amicus Curiae on
behalf of Defendant and Appellant.
Simmons Hanly Conroy, Paul C. Cook, Deborah R.
Rosenthal, and William A. Kohlburn for Plaintiff and
Respondent.
____________________________
Norris Morgan was exposed to asbestos at construction
jobsites where he worked in the 1970s and 80s. After he was
diagnosed with mesothelioma in December 2017, Morgan and his
wife, Lori, sued a number of defendants, including J-M
Manufacturing Company (J-MM)—Mr. Morgan for his injuries
and Mrs. Morgan for loss of consortium.1 By the time trial
commenced in October 2018, only J-MM and another defendant,
Familian Corp., remained as defendants. Familian settled with
the Morgans during trial, leaving J-MM as the only remaining
defendant when the case went to the jury.
The jury concluded that Morgan was exposed to asbestos
from products that J-MM sold, and that J-MM was partly (45%)
responsible for Morgan’s mesothelioma. The jury awarded the
Morgans a total of $15,270,501 in compensatory damages. The
jury also concluded that J-MM had acted with malice, oppression,
or fraud, and awarded an additional $15,000,000 as punitive
damages. Based on the jury’s apportionment of fault, the trial
court entered judgment for the Morgans against J-MM for
$22,213,704.39. J-MM filed motions for judgment
1 Mr. Morgan passed away on December 12, 2018. Mrs.
Morgan is Mr. Morgan’s successor-in-interest in this matter.
(Code Civ. Proc., §§ 377.11, 377.30.)
2
notwithstanding the verdict and new trial, which the trial court
denied.
J-MM challenges the trial court’s judgment and rulings on
three grounds. First, J-MM contends that there is no evidence
that Morgan was exposed to pipe supplied by J-MM. As
explained below, we disagree with this contention; the record
contains evidence from which the jury could reasonably have
concluded that Morgan was exposed to asbestos from pipe
supplied by J-MM. Second, J-MM contends that the trial court
erred when it declined J-MM’s request for a jury instruction that
J-MM was not liable for the conduct of another company—the
Johns-Manville Corporation. We also disagree with this
contention; the trial court was not required to give J-MM’s
requested instruction. Finally, J-MM contends that the jury’s
punitive damage award is not supported by substantial evidence.
We agree with this contention, and will reverse the trial court’s
award of punitive damages.
BACKGROUND
One of the businesses of the Johns-Manville Corporation
and its related companies (JMC) was manufacturing and selling
asbestos-cement pipe—sometimes called transite pipe. A
common application of asbestos-cement pipe is to carry water and
sewer between water and sewer providers and their customers.
JMC declared bankruptcy in the early 1980s, and sold its
asbestos-cement pipe business to two companies that began
operations on January 1, 1983: J-M A/C Pipe Corporation (J-M
A/C), which manufactured asbestos-cement pipe, and J-MM,
which sold asbestos-cement pipe that J-M A/C manufactured.
Pursuant to a bankruptcy court order, the JMC assets that J-MM
acquired were “free of . . . all present and future liabilities . . . and
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all claims attributable to periods prior to the transfer which
relate . . . to personal injury or property damage allegedly
attributable to asbestos-fiber . . . .”
The asbestos-cement pipe that J-MM sold after January 1,
1983 was similar to the pipe that JMC sold. According to J-MM,
“J-M A/C pipe [that J-MM sold] and [JMC] pipe looked alike.
Both were colloquially referred to as ‘Transite’ and had the same
stencil label: ‘J-M Transite.’ ”
Morgan began working in the construction industry in
1972, including as a construction superintendent from 1979 to
1985 for Spriggs and Company (Spriggs) and moved in 1985 to
Bumbarger and Associates. Morgan oversaw day-to-day
construction activity on jobsites that included retail, industrial,
and office buildings.
Among other construction activities, Morgan supervised
plumbers installing asbestos-cement water and sewer pipe on his
worksites. To install the pipe, Morgan testified, plumbers “would
either use a gas or electric saw” to cut the pipe, which “created
dust.” According to Morgan, each cut took “[a] couple minutes.”
The plumbers would also bevel the ends of the pipe to make them
easier to connect—another process that created dust to which
Morgan was exposed. At two to three projects per year from 1979
through 1985, Morgan estimated that he observed 20 to 50 cuts of
asbestos-concrete pipe at each project, and then each pipe was
beveled on both ends.
Morgan recalled that when he first began working for
Spriggs, most of the asbestos-cement pipe came from a company
called CertainTeed, “[t]hen later for whatever reasons they—
most of my subcontractors went to using J-M Transite pipe.”
Morgan recalled that he knew the pipe was “J-M Transite”
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because of the stencil on the side of the pipe and, he testified,
from invoices.
The Morgans filed their complaint in the trial court on
February 23, 2018. In it, they alleged seven causes of action
covering Mr. Morgan’s personal injuries and one cause of action
alleging Mrs. Morgan’s loss of consortium against more than 20
defendants who had all allegedly supplied asbestos or
manufactured or supplied products containing asbestos. By the
time the case was tried in October 2018, all defendants other
than J-MM and Familian Corp. had either been dismissed or
settled.
The matter was tried to a jury in October and November
2018. After the parties rested and before closing argument, the
Morgans and Familian announced that they had settled. After
the case was submitted to the jury, J-MM filed a motion for a
directed verdict arguing, among other things, that plaintiffs had
not introduced substantial evidence that Morgan had ever been
exposed to asbestos supplied by J-MM or that J-MM had acted
with fraud, malice, or oppression, which would be required to
support a punitive damage award. The trial court denied the
motion.
The jury returned a verdict in favor of the Morgans against
J-MM on November 13, 2018. Among other findings on a special
verdict form, the jury concluded that Mr. Morgan had been
“exposed to respirable asbestos from products supplied,
distributed, or sold by [J-MM],” that Mr. Morgan had suffered a
total of $14,270,501 in compensatory damages and that Mrs.
Morgan’s loss of consortium damages were $1,000,000, that the
fault of Mr. Morgan’s injuries were 45 percent attributable to
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J-MM, and that J-MM “acted with malice, oppression, or fraud in
connection with the conduct which caused [Mr. Morgan’s]
mesothelioma.”
The jury returned on November 15, 2018 for a trial
regarding the amount of punitive damages, and based on the
evidence it heard awarded Mr. Morgan $15,000,000 in punitive
damages.
The trial court reduced the jury’s compensatory damage
awards based on the jury’s allocation of fault and settlement
credits to $7,213,704.39. Together with the jury’s punitive
damage award, the trial court entered judgment for the Morgans
against J-MM for $22,213,704.39.
J-MM moved the trial court for judgment notwithstanding
the verdict and for a new trial on February 14, 2019. The trial
court denied both motions in an order it issued on April 3, 2019.
J-MM filed timely notices of appeal from the judgment and
the trial court’s order denying the motion for judgment
notwithstanding the verdict. (Code Civ. Proc., §§ 904.1, subds.
(a)(1), (4), 659; Cal. Rules of Court, rules 8.104(a), 8.108(b).)
DISCUSSION
J-MM challenges the judgment on three grounds. First,
J-MM contends that Morgan presented no evidence that he was
exposed to products supplied by J-MM. On that basis, J-MM
contends that its actions could not have caused Morgan’s
mesothelioma, and the judgment should be reversed in its
entirety. Second, J-MM points out that it requested the trial
court to instruct the jury that J-MM could not be liable for JMC’s
torts because of the bankruptcy court order referenced in the first
paragraph of the background section above; the trial court denied
J-MM’s request. J-MM argues that Morgan convinced the jury
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that J-MM was merely a continuation of JMC, and the requested
jury instruction would have prevented any confusion. Finally,
J-MM contends that Morgan failed to produce evidence in
support of punitive damages sufficient to meet Morgan’s burden
under Civil Code section 3294, subdivision (b). We address each
of J-MM’s arguments in turn.
A. Morgan’s Exposure to J-MM Asbestos-Cement Pipe
Our Supreme Court examined causation in asbestos cases
in depth in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th
953. “[U]ncertainty frequently exists,” the Supreme Court said,
“whether the plaintiff was even exposed to dangerous fibers from
a product produced, distributed or installed by a particular
defendant.” (Id. at p. 975.) Nevertheless, “plaintiffs [bear] the
burden of proof on the issue of exposure to the defendant’s
product.” (Ibid.) “If there has been no exposure, there is no
causation.” (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98
Cal.App.4th 1098, 1103.)
J-MM contends that Morgan has not met that burden
here—that there was not substantial evidence adduced at trial
that Morgan had ever come into contact with any J-MM product
as opposed to a JMC product. J-MM contends the trial evidence
is “equally balanced” that Morgan was exposed to J-MM asbestos-
cement pipe as to JMC asbestos-cement pipe. J-MM argues that
the trial evidence demonstrates that J-MM only ever sold 13-foot
lengths of asbestos-cement pipe, but that Morgan’s undisputed
testimony was that he had only ever seen 10-foot lengths of “J-M
Transite” asbestos-cement pipe. JMC had manufactured 10-foot
lengths of “J-M Transite” pipe, the argument goes; so either the
uncontested evidence demonstrates that the “J-M Transite” pipe
Morgan testified about was JMC pipe, or the evidence can only be
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interpreted as equally balanced—that the pipe could have been
either J-MM pipe or JMC pipe. Under either of those scenarios,
J-MM argues, the jury would have no way to know whether
Morgan was exposed to J-MM asbestos-cement pipe.
On appeal from an order denying a motion for judgment
notwithstanding the verdict, our standard of review—as was the
trial court’s standard on the motion—is “whether any substantial
evidence—contradicted or uncontradicted—supports the jury’s
conclusion.” (Sweatman v. Department of Veterans Affairs (2001)
25 Cal.4th 62, 68.) We may not reweigh evidence or consider
witnesses’ credibility. (In re Coordinated Latex Glove Litigation
(2002) 99 Cal.App.4th 594, 606.) Rather, we view the evidence in
the light most favorable to the jury’s verdict, we disregard
conflicting evidence, and we draw all legitimate inferences in
favor of the verdict. (Webb v. Special Electric Co., Inc. (2016) 63
Cal.4th 167, 192.)
J-MM’s argument here rests on its assertion that “[b]oth
[JMC] and J-MM sold asbestos cement pipe marked ‘J-M
Transite.’ ” “[T]he evidence was undisputed that J-M A/C did not
manufacture ten-foot pipe,” J-MM says, and therefore the pipe
Morgan encountered at his jobsites could not have been J-MM
pipe.
J-MM based its argument here on inconsistencies between
two witnesses’ testimony and the parties’ assertions that
asbestos-cement pipe manufactured by both JMC and J-MM
shared the “J-M Transite” stencil marking. J-MM argues that
Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868 (Garcia)
demonstrates why a jury could not have made a determination
about who was responsible for the “J-M Transite” pipe Morgan
saw at his worksites.
8
In Garcia, a college student was injured by a fencing
opponent using a sabre with a tip, according to one witness,
“much thinner than a proper fencing regulation tip.” (84
Cal.App.3d at p. 872.) The student who was using the offending
sabre and his college had both purchased blades from the same
two companies. (Ibid.) After the injury, the blade was replaced
in the team bag and was mixed up with other blades—from both
companies. (Ibid.) No witness could identify which company
manufactured the blade, and no witness disputed that blades
from both companies were present. (Ibid.) There was no
evidence in the case from which a jury might have distinguished
whose sabre caused the plaintiff’s injury. (Id. at p. 874.)
JMC ceased operations in December 1982 and J-MM began
operating on January 1, 1983. This case is distinguishable from
Garcia. No testimony places both JMC “J-M Transite” pipe and
J-MM “J-M Transite” pipe at any of Morgan’s worksites at the
same time for any but a very narrow window of time. To the
contrary, for all of 1983, 1984, 1985, 1986, and whatever time in
1987 Morgan continued to work at Bumbarger, he testified that
he continued to be exposed to “J-M Transite” pipe. During all of
that time, the evidence establishes that there was only one
supplier of “J-M Transite” pipe—J-MM.
J-MM’s arguments about the length of the pipe conclusively
establishing that it could not have been J-MM pipe is unavailing.
J-MM’s argument suggests, at best, that Morgan’s memory was
not flawless regarding the length of pipe he encountered in the
mid-1980s and testified about in 2018.
Witnesses are not required to have perfect memories.
J-MM’s argument concerns Morgan’s credibility and the weight
the jury might have given his testimony, not its sufficiency as
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evidence. (See Izell v. Union Carbide Corp. (2014) 231
Cal.App.4th 962, 974.) It is “the province of the jury to resolve
the conflicts in the evidence and to pass upon the weight to be
given the evidence. [Citations.] It is well settled that the trier of
fact may accept part of the testimony of a witness and reject
another part even though the latter contradicts the part
accepted.” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67;
see Moran v. Foster Wheeler Energy Corp. (2016) 246 Cal.App.4th
500, 518.) The jury could have reasonably concluded that
Morgan did not recall the length of the pipe he saw, regardless of
how confident he was about his memory. And at the same time,
the jury could have reasonably concluded that he recalled seeing
“J-M Transite” asbestos-cement pipe on jobsites as late as 1985,
1986, and 1987.
Morgan’s testimony is evidence sufficient to support the
jury’s conclusion that he was exposed to asbestos in products sold
or supplied by J-MM.
B. J-MM’s Requested Johns-Manville Jury Instruction
J-MM’s argument suggests, at best, that Morgan’s memory
was not flawless regarding the length of pipe he encountered in
the mid-1980s and testified about in 2018. JMC filed a petition
for reorganization under the Bankruptcy Code in 1982. (Green v.
Travelers Indemnity Co. (1986) 185 Cal.App.3d 544, 548.) In
December 1982, the bankruptcy court approved the sale of JMC’s
asbestos-pipe cement business to J-MM and J-M A/C. According
to the bankruptcy court’s order, the J-MM’s acquisition of JMC’s
assets was to be “free of . . . all present and future liabilities . . .
and all claims attributable to periods prior to the transfer which
relate . . . to personal injury or property damage allegedly
attributable to asbestos-fiber . . . .”
10
At trial, J-MM requested the following special jury
instruction:
“In this case, the following is true:
“Johns-Manville and J-M Manufacturing Company, Inc. are
not the same entity.
“In late 1982, J-M Manufacturing Company, Inc. purchased
certain portions of the pipe operations of Johns-Manville and
began to do business on January 1, 1983.
“J-M Manufacturing Company, Inc. is not liable to
Plaintiffs for any exposure to asbestos as a result of work
performed with or around Johns-Manville products before
January 1, 1983.
“No other proof is needed and you must accept these facts I
have read to you as true in this trial.”
The trial court did not give the requested instruction.
“A party is entitled upon request to correct,
nonargumentative instructions on every theory of the case
advanced by him which is supported by substantial evidence.
The trial court may not force the litigant to rely on abstract
generalities, but must instruct in specific terms that relate the
party’s theory to the particular case.” (Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 572 (Soule).) “The giving of an
instruction argumentative in form,” however, “is error.” (Slayton
v. Wright (1969) 271 Cal.App.2d 219, 238.) “An instruction that
goes too elaborately into the particular facts relied on by one of
the parties is an argumentative instruction. An instruction
should state rules of law generally, rather than elaborate matters
of evidence. [Citation.] Any attempt to stress, overemphasize, or
unduly make prominent selected portions of the evidence is in
violation of the rule that instructions should not focus the jury’s
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attention on particular items of evidence; ‘[T]he vice in any such
instruction is that it unduly emphasizes one portion of the
evidence, puts the court in the position of making an argument to
the jury, and misleads the jury into thinking that because the
court has specifically mentioned certain testimonial facts they
are of undue importance or that the court believed them to be
true.’ ” (Ibid., italics added.)
J-MM argues that the proposed instruction was “a neutral
recitation regarding the binding impact of a court order on the
scope of J-MM’s liability.” But the trial court pointed out in its
order denying J-MM’s post-trial motions that “J-MM did not ask
the Court to instruct on the elements of successor liability.” The
trial court viewed the instruction as an “invit[ation] . . . to bolster
[J-MM’s] closing argument by underscoring certain undisputed
facts.” Indeed, as the trial court pointed out in its post-trial
ruling, J-MM argued at the parties’ jury instruction conference
that “these are not facts in dispute in any way, shape or form.”
The trial court responded that “if it is undisputed, then you can
argue it. But in the absence of a stipulation, I’m not going to
instruct the jury as to particular facts.”
We agree with the trial court’s analysis. The trial court
reasoned that Morgan never raised or argued successor liability,
that J-MM did not request an instruction on the elements of
successor liability, and that J-MM remained free at all times to
draw the distinction for the jury between J-MM and JMC.
Refusing to give J-MM’s requested special instruction was not
error.
Moreover, the special verdict form and the jury’s allocation
of fault reflect that the jury understood the difference between
the two companies and allocated fault accordingly. The questions
12
regarding J-MM’s liability all specifically referred to “J-M
Manufacturing Company, Inc.,” and never to JMC. And when the
jury was asked to allocate fault, it allocated fault to both “Johns
Manville”—one percent—and to “J-M Manufacturing Company,
Inc.”—45 percent. The jury also allocated fault among Morgan—
12 percent—and 16 other entities and individuals, including both
of the companies for whom Morgan testified he worked when he
was exposed to asbestos contained in products that J-MM sold or
supplied.
The jury’s allocation of fault between J-MM and JMC is
consistent with Morgan’s testimony regarding his exposure to
“J-M Transite” pipe. He testified that early in his time at Spriggs
and Company, he was exposed more to asbestos-cement pipe from
CertainTeed. Later in his time at Spriggs and Company, “most of
[Morgan’s] subcontractors went to using J-M Transite pipe.”
From 1979 to 1985, Morgan testified, he “saw mostly CertainTeed
and somewhere in the late ‘70s, don’t know why, they got J-dash-
M Transite pipe became the pipe of choice, and [he] saw it show
up on [his] job sites more and more.” At Bumbarger—from 1985
until 1987—Morgan recalled only J-M Transite pipe.
“A refusal to instruct the jury is reversible error if it is
probable that the error prejudicially affected the verdict.”
(Douglas v. Fidelity National Ins. Co. (2014) 229 Cal.App.4th 392,
408; accord Soule, supra, 8 Cal.4th at p. 580.) Based on the jury’s
specific allocation of fault and its linear correlation with Morgan’s
testimony regarding the timing and extent of his exposure to J-M
Transite pipe, we would find no prejudice even if the trial court
had erroneously refused J-MM’s special instruction.
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C. Exemplary Damages
J-MM contends that the evidence before the jury was
insufficient to support the jury’s punitive damage award.
“In an action for breach of an obligation not arising from
contract, where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice, the
plaintiff, in addition to the actual damages, may recover damages
for the sake of example and by way of punishing the defendant.
[¶] . . . An employer shall not be liable for damages pursuant to
subdivision (a), based upon acts of an employee of the employer,
unless the employer had advance knowledge of the unfitness of
the employee and employed him or her with a conscious disregard
of the rights or safety of others or authorized or ratified the
wrongful conduct for which the damages are awarded or was
personally guilty of oppression, fraud, or malice. With respect to
a corporate employer, the advance knowledge and conscious
disregard, authorization, ratification or act of oppression, fraud,
or malice must be on the part of an officer, director, or managing
agent of the corporation.” (Civ. Code, § 3294, subds. (a), (b).)
Our review is for sufficiency of the evidence to support the
jury’s decision to award punitive damages. (Colucci v. T-Mobile
USA, Inc. (2020) 48 Cal.App.5th 442, 451.) “[W]hen presented
with a challenge to the sufficiency of the evidence associated with
a finding requiring clear and convincing evidence, [we] must
determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by this
standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1005.) The clear and convincing evidence standard of proof
14
“ ‘requires a finding of high probability’ ” that the fact is true.
(Id. at p. 998.)
The primary focus of J-MM’s argument is that there is no
evidence in the record that a J-MM officer, director, or managing
agent authorized or ratified any conduct. J-MM contends that at
trial, Morgan “treated J-MM as a monolithic entity” and referred
to the company—in its entirety—as “they,” without ever
identifying who “they” referred to. “[O]f the few J-MM employees
whose conduct was specifically identified at trial,” J-MM argues,
“none even qualified as officers, directors or managing agents of
J-MM during the relevant time period.”
Morgan does not argue that there is evidence identifying
any act of any particular J-MM officer, director, or managing
agent. Morgan’s argument is that “the entire organization was
involved in the acts giving rise to malice,” and therefore it need
not introduce clear and convincing evidence that any particular
officer, director, or managing agent had the requisite state of
mind. Morgan’s argument relies on and quotes from Romo v.
Ford Motor Co. (2002) 99 Cal.App.4th 1115 (Romo), vacated on
other grounds by Ford Motor Co. v. Romo (2003) 538 U.S. 1028.
In Romo, the court found sufficient evidence to support the
jury’s punitive damage award. The court could identify no case
“in which a series of corporate actions and decisions, such as the
design, production, and marketing of an automobile, has been
found inadequate to support an award of punitive damages on
the basis that the multitude of employees involved in various
aspects of the process were not high enough in the corporate
chain of command. When the entire organization is involved in
the acts that constitute malice, there is no danger a blameless
corporation will be punished for bad acts over which it had no
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control, the primary goal of the ‘managing agent’ requirement.
[Citation.] [¶] There is no requirement that the evidence
establish that a particular committee or officer of the corporation
acted on a particular date with ‘malice.’ A corporate defendant
cannot shield itself from liability through layers of management
committees and the sheer size of the management structure. It is
enough if the evidence permits a clear and convincing inference
that within the corporate hierarchy authorized persons acted
despicably in ‘willful and conscious disregard of the rights or
safety of others.’ ” (Romo, supra, 99 Cal.App.4th at pp. 1140-
1141.)
But Morgan only relies on part of the Romo decision. The
Romo court went on to explain that a plaintiff can satisfy the
“managing agent” requirement “through evidence showing the
information in possession of the corporation and the structure of
management decisionmaking that permits an inference that the
information in fact moved upward to a point where corporate
policy was formulated. These inferences cannot be based merely
on speculation, but they may be established by circumstantial
evidence, in accordance with ordinary standards of proof.”
(Romo, supra, 99 Cal.App.4th at p. 1141, italics added.) The
court explained that “[i]t is difficult to imagine how corporate
malice could be showing in the case of a large corporation except
by piecing together knowledge and acts of the corporation’s
multitude of managing agents.” (Ibid.)
It may be that J-MM’s officers, directors, and managing
agents acted with the requisite state of mind to support an award
of punitive damages in an appropriate case. A plaintiff may be
able to provide evidence at trial to “piec[e] together knowledge
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and acts of [J-MM’s] multitude of managing agents.” But that
did not happen here.
That the defendant is a large company does not relax a
plaintiff’s burden of proof to the point Morgan argues here. We
have reviewed the record for evidence from which the jury could
have concluded that an officer, director, or managing agent—
someone responsible for J-MM’s corporate policy—had the
requisite state of mind to support a punitive damage award. We
found none.
DISPOSITION
The judgment is reversed with respect to the jury’s punitive
damage award. On remand, the trial court will vacate its
judgment and enter judgment consistent with this opinion. The
trial court’s judgment is affirmed in all other respects. The
parties will bear their own costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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