Filed 9/26/16 Alcala v. Santa Fe Rubber Products CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


ELIAS ALCALA et al.,                                                 B265749

         Plaintiffs and Respondents,                                 (Los Angeles County
                                                                     Super. Ct. No. BC459688)
         v.

SANTA FE RUBBER PRODUCTS, INC.,

         Defendant and Appellant.

SANTA FE RUBBER PRODUCTS, INC.,

         Cross-complainant and Appellant,

         v.

ELIAS ALCALA et al.,

         Cross-defendants and Respondents.
       APPEAL from a judgment and order of the Superior Court of Los Angeles
County. Ralph Dau, Michael Linfield and Joseph R. Kalin, Judges. Reversed and
remanded with directions in part, affirmed in part.


       Remer, DiVincenzo & Griffith, Joseph P. DiVincenzo for Defendant, Cross-
complainant and Appellant.


       Rothner, Segall & Greenstone, Glenn Rothner, Jonathan Cohen, Eli Naduris-
Weissman for Plaintiffs, Cross-defendants and Respondents.


       Gilbert & Sackman, Joshua F. Young, Benjamin M. O’Donnell for Cross-
defendants and Respondents.




             ___________________________________________________

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       Plaintiffs and respondents, employees of defendant and appellant Santa Fe Rubber
Products, Inc. (SFR), established that SFR committed Labor Code violations by
implementing a statutorily deficient, 20-minute meal period. We find that the trial court
correctly determined liability and assessed damages on plaintiffs’ cause of action for
Labor Code violations.
       We determine that the trial court erred, however, by preventing SFR from
presenting evidence relevant to equitable considerations potentially impacting plaintiffs’
right to restitution on a related cause of action for unfair business practices. We therefore
remand the action to the trial court with directions to conduct a bench trial regarding
equitable considerations relevant to plaintiffs’ claim for restitution.
                                     BACKGROUND
       Elias Alcala, Margarita Benavides, and Celio Jimenez, three employees of SFR,
filed a putative class action complaint alleging two causes of action: (1) that SFR
violated Labor Code sections 226.7 and 512, subd. (a),1 as well as Industrial Welfare
Commission (IWC) wage order 1-2001 (Cal. Code Regs., tit. 8, § 11010) by failing to
provide employees with 30-minute meal periods (the Labor Code claim), and (2) that the
failure to provide lawful meal periods constituted an unfair business practice under
Business and Professions Code section 17200, et seq. (the UCL claim). A class of all
persons employed at SFR between April 2007 and July 2010 was eventually certified.
Evidence presented on motion for summary adjudication
       Plaintiffs moved for summary adjudication of both the Labor Code and the UCL
claims. SFR opposed the motion. Evidence presented in connection with the motion for
summary adjudication included the following:
       Production employees at SFR are represented by the United Steel Workers’ Union
(the union). In 1997, all production workers began receiving a 20-minute paid meal




1      Unless otherwise noted, all further statutory references are to the Labor Code.


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break, resulting in a workday that lasted eight gross hours. Employees were paid for
eight hours of work.
      In March 2006, the union and employee representatives undertook collective
bargaining negotiations with SFR. In the negotiations, SFR expressed a preference that
employees receive a 30-minute unpaid meal break. SFR wished to implement an eight
and a half-hour shift, eight hours of which would be paid, so that SFR could “overlap”
shifts and increase production. The union and the employee representatives reacted
negatively to SFR’s offer of a 30-minute unpaid meal break because they did not want to
extend shifts by an additional 30 minutes. They claimed that the employees would go on
strike unless the meal period schedule remained the same, with the 20-minute paid meal
break in the middle of the shift, and a gross eight-hour workday. When SFR expressed
concerns about the legality of the 20-minute meal period, union representatives stated
that the union and SFR could legally agree on anything they wanted with respect to meal
break provisions, as long as it was contained in the collective bargaining agreement. SFR
acquiesced to the demand, and the collective bargaining agreement provided for “a
20 minute paid lunch near the middle of the shift.”
      Thus, during the period relevant to this lawsuit, from April 2007 until July 2010,
all SFR employees took a 20-minute paid meal break near the middle of their shifts and
had an eight-hour workday, including meal and rest breaks. On each shift, all employees
took their meal break at the same time of day. Employees knew when to take their meal
breaks based on an automated bell system used by SFR that sounded to signify the
beginning and end of the 20-minute meal period. During the meal period, operations shut
down completely and no employee performed any work. While this schedule was in
effect, SFR received no complaints regarding the 20-minute meal period.
      In July 2010, SFR and the union engaged in negotiations regarding a new
collective bargaining agreement. According to SFR, the union threatened that, unless
SFR agreed to certain concessions, the union would have a lawsuit filed asserting that
SFR violated meal break laws by enforcing a 20-minute meal period. SFR did not agree



                                            4
to the requested concessions, and it immediately implemented a 30-minute unpaid lunch
break based upon the advice of counsel.
       Employees were thereafter required to clock in and out for the 30-minute meal
period, and the bell schedule changed to reflect the new meal period. This action was
subsequently filed in April 2011.
The trial court’s ruling
       The trial court granted the motion for summary adjudication as to both the Labor
Code claim and the UCL claim, concluding the employees were entitled to a 30-minute
meal break but only a 20-minute period was provided. The court found that, regardless
of the circumstances surrounding the negotiation of the collective bargaining agreement,
the right to a 30-minute meal period was not subject to waiver by agreement. The court
further determined that, by proving the elements of their claims, plaintiffs were entitled to
summary adjudication, but further proceedings, including possible trial, on the actual
amount of damages (under the Labor Code claim) or remedies (under the UCL claim)
could be necessary.
Motion in limine
       Prior to the scheduled trial, plaintiffs filed a motion in limine seeking to prevent
SFR from presenting evidence regarding its affirmative defenses. Plaintiffs argued that,
to the extent SFR’s defenses concerned liability, those defenses had already been
overruled by the trial court’s prior ruling.
       The trial court granted the motion in limine, finding that the employees were
entitled to one hour of pay for every meal period of less than 30 minutes, and that this
calculation could be resolved by an accounting.
Trial and judgment
       The court held a one-day bench trial to determine the amount of damages and/or
restitution due the class. Plaintiffs called an economist as an expert witness, who gave an
opinion on the sum total owing to plaintiffs. His accounting was based on payroll
records, from which he estimated the number of days plaintiffs worked for more than five



                                               5
hours but did not receive a 30-minute meal break. SFR was given the opportunity to
present a differing accounting but did not do so.
       Following trial, the court issued judgment in favor of plaintiffs for a total of
$156,917 in damages and/or restitution (not including prejudgment interest). The court
explained that $98,426 of this amount was compensable as both damages, under the
Labor Code claim, and restitution, under the UCL claim. However, because the UCL
claim had a statute of limitations of four years, as opposed to the Labor Code claim’s
three years (see Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163,
178-179 (Cortez)), the remaining $58,491 represented an amount owed only as
restitution, not damages.
       SFR appealed from the judgment.
                                       DISCUSSION
I. The Labor Code claim
       A. SFR did not comply with its meal period obligations
       Section 512, subdivision (a) provides, in relevant part: “An employer may not
employ an employee for a work period of more than five hours per day without providing
the employee with a meal period of not less than 30 minutes, except that if the total work
period per day of the employee is no more than six hours, the meal period may be waived
by mutual consent of both the employer and employee.” Subdivision 11(A) of IWC
wage order 1-2001 (Cal. Code Regs., tit. 8, § 11010), which applies to workers (like
plaintiffs) in the manufacturing industry, imposes identical meal period requirements. In
turn, both section 226.7, subdivision (c), and subdivision 11(D) of wage order 1-2001
require an employer that fails to provide the mandated meal period to pay employees one
additional hour of pay at employees’ regular rate of compensation for each workday that
the meal period is not provided. This additional hour of pay is referred to as a “premium”
wage. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114
(Murphy).)
       The Supreme Court has explained an employer’s general duty in supplying the 30-
minute meal period: “An employer’s duty with respect to meal breaks under both section

                                              6
512, subdivision (a) and [the applicable wage order] is an obligation to provide a meal
period to its employees. The employer satisfies this obligation if it relieves its employees
of all duty, relinquishes control over their activities and permits them a reasonable
opportunity to take an uninterrupted 30-minute break, and does not impede or discourage
them from doing so.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004, 1040.) An employer is only obligated to provide bona fide relief from work duties
during this 30-minute period, not to police meal breaks to ensure no work is performed.
(Id. at pp. 1040-1041.) In most circumstances, including those applicable here, the meal
period must take place within the first five hours of an employee’s workday. (Id. at p.
1041.)
         The evidence presented on summary adjudication in this matter established that
SFR employees received only a 20-minute mid-shift meal break during the relevant time
period. Nevertheless, SFR argues that it complied with its obligation, as outlined in
Brinker, to supply an adequate meal period. SFR contends that, by seeking to implement
a 30-minute unpaid meal period during collective bargaining negotiations, it effectively
“provided” a compliant meal period, even though it actually implemented a 20-minute
paid break. We disagree.
         SFR focuses on Brinker’s admonition that “employees cannot manipulate the
flexibility granted them by employers to use their breaks as they see fit to generate”
premium wage liability. (Brinker, supra, 53 Cal.4th at p. 1040.) Brinker also noted that
what would “suffice” for an employer in providing meal breaks “may vary from industry
to industry,” and that the court could not “delineate the full range of approaches in each
instance might be sufficient to satisfy the law.” (Ibid.) Under these standards, courts
have an obligation to look at the totality of circumstances in deciding whether an
employer must pay premium wages to employees who work during mandated meal
periods. If the employer truly allows an uninterrupted 30-minute meal break, it will not
be liable for premium wages even if an employee chooses to work during the break,
while premium wages are warranted if the employer pressures employees “to perform
their duties in ways that omit breaks.” (Ibid.) In discussing an employer’s obligations,

                                             7
however, nowhere does Brinker suggest that a 20-minute meal period policy may satisfy
the Labor Code and wage order requirements of a 30-minute meal period.
       Meal period requirements, as expressed in the Labor Code and the IWC’s wage
orders, “have long been viewed as part of the remedial worker protection framework.”
(Murphy, supra, 40 Cal.4th 1094, 1105; Brinker, supra, 53 Cal.4th 1004, 1027.)
Accordingly, these provisions “must be interpreted in the manner that best effectuates
that protective intent.” (Brinker, at p. 1027.) Allowing an employer to satisfy its
obligations to “provide” the required meal period simply by stating in collective
bargaining negotiations that it wished to do so, before eventually agreeing to and
implementing a noncompliant period, would not promote this protective intent. Instead,
an employer must be held to its duty to allow employees to enjoy uninterrupted 30-
minute meal periods, except in situations where the Labor Code and wage orders provide
that the parties may depart from this requirement.
       In fact, the Labor Code and the applicable wage order do allow for flexibility in
certain situations. For example, if the nature of an employee’s work prevents the
employee from stopping all work during a mandated meal period, the employee and the
employer may, by revocable written agreement, implement an “‘on duty’” meal period.
(Wage order 1-2001, subd. 11(C).) SFR did not contend, however, that its employees
agreed to an on-duty meal period, no evidence of any such agreement was presented, and
the evidence did not show that an on-duty meal period was necessary.
       Additionally, section 512, subdivision (e) provides that certain employees covered
by collective bargaining agreements need not be provided with the meal period described
in section 512, subdivision (a). But this exception only applies to employees in particular
industries. (§ 512, subd. (f)).2 It did not apply to SFR employees.


2      Section 514 previously provided an exemption for employees in all industries who
were covered by valid collective bargaining agreements from section 512’s meal period
requirements, but the Legislature later amended section 514 so that it applies only to rules
regarding overtime pay and alternative workweek schedules. (Thurman v. Bayshore
Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1138.)


                                             8
       Thus, SFR was without authority to bargain away the required 30-minute meal
period. “[T]he right to meal periods is a generally applicable labor standard that is not
subject to waiver by agreement.” (Valles v. Ivy Hill Corp. (9th Cir. 2005) 410 F.3d 1071,
1081; see also Zavala v. Scott Brothers Dairy, Inc. (2006) 143 Cal.App.4th 585, 593-594
[following Valles].) Because the right to a 30-minute meal period in the first five hours
of work was non-negotiable, SFR could not lawfully implement a shorter meal period
schedule.
       SFR’s plight does evoke some sympathy. The evidence shows that, when the
collective bargaining agreement was negotiated in 2006, SFR would have preferred to
provide an unpaid 30-minute break, but it acquiesced to the union and employee
representatives’ demands for a paid 20-minute lunch break. The evidence also appears to
show that SFR may have been unaware of the legal requirement of a 30-minute meal
period. Ignorance, however, is not a defense to a Labor Code violation. (Heritage
Residential Care, Inc. v. Division of Labor Standards Enforcement (2011) 192
Cal.App.4th 75, 87.)
       B. SFR has not demonstrated reversible procedural error
       SFR argues that the trial court erred by granting summary adjudication while
allowing for further proceedings on the issue of damages. It also contends that the court
improperly prevented it from presenting defenses to the Labor Code claim.
       In granting summary adjudication as to the Labor Code claim, the court found that
plaintiffs established SFR was liable for violating sections 512 and 226.7. The court did
not determine the amount of damages awardable to plaintiffs. Instead, it ruled that trial
might still be necessary to determine damages. Subsequently, the court granted
plaintiffs’ motion in limine preventing SFR from presenting affirmative defenses. At
trial, based on an accounting presented by plaintiffs’ expert witness, the court determined
damages arising from the Labor Code claim.
       We find no reversible error. Whether summary adjudication can properly be
granted on a Labor Code claim without a determination of the actual amount of damages
is somewhat unclear. In examining the propriety of summary adjudication of a breach of

                                             9
contract claim, Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th
226, 241 (Paramount Petroleum), found that, since a moving party must prove each
element to obtain summary adjudication of a cause of action, and since damages are an
element of a breach of contract cause of action, summary adjudication on only the issue
of liability for breach of contract—with the amount of damages to be determined later—
is improper. In contrast, the plaintiff in People ex rel. Feuer v. Superior Court
(Cahuenga’s the Spot) (2015) 234 Cal.App.4th 1360 (People ex rel. Feuer) brought a
UCL claim that sought civil penalties. The appellate court determined that the penalties
were merely a remedy available to the plaintiff and were not an element of the cause of
action. Thus, the plaintiff could properly bring a motion for summary adjudication of the
UCL cause of action, with penalties appropriately determined in further proceedings. (Id.
at pp. 1364, 1372-1376.)
       Plaintiffs’ Labor Code claim appears more analogous to the UCL claim examined
in People ex rel. Feuer than the breach of contract claim at issue in Paramount
Petroleum. Sections 512, subdivision (a), and 226.7, subdivision (b), lay out the
elements for the meal period claim—generally, that an employer not employ an employee
for more than five hours without providing a meal period of at least 30 minutes (§ 512,
subd. (a)), and that an employer not require an employee to work during a mandated meal
period (§ 226.7, subd. (b)). The remedy for a violation—premium pay—is separately set
forth in section 226.7, subdivision (c). Thus, there appears to be no error in the trial
court’s ruling here.
       In any event, we need not definitively determine whether summary adjudication of
a meal period claim without determination of the actual amount of damages was entirely
proper because, even if there was trial court error, SFR fails to demonstrate it was
reversible error.3 The trial court found that plaintiffs established liability and were owed


3      SFR also argues summary adjudication was improper because plaintiffs’ motion
did not address SFR’s affirmative defenses. This argument is incorrect. (See Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 [“summary judgment law in this state
no longer requires a plaintiff moving for summary judgment to disprove any defense

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damages, and it simply deferred the calculation of the actual amount of damages to trial.
Subsequent to the court’s ruling on the motion for summary adjudication, both sides were
given an opportunity to present an accounting to determine damages. At trial, plaintiffs
presented an expert witness who opined on the amount of damages owing based on
SFR’s payroll records. SFR, in contrast, declined the opportunity of an accounting, and
presented no evidence to counter plaintiffs’ damages calculation.4
       SFR also fails to demonstrate that the trial court erred when it granted plaintiffs’
motion in limine prohibiting SFR from presenting affirmative defenses relevant to the
Labor Code claim at the damages trial. SFR already had the opportunity to argue its
defenses in opposing the motion for summary adjudication. (See Code Civ. Proc.,
§ 437c, subd. (p)(1) [once plaintiff meets burden on motion for summary adjudication of
a cause of action, burden shifts to defendant to show triable issue as to the cause of action
or a defense].) It did not successfully do so. To the extent SFR takes issue with
plaintiffs’ expert’s calculation of damages, it should have presented its own accounting.
       Moreover, at the trial court level and on appeal, SFR has not identified a material
issue of fact as to a defense that could have impacted the trial court’s ruling on the Labor
Code claim. SFR asserts that it should have been allowed to argue a number of equitable
defenses. Because plaintiffs established the Labor Code violation, however, equitable
defenses did not apply. (See Ghory v. Al-Lahham (1989) 209 Cal.App.3d 1487, 1492;
see also Cortez, supra, 23 Cal.4th 163, 179-180.) In Ghory, the plaintiff employee
sought overtime compensation after working long hours as a gas station attendant for a



asserted by the defendant as well as prove each element of his own cause of action. . . .
All that the plaintiff need do is to ‘prove[] each element of the cause of action.’”].)
4       At trial, SFR attempted to call its general manager to testify. The trial court did
not allow the testimony, correctly finding that it was not relevant to the issue of
accounting on the Labor Code claim. To the extent the general manager may have
testified with respect to liability on the Labor Code claim, the testimony was irrelevant
because plaintiffs had already established they received a 20-minute meal break during
the relevant time period.


                                             11
fixed monthly wage. The defendant employer argued that, because he agreed beforehand
with the plaintiff regarding the days and hours of employment, the plaintiff’s recovery of
overtime compensation was precluded by the equitable defense of unjust enrichment. In
rejecting this argument, the court concluded “[p]rinciples of equity cannot be used to
avoid a statutory mandate.” (Ghory, at p. 1492; see also Gomez v. J. Jacobo Farm Labor
Contr., Inc. (E.D.Cal. 2016) 2016 U.S. Dist. LEXIS 66922, *16-17 [equitable defenses,
including waiver, not applicable to Labor Code requirements, including meal breaks].)
Just so here: because the evidence showed that SFR did not provide the 30-minute meal
period required by the Labor Code, no equitable defenses could counter or offset
plaintiffs’ right to premium pay damages.
       Thus, the trial court correctly found liability and assessed damages on the Labor
Code claim.
II. The UCL claim
       As explained above, while the majority of restitution awarded by the trial court on
the UCL claim was duplicative of the damages awarded on the Labor Code claim,
$58,491 of the total amount awarded constituted only restitution under the UCL. This is
because a UCL claim, even if based on a violation of the Labor Code, has a four-year
statute of limitations, as opposed to the three-year statute of limitations applicable to the
Labor Code claim at issue in this case. (Cortez, supra, 23 Cal.4th 163, 178-179; see also
Bus. & Prof. Code, § 17208 [four-year statute of limitations]; Code Civ. Proc., § 338,
subd. (a) [three-year statute of limitations for statutory liability].) These differing statutes
of limitations matter here: although plaintiffs are properly awarded the damages already
determined on the Labor Code claim, the extra $58,491 in restitution may be decreased or
nullified on remand, as we find that SFR should be able to present evidence relevant to
equitable considerations impacting remedies for the UCL violation.5



5      Actually, the entirety of the UCL restitution is potentially subject to decrease, if
any is proper. Since the damages awarded on the Labor Code claim already represent a
floor for the latter three years of violation, however, this determination as to remedies

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         Plaintiffs had an actionable UCL claim based on SFR’s failure to provide a 30-
minute meal break. (See Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138,
1155-1156 (Safeway) [UCL claim may be predicated on nonpayment for missed or
shortened meal breaks].) Further, restitution under the UCL is properly sought for
recovery of premium wages. (Id. at pp. 1155-1156, 1162; see also Cortez, supra, 23
Cal.4th 163, 177-178 [orders for payment of unlawfully withheld wages are a proper
remedy under the UCL].) Moreover, the trial court did not clearly err by finding liability
on the UCL claim at the summary adjudication stage without determining the proper
measure of restitution. (People ex rel. Feuer, supra, 234 Cal.App.4th 1360, 1364, 1372-
1376.)
         Nevertheless, the trial court committed prejudicial error by preventing SFR from
presenting evidence at trial relevant to the equities of restitution on the UCL claim.
Although “equitable defenses may not be asserted to wholly defeat a UCL claim since
such claims arise out of unlawful conduct,” “equitable considerations” may “guide the
court’s discretion” in fashioning an appropriate remedy under the UCL. (Cortez, supra,
23 Cal.4th 163, 179.) The purpose of UCL remedies is “deterrence of and restitution for
unfair business practices.” (Ibid.) “Therefore, what would otherwise be equitable
defenses may be considered by the court when the court exercises its discretion over
which, if any, remedies authorized by [Business and Professions Code] section 17203
should be awarded.” (Id. at pp. 179-180.)
         Defendants asserted a number of equitable defenses—including setoff, estoppel,
waiver, and unclean hands—consideration of which is proper to determine the amount of
restitution, if any, that is appropriately ordered.6 The evidence already presented shows


will only materially impact the judgment as to the first year, for which only restitution is
potentially awardable.
6      Among other possible considerations, “[i]n suitable circumstances, ‘the return of
the excess of what the plaintiff gave the defendant over the value of what the plaintiff
received’ is an appropriate measure of restitution.” (Safeway, supra, 238 Cal.App.4th
1138, 1162.)

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that equity may require restitution of less than the amount awarded by the trial court, if
any restitution is appropriate. Trial relevant to restitution and equitable considerations is
necessary so that the trial court can properly decide an appropriate remedy for the UCL
violation.
III. SFR has forfeited challenge to the sustained demurrer to its cross-complaint
       SFR filed a cross-complaint, and several amended cross-complaints, against the
union and certain former employees. The trial court eventually sustained a demurrer to
the third amended cross-complaint, without leave to amend.
       In its opening brief, SFR provides essentially no description of the allegations in
the cross-complaint, the basis for demurrer, or legal reasoning relevant to its unsupported
conclusion that the trial court erred by sustaining the demurrer. We therefore consider
SFR’s argument as to this issue forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to
develop appellants’ arguments for them. [Citation.] The absence of cogent legal
argument or citation to authority allows this court to treat the contentions as waived.”];
North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 679 [point not
made in opening brief is forfeited].)
                                        DISPOSITION
       The judgment is reversed. On remand, the trial court shall conduct a bench trial to
consider equities (based on SFR’s asserted equitable defenses) relevant to remedies for
the UCL claim, liability having been established. The trial court shall determine, given
equitable considerations, how much restitution, if any, is properly awarded to plaintiffs.
No trial on the Labor Code claim is warranted, as the trial court has already appropriately
determined liability and damages with respect to this claim. The order dismissing SFR’s
cross-complaint is affirmed.




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     The parties shall bear their own costs on appeal.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                        BOREN, P.J.
We concur:


     ASHMANN-GERST, J.


     CHAVEZ, J.




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