Filed 12/18/14 Prof. Collection Consultants v. Lauron CA6
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


PROFESSIONAL COLLECTION                                             H039718
CONSULTANTS,                                                        (Santa Clara County
                                                                    Super. Ct. No. 111CV213127)
         Plaintiff, Cross-Defendant and
         Appellant,

                  v.

KRYSTAL LAURON,

     Defendant, Cross-Complainant and
Respondent;

TODD ALLEN SHIELDS et al.,

       Cross-defendants and Appellants.


         Professional Collection Consultants (PCC) brought a lawsuit in November 2011
against Krystal Lauron to collect a $10,000 debt allegedly owing. Todd Shields, PCC’s
vice president, verified the complaint. The debt had been assigned from a lending
institution to Wireless Receivables Acquisition Group (WRAG), which, in turn, assigned
it to PCC. Over a year after her initial appearance in the suit, Lauron filed a First
Amended Cross-Complaint (Cross-Complaint) against PCC, WRAG, Shields, and
Clark Garen, an attorney. (Hereafter, PCC, WRAG, Shields, and Garen are collectively
referred to as appellants.) She alleged that appellants, by suing her, had violated federal
and state debt collection laws. Appellants filed both a demurrer to and a motion to strike
the Cross-Complaint. On May 21, 2013, the court overruled the demurrer and denied the
motion to strike. Appellants filed a notice of appeal.
       Appellants argue the demurrer should have been sustained without leave to amend,
based upon Lauron’s noncompliance with section 1714.10 of the Civil Code.1 Under that
statute, a plaintiff (or cross-complainant), under certain circumstances where he or she
brings suit against an attorney for civil conspiracy with the attorney’s client, must first
petition the court for an order allowing the pleading based upon a finding that the
plaintiff “has established that there is a reasonable probability that the party will prevail
in the action.” (§ 1714.10, subd. (a); § 1714.10(a).) Appellants contend that because
Garen is the attorney for PCC who brought the action, Lauron’s Cross-Complaint is
barred because of her failure to petition for and obtain a presuit filing order under section
1714.10(a).
       We conclude appellants’ challenge to the order overruling the demurrer and
denying the motion to strike is not cognizable because it is a challenge to a nonappealable
order. Because we have no jurisdiction to consider this matter and because we decline
appellants’ request to deem their appeal to be a petition for writ of mandate, we will
dismiss the appeal.
                              PROCEDURAL BACKGROUND
       I.       Complaint
       On November 14, 2011, PCC filed suit against Lauron. In the caption of the
complaint, it was noted that the attorneys for PCC were Garen and Robert F. Henry, both
at the “Law Offices of Clark Garen (Salaried Employees of PCC).” (Capitalization
omitted.) PCC alleged as a limited civil case one cause of action for common count
(open book account). PCC alleged that its complaint was based upon an obligation of


       1
           All further statutory references are to the Civil Code unless otherwise specified.
                                               2
$10,000 in which Chase Bank USA, N.A. (Chase) was the original creditor and that the
claim was later assigned by WRAG to PCC.
       II.    Cross-Complaint
       On December 15, 2011, Lauron filed the initial cross-complaint against PCC,
alleging two causes of action. On January 28, 2013, Lauron filed the (First Amended)
Cross-Complaint against PCC, Shields, WRAG, and Garen.
       Lauron asserted two causes of action in the Cross-Complaint, namely, (1) damages
for violations of the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
(FDCPA), and (2) damages for violations of the Rosenthal Fair Debt Collection Practices
Act, sections 1788 to 1788.33 (RDCPA). She alleged2 that she was a “debtor” and each
of the appellants was a “debt collector” within the meaning of both the FDCPA and the
RDCPA. Garen was at all times a licensed California attorney; “the sole owner and
manager of [WRAG]”; and a salaried employee of PCC. Garen, in his capacity as
WRAG’s manager and owner, personally selected Lauron’s account for its purchase by
WRAG, intending to file the complaint herein to collect on the debt.
       Lauron’s obligation with Chase that was the basis for PCC’s complaint was
assigned to WRAG on July 27, 2010, and it was later “placed, consigned or otherwise
transferred to Cross-Defendant, PCC, for the purpose of collection only.” Garen and
WRAG continued to have a beneficial interest in the obligation. The Chase debt was
governed by a written “Cardmember Agreement” which provided that the account would
“be governed and interpreted in accordance with federal law and, to the extent state law
applie[d], the law of Delaware, without regard to conflict-of-law principles.”
(Capitalization omitted.)


       2
        The statements made in this paragraph and the succeeding two paragraphs are
based upon the allegations made by Lauron in her Cross-Complaint. For simplicity and
to avoid repetition, we have generally omitted the phrase “Lauron alleges in her Cross-
Complaint” in describing those allegations.
                                             3
       Lauron alleged in the Cross-Complaint that appellants filed the complaint “in an
attempt to collect on the alleged debt.” In filing the collection suit, appellants violated
the FDCPA and RDCPA because (among other reasons) they were knowingly attempting
to collect a debt barred by the applicable statute of limitations.
       III.    Demurrer and Motion to Strike
       On February 21, 2013, appellants filed a demurrer to the Cross-Complaint and a
concurrent motion to strike specified allegations of that pleading. Lauron opposed the
demurrer and motion to strike. In an order filed May 21, 2013, the court overruled the
demurrer and denied the motion to strike.
       On May 30, 2013, appellants filed a notice of appeal from the order, specifically
noting that an appeal was authorized under section 1714.10, subdivision (d).
                                       DISCUSSION
       I.      Whether Appeal Should Be Dismissed
               A.    Lauron’s Motion to Dismiss the Appeal
       On October 18, 2013, Lauron filed a motion to dismiss the appeal. Appellants
filed written opposition to that motion. We ordered that the motion to dismiss be
considered together with the underlying appeal.
       Lauron argues in her motion to dismiss that the appeal is improper because an
order overruling a demurrer is not appealable. She argues further that section 1714.10,
subdivision (d) does not authorize the appeal here because the Cross-Complaint did not
allege a claim for civil conspiracy involving an attorney and his or her client. Lauron
also contends that appellants are seeking review of legal issues raised in their demurrer,
such as questions concerning the applicability of statute of limitations and tolling
principles. She asserts that appellants have not raised circumstances that would justify
our treatment of this “purported appeal from a nonappealable order as a petition for writ
of mandate.”


                                              4
        Appellants respond that the order is appealable under section 1714.10,
subdivision (d). They argue that the issue concerning section 1714.10 “was clearly
raised before the Trial Court.” (Original italics.) And they assert that they made it clear
to the court below that they believed the court’s order would be appealable. They claim
that the appeal lies because “the [L]egislature created a very broad right to appeal any
final adjudication of rights under California Civil Code Section 1714.10.” (Original
italics.)
              B.     Section 1714.10 Argument Was Not Properly Before the Court
                     1.      Section 1714.10
        Section 1714.10(a) provides in relevant part: “No cause of action against an
attorney for a civil conspiracy with his or her client arising from any attempt to contest or
compromise a claim or dispute, and which is based upon the attorney’s representation of
the client, shall be included in a complaint or other pleading unless the court enters an
order allowing the pleading that includes the claim for civil conspiracy to be filed after
the court determines that the party seeking to file the pleading has established that there is
a reasonable probability that the party will prevail in the action.” Such a prefiling order
must be based upon a verified petition that includes the proposed pleading. The petition
must also include affidavits showing a factual basis for the claim, and the court is
required to have the petition and supporting papers served upon the adverse party to
permit opposition. (See Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 394-395
[statute “aimed at situations where the attorney is acting in his or her official capacity [as]
. . . indicated by the statute’s legislative history and the Legislature’s concern with
conspiracy actions designed to ‘disrupt’ the attorney/client relationship”]; Evans v.
Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599, 604 [§ 1714.10 “was intended to
weed out the harassing claim of conspiracy that is so lacking in reasonable foundation as
to verge on the frivolous”].) The petition requirement of subdivision (a) does not apply
where the attorney-client civil conspiracy is one “where (1) the attorney has an
                                               5
independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the
performance of a professional duty to serve the client and involve a conspiracy to violate
a legal duty in furtherance of the attorney’s financial gain.” (§ 1714.10, subd. (c).)
       A party’s noncompliance with the requirements under subdivision (a) to petition
the court for a prefiling order is a defense to the claim. (§ 1714.10, subd. (b).) But the
failure of the party-attorney to assert the defense in a timely manner “upon that attorney’s
first appearance by demurrer, motion to strike, or such other motion or application as may
be appropriate” results in a waiver of that defense. (Ibid.; see Villa Pacific Building Co.
v. Superior Court (1991) 233 Cal.App.3d 8, 12 [requirements of prefiling order under
§ 1714.10 not jurisdictional; attorney must assert defense “at the first available
opportunity” or it is waived].) Subdivision (d) of the statute allows for an immediate
appeal of an adverse ruling under section 1714.10: “Any order made under
subdivision (a), (b), or (c) which determines the rights of a petitioner or an attorney
against whom a pleading has been or is proposed to be filed, shall be appealable as a final
judgment in a civil action.” (See Berg & Berg Enterprises, LLC v. Sherwood Partners,
Inc. (2005) 131 Cal.App.4th 802, 818-819.)
                     2.     Appellants’ Demurrer and Motion to Strike
       In their demurrer and motion to strike filed February 21, 2013, appellants filed
five documents consisting of 159 pages: (1) notice of hearing on demurrer; (2) notice of
hearing on motion to strike; (3) memorandum of points and authorities in support of
demurrer and motion to strike; (4) request for judicial notice; and (5) copies of out-of-
state authorities in support of demurrer and motion to strike. Although the notice of
hearing on demurrer identified seven specific grounds, it contained no reference to
section 1714.10. Similarly, there was no mention of section 1714.10 in the notice of
hearing on the motion to strike, notwithstanding the listing of 64 separately itemized
motions to strike in that 30-page notice. Further, there is no mention of section 1714.10
or its requirements in appellants’ 14-page memorandum of points and authorities. And
                                              6
neither appellants’ request for judicial notice nor their pleading attaching out-of-state
authorities concerned section 1714.10.
       On March 5, 2013, appellants filed a first amended notice of hearing on demurrer
(amended demurrer notice). In it, they repeated the seven grounds contained in the
original notice, and added as a new first ground: “This is a complaint against an attorney
and his client for civil conspiracy that was filed in violation of California Civil Code
Section 1714.10. Therefore, all parties have a complete defense established by the
statute.” No further explanation concerning this additional ground was provided, and
appellants did not amend or supplement their points and authorities to address section
1714.10.
       Lauron filed opposition to the demurrer and motion to strike on March 12, 2014.
In it, she addressed the arguments raised in appellants’ points and authorities, but did not
respond to the brief reference concerning section 1714.10 contained in appellants’
amended demurrer notice. Appellants then argued in their reply memorandum that
Lauron “completely failed to address this issue [application of section 1714.10], thereby
conceding it.”
       At the hearing on the demurrer and motion to strike, appellants’ counsel and cross-
defendant, Garen, argued that section 1714.10 applied to the Cross-Complaint. He
argued that the reference to the statute in appellants’ amended demurrer notice was
“sufficient to make the defense,” and “ask[ed] the Court to reconsider that.”3
       In its five-page formal order, after reciting and addressing the various arguments
made by appellants in support of their demurrer, the court noted that appellants had raised
for the first time in their reply memorandum “a new argument regarding the litigation
privilege.” (See § 47, subd. (b).) The court held the argument was “not properly before


       3
        There are references in the reporter’s transcript to a tentative ruling by the court
that was being challenged by appellants. The tentative ruling is not part of the record.

                                              7
the court.” The court then addressed appellants’ assertion of a claimed defense under
section 1714.10: “Cross-Defendants also argue in reply that Lauron did not address the
issue of” Civil Code section 1714.10, which prohibits a cause of action against an
attorney for civil conspiracy with his or her client unless permitted by the court. Cross-
Defendants filed an amended notice of hearing on demurrer on March 5, 2013, which
added a reference to this statute as another basis for demurrer. Cross-Defendants’
memorandum of points and authorities, which was filed prior to March 5, 2013,
contained no reference to this statute whatsoever. ‘[A] point which is merely suggested
by a party’s counsel, with no supporting argument or authority, is deemed to be without
foundation and requires no discussion.’ [Citations.]” The court held further that “Lauron
has not asserted a cause of action based on an articulated theory of civil conspiracy
between an attorney and client, so it is not clear how the statute applies to the instant
action.” As discussed below, we will conclude the trial court did not rule on the merits of
the section 1714.10 argument that was belatedly raised by appellants in their reply
memorandum.
                     3.      Discussion: Defense Was Not Properly Before the Court
       A memorandum of points and authorities in support of a civil motion “must
contain a statement of facts, a concise statement of the law, evidence and arguments
relied on, and a discussion of the statutes, cases, and textbooks cited in support of the
position advanced.” (Cal. Rules of Court, rule 3.1113(b).)4 The rules concerning civil
law and motion are generally applicable to demurrers. (Rule 3.1103(c).) The
requirements of rule 3.1113(b) that the memorandum in support of the motion contain “a
concise statement of the law, evidence and arguments relied on,” as well as citation of
statutes and case authorities supporting the motion, are in recognition of the fact that “the


       4
        All further rule references are to the California Rules of Court unless otherwise
specified.

                                              8
moving party must carry the initial burden of informing its opponent and the court of the
specific basis for its motion. [Citation.]” (People v. Williams (1999) 20 Cal.4th 119, 129
(Williams).) Thus, for instance, where the defendants’ motions for new trial and for
judgment notwithstanding the verdict consisted of mere recitations of the general
standards for granting the motions without a specification of the evidence and arguments
upon which the motions were based, the trial court was justified in invoking the
defendants’ noncompliance with rule 3.1113 in declining to consider the matter.
(Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927,
932-933 (Quantum Cooking); see also Black v. Financial Freedom Senior Funding Corp.
(2001) 92 Cal.App.4th 917, 925, fn. 9 [appellate court declines to consider respondents’
contentions that there was no factual basis for claims when respondents failed in their
motion for summary judgment to present argument “to any material extent at all”].)
       As explained recently by the Fourth District Court of Appeal: “The general rule of
motion practice . . . is that new evidence is not permitted with reply papers. This
principle is most prominent in the context of summary judgment motions, which is not
surprising, given that it is a common evidentiary motion. ‘[T]he inclusion of additional
evidentiary matter with the reply should only be allowed in the exceptional case . . .’ and
if permitted, the other party should be given the opportunity to respond. [Citations.]”
(Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538; see also San Diego
Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 (San Diego
Watercrafts) [movant’s inclusion of new facts in reply papers in support of summary
judgment was improper; based upon due process considerations, opponent must have
opportunity to respond to evidence].) Furthermore, a well-regarded practice guide
cautions that “[i]t is a mistake to leave key arguments for the reply brief on the theory it
will give you the ‘last word’ with the court. The court may refuse to consider new
evidence or arguments first raised in reply papers, or it may grant the other side time for
further briefing. [Citations.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure
                                              9
Before Trial (The Rutter Group 2014) ¶ 9:106.1, p. 9(l)-88, original italics; see also id.,
¶ 7:122.9, p. 7(l)-49 [“court may disregard arguments or grounds for demurrer first raised
in a reply brief”].)
       A similar principle bars an appellant’s raising of issues for the first time in a reply
brief. (See, e.g., In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214 [appellate
court, absent good cause, need not consider argument first raised in reply brief]; Paulus v.
Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [appellant’s assertion of new
claims of error in reply brief, after respondents’ brief noted omission of arguments, was
defective and arguments deemed forfeited].) “Obvious reasons of fairness militate
against consideration of an issue raised initially in the reply brief of an appellant.”
(Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)
       The trial court here noted that appellants’ memorandum in support of the demurrer
contained no reference to the contention that Lauron’s Cross-Complaint was barred under
section 1714.10. The court acknowledged that after appellants filed their demurrer and
motion to strike, they filed an amended demurrer notice adding a reference to
section 1714.10 “as another basis for demurrer.” But it found this belated, cursory
reference to the statute to be insufficient to preserve appellants’ argument, observing:
“ ‘[A] point which is merely suggested by a party’s counsel, with no supporting argument
or authority, is deemed to be without foundation and requires no discussion.’
[Citations.]”
       The trial court did not err in holding that appellants had failed to properly tender
the issue of compliance with section 1714.10(a) in connection with their demurrer.
Appellants’ omission of this argument and supporting legal authority in their voluminous
papers filed in support of the demurrer and motion to strike—which, it bears emphasis,
included a demurrer notice specifying seven separate grounds and a separate notice
containing 64 itemized motions to strike—was in violation of rule 3.1113(b). As the
moving parties, appellants had the obligation to assert in their papers that this statute was
                                              10
a basis for their demurrer and present legal argument in support of their position.
(Williams, supra, 20 Cal.4th at p. 129.) Garen, as the attorney claiming to have been
sued for civil conspiracy with a client, was required to assert the defense in a timely
manner “upon that attorney’s first appearance by demurrer, motion to strike, or such
other motion or application as may be appropriate.” (§ 1714.10, subd. (b).) He failed to
do so and, as a result, waived the defense.
       The court also correctly concluded that appellants’ attempt to raise the issue
through a cursory reference to it in the amended demurrer notice was unavailing. In
Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619,
footnote 2, this court held that “ ‘[a] point which is merely suggested by . . . counsel, with
no supporting argument or authority, is deemed to be without foundation and requires no
discussion.’ [Citation.]” (Cf. People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8 [appellate
courts will not consider perfunctory contentions unsupported by argument]; Benach v.
County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [conclusory presentation in
appellate brief without argument or application of pertinent law was inadequate and
unsupported contentions are deemed waived].)
       Moreover, appellants’ belated assertion of the argument in their reply papers was
ineffective to present the position to the court. Since the argument was not made in
appellants’ moving papers, Lauron had no opportunity to respond to it. (See San Diego
Watercrafts, supra, 102 Cal.App.4th at p. 316.) Appellants’ approach of “saving” what
they now deem to be a critical argument in support of their demurrer—whether it was
done intentionally or inadvertently—was ineffectual in tendering the issue to the trial
court. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra,
¶ 7:122.9, p. 7(l)-49; ¶ 9:106.1, p. 9(l)-88.) Thus, the trial court concluded that the
argument was not properly before it. It did not abuse its discretion in making this
determination. (See Quantum Cooking, supra, 197 Cal.App.4th at p. 932 [trial court did
not abuse its discretion in invoking rule 3.1113 to noncomplying post-trial motions].)
                                              11
       Furthermore, we reject appellants’ contention that the trial court considered and
ruled on the merits of appellants’ untimely section 1714.10 claim. It is true that the court,
after concluding that the contention was not properly before it because it was not
addressed in the memorandum of points and authorities in support of the demurrer and
motion to strike, added: “Lauron has not asserted a cause of action based on an
articulated theory of civil conspiracy between an attorney and client, so it is not clear how
the statute applies to the instant action.” But this one-sentence comment does not suggest
the court addressed the merits of a section 1714.10 claim—which claim Lauron did not
have the opportunity to address in her opposing papers. Thus, we conclude that the trial
court did not rule on the merits of appellants’ section 1714.10 claim.
       It is well settled that an order overruling or sustaining a demurrer is not
appealable. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695; In re Troy D.
(1989) 215 Cal.App.3d 889, 896.) Likewise, an order granting or denying a motion to
strike a pleading is not appealable. (Fraser-Yamor Agency, Inc. v. County of Del Norte
(1977) 68 Cal.App.3d 201, 207; Warden v. Brown (1960) 185 Cal.App.2d 626, 629.)
Although an appeal will lie from an order under section 1714.10 “determin[ing] the rights
of a petitioner or an attorney against whom a pleading has been or is proposed to be
filed” (§ 1714.10, subd. (d)), since no contention under section 1714.10 was properly
before the trial court, appellants cannot invoke the statute here to convert an otherwise
nonappealable order into one that is appealable.
              C.     Request to Deem Appeal Petition for Writ of Mandate
       Appellants also assert several arguments addressing legal issues unrelated to their
claim that the Cross-Complaint was subject to demurrer under section 1714.10. They
contend the court erred in overruling their demurrer because the court’s ruling implicitly
credited Lauron’s position that the underlying debt that was the basis for PCC’s
complaint was barred by the statute of limitations. Appellants argue that (1) any choice
of law provision in the cardholder agreement between Chase and Lauron did not apply
                                             12
because PCC’s action was for an open book account, not an action on the underlying
contract; (2) the cardholder agreement provides for the application of the federal statute
of limitations, which is four years, and therefore the complaint is not time-barred; and (3)
even if the three-year statute of limitations under Delaware law applies, the complaint is
not time-barred because the statute was tolled during the period of time Lauron was
absent from Delaware. Finally, they argue that the Cross-Complaint was barred by the
litigation privilege (§ 47, subd. (b)).
       Appellants urge that we consider these arguments—i.e., “expand this appeal
under . . . Section 1714.10 to include a resolution of the issue of which statute of
limitations applies in cases like this”—notwithstanding that they may involve appellate
challenges that ordinarily must wait until the entry of a final judgment below. They
request that we treat their appeal as a petition for writ of mandate to address these
additional issues.5
       We decline appellants’ request. As a reviewing court, we have jurisdiction to hear
an appeal only where it is from an appealable judgment or order. (Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 696.) An appellate court may exercise its
discretion to treat a purported appeal from a nonappealable order as a petition for writ of
mandate, but it “should not exercise that power except under unusual circumstances.”
(Olson v. Cory (1983) 35 Cal.3d 390, 401 (Olson).) “ ‘Routine granting of requests to
treat improper appeals as writs where there are no exigent reasons for doing so would
only encourage parties to burden appellate courts with reviews of intermediate orders.’


       5
         In making this argument, appellants’ counsel, Garen, cites and quotes at length a
2008 unpublished decision of the Second District Court of appeal in clear violation of
rule 8.115(a). We will disregard this improperly cited authority, and counsel is
admonished to refrain in the future from citing to unpublished or depublished cases. (See
Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 886 [sanctions imposed
against appellants’ counsel for filing briefs not incompliance with Rules of Court,
including improper reliance on depublished authority].)

                                             13
[Citation.] ‘Strong policy reasons underpin the one final judgment rule, and the
guidelines for “saving” appeals from nonappealable orders. The interests of clients,
counsel, and the courts are best served by maintaining, to the extent possible, bright-line
rules which distinguish between appealable and nonappealable orders. To treat the
instant appeal as a writ application would obliterate that bright line and encourage parties
to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal
will be “saved by the appellate courts.” We cannot condone or encourage such practice.’
[Citation.]” (San Joaquin County Dept. of Child Support Services v. Winn (2008)
163 Cal.App.4th 296, 301.)
       We do not perceive this case to present “unusual circumstances” (Olson, supra,
35 Cal.3d at p. 401) compelling us to disregard traditional principles of appellate
jurisdiction. Accordingly, we will not deem the purported appeal here from a
nonappealable order as a petition for writ of mandate. (See Jackson v. Wells Fargo Bank
(1997) 54 Cal.App.4th 240, 245 [court declines to treat purported appeal as petition for
writ of mandate because of absence of “ ‘unusual circumstances’ ”].)
                                         DISPOSITION
       The appeal from the order overruling the demurrer to the First Amended Cross-
Complaint and denying the motion to strike specified allegations therein is dismissed.




                                             14
                                    Márquez, J.




WE CONCUR:




  Bamattre-Manoukian, Acting P.J.




  Grover, J.
