Filed 6/30/14 McDonnell v. Jarvis 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


JOHN L. MCDONNELL, JR., as Trustee,                                  H037704
etc.,
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. P31598)

         v.

TODD JARVIS,

         Defendant and Appellant.


                                              I. INTRODUCTION
         The Jarvis Ranch, which includes more than 300 acres of agricultural land in
Monterey County, is an asset of the Jarvis Replacement Administrative Trust (the Trust).
Appellant Todd Jarvis and his brother James Jarvis1 are co-settlors and beneficiaries of
the Trust. Respondent John McDonnell, Jr. is the court-appointed trustee.
         At all times since McDonnell was appointed trustee in 2004 issues arising from
the Trust have been litigated in Monterey County Superior Court. In 2011, Todd filed a
motion to change venue to Alameda County. Todd argued that under the statute




         1
        For ease of reference and meaning no disrespect, we will refer to Todd Jarvis and
James Jarvis by their first names.
governing venue in trust actions, Probate Code section 17005, subdivision (a)(1),2
Alameda County is the proper venue since McDonnell administers the Trust from his law
offices in Oakland. The probate court denied the venue motion on the grounds of judicial
estoppel and waiver, finding, among other things, that McDonnell’s office has been
located in Oakland since his 2004 appointment, and ordered Todd’s attorney to pay
attorney’s fees of $4,812 because the motion was brought in bad faith and for purposes of
delay.
         On appeal, Todd argues that the trial court erred since his venue motion had merit
and an award of attorney’s fees was not warranted. For reasons that we will explain, we
conclude that the trial court did not abuse its discretion and therefore we will affirm the
order denying the motion to change venue to Alameda County, including the award of
attorney’s fees.
                   II. FACTUAL AND PROCEDURAL BACKGROUND
         The Trust was originally created as part of a court-supervised settlement of a
dispute between Todd and James concerning the Jarvis Family Trusts, pursuant to an
agreement between Todd and James dated December 18, 1998.3 In 2004, Todd and
James executed a first amendment to the Trust and McDonnell was appointed as trustee
by order of the Monterey County Superior Court. The Trust’s primary asset is the Jarvis
Ranch, which is located in Monterey County and consists of 333.5 acres on the west side
of Highway 101 and two parcels on the east side of Highway 101.



         2
         All statutory references hereafter are to the Probate Code unless otherwise
indicated.
         3
         On our own motion, we take judicial notice of this court’s opinions in the prior
appeals in this matter, McDonnell v. Jarvis (Feb. 24, 2012, H035553) [nonpub. opn.] and
McDonnell v. Jarvis (Oct. 23, 2013, H036490) [nonpub. opn.]. (Evid. Code, § 452,
subd. (d)(1).) Our summary of the factual and procedural background includes some
information that we have taken from the prior opinions.

                                               2
       A. Todd’s Motion to Change Venue
       On June 13, 2011, McDonnell filed a petition for authority to borrow money
secured by a deed of trust on the Trust property. Under the terms of the Trust, the
petition was required because Todd had objected to the proposed loan of $1.5 million. In
support of the petition, McDonnell asserted that the loan was necessary to pay the Trust’s
current obligations, including legal fees and an income stream for the beneficiaries.
       On June 21, 2011, Todd responded to the petition by filing a motion to change
venue to Alameda County. Todd argued that Alameda County is the proper venue
because McDonnell administers the Trust from his law offices in Oakland and under
section 17002, subdivision (a) and section 17005, subdivision (a)(1), the venue for a
proceeding concerning a living trust is the principal place of administration of the trust.
Todd further argued that he had not waived the right to a change of venue because “[t]his
is an entirely different lawsuit based on different facts and circumstances from previous
lawsuits filed by [McDonnell].” According to Todd, a change of venue was also “good
sense” because “it has been exorbitantly expensive to pay [McDonnell] and his extensive
Oakland-based entourage to travel all the way from Oakland down to the Monterey
County Courthouse . . . and back to their offices in Oakland for [T]rust Probate Court
hearings.”
       In his opposition to the motion to change venue, McDonnell noted that Todd had
filed an ex parte application in 2010 that included a motion for change of venue to Santa
Clara County, which the probate court had denied. McDonnell also noted that Todd had
made verified representations in prior court filings that the principal place of
administration of the Trust was Monterey County. McDonnell attached as exhibits to the
opposition excerpts of ex parte petitions filed by Todd on September 8, 2009, and
September 9, 2009, in Monterey County Superior Court in this case (No. P31598). Both
excerpts included Todd’s statement that “[t]he principal place of administration of the
[Trust] is the County of Monterey.” Additionally, McDonnell asserted that the terms of

                                              3
the Trust gave the Monterey County Superior Court “exclusive jurisdiction.” McDonnell
therefore contended that the principal place of administration of the Trust is, and has
always been, Monterey County.
       McDonnell also requested an award of attorney’s fees and costs in the amount of
$4,812.50 against Todd’s attorney pursuant to Code of Civil Procedure section 396b,
subdivision (b) on the grounds that the motion to change venue was filed in bad faith and
for purposes of delay.
       B. Order Denying Venue Motion
       On September 7, 2011, the probate court entered its order denying Todd’s motion
for a change of venue to Alameda County and awarding attorney fees of $4,812 to
McDonnell, to be paid by Todd’s attorney Robin Calder in her capacity as counsel for the
moving party.
       The order also includes the probate court’s findings: (1) the principal place of
administration of the Trust within the meaning of section 17002, subdivision (a) is
Monterey County; (2) Todd and Calder “having previously asserted in two petitions filed
in this case” that the principal place of Trust administration was Monterey County, Todd
was “judicially estopped from taking a contrary position when none of the supporting
facts have changed”; (3) Todd was also judicially estopped from taking taking a contrary
position because he had nominated McDonnell as trustee in 2004 knowing that
McDonnell maintained his office in Alameda County and had subsequently represented
to the court that the principal place of Trust administration is Monterey County; (4) Todd
had waived any objections to venue in Monterey County because he, and at times when
represented by attorney Calder, had represented in responses to several petitions filed in
this case since 2004 that the principal place of Trust administration is Monterey County,
without objecting to venue in Monterey County; (5) Todd and attorney Calder had shown
no grounds for a new motion for change of venue since their previous motion for change
of venue brought less than a year ago, given that the facts establishing the principal place

                                             4
of Trust administration in Monterey County had not changed since 2004; and (6) the
instant motion to change venue was filed in bad faith and for purposes of delay under
Code of Civil Procedure section 396b, subdivision (b).
       Todd subsequently filed notices of appeal from the September 7, 2011 order
denying his motion for change of venue and awarding attorney’s fees and the October 19,
2011 order granting McDonnell’s petition for authority to borrow money secured by a
deed of trust on Trust property.
                                    III. DISCUSSION
       On appeal, Todd challenges only the September 7, 2011 order denying his motion
for a change of venue to Alameda County and awarding attorney’s fees. Our review is
therefore limited to the September 7, 2011 order and we will not address the October 19,
2011 order granting the petition for authority to borrow money secured by a deed of trust
on Trust property.4
       A. The Motion to Change Venue to Alameda County
              1. The Parties’ Contentions
       Todd argues that under section 17002, subdivision (a), the proper venue for
petitions concerning the Trust is Alameda County.5 According to Todd, Alameda County



       4
          We deny Todd’s October 25, 2012 request for judicial notice of three
documents, including the California State Bar records of respondent’s counsel and certain
court documents previously filed by Todd in Trust litigation in Monterey County
Superior Court, on the ground that these documents are irrelevant to the issues to be
decided in this appeal. (See, e.g., Hayward Area Planning Assn. v. City of Hayward
(2005) 128 Cal.App.4th 176, 182 [only relevant material is a proper subject of judicial
notice].)
       5
          Todd also argues on appeal that venue is proper in San Francisco County since
McDonnell’s law offices are now located there. We will disregard this argument since it
was not made in the proceedings below and relies on facts outside the record on appeal.
“ ‘ “Statements of alleged fact in the briefs on appeal which are not contained in the
record and were never called to the attention of the trial court will be disregarded by this

                                              5
is the principal place of administration of the Trust since McDonnell carries on the day-
to-day activities of the Trust in his law offices in Oakland.
       We understand Todd to also argue that every petition concerning a living trust
constitutes a new action in which a motion to change venue may be properly made. Todd
explains that his motion to change venue to Alameda County, made in response to
McDonnell’s petition for authority to borrow money secured by a deed of trust on Trust
property, was therefore timely and procedurally correct although the litigation of prior
Trust petitions took place in Monterey County Superior Court. For the same reason,
Todd contends that he has not waived his venue challenge. Todd also contends that
denial of his venue motion is prejudicial.
       McDonnell responds that the probate court properly determined that Todd’s venue
motion was barred on the grounds of judicial estoppel and waiver, since Todd (1) did not
specify venue in Alameda County when Alameda County-based McDonnell was
appointed trustee in 2004; (2) stated under penalty of perjury in petitions filed in 2009
that the principal place of Trust administration is Monterey County; (3) did not state that
venue in Monterey County was improper in his prior motion to change venue to Santa
Clara County; and (4) failed to object to venue in Monterey County during the seven
years of Trust litigation preceding the motion to change venue to Alameda County.
       We will begin our evaluation of the parties’ contentions with an overview of the
rules governing venue in trust actions and the applicable standard of review for an order
denying a motion to change venue.




court on appeal.” ’ [Citation.]” (Cassidy v. California Bd. of Accountancy (2013)
220 Cal.App.4th 620, 628.)


                                              6
                2. Venue in Trust Actions
       The statutes governing venue in trust actions are section 17005 and section 17002.
(See Estate of Ivey (1994) 22 Cal.App.4th 873, 880 (Ivey).) Regarding living trusts,6
section 17005, subdivision (a)(1) provides: “The proper county for commencement of a
proceeding pursuant to this division is . . . : [¶] . . . In the case of a living trust, the
county where the principal place of administration of the trust is located.”
       Section 17002, subdivisions (a) and (b)(1) further provides: “The principal place
of administration of the trust is the usual place where the day-to-day activity of the trust
is carried on by the trustee or its representative who is primarily responsible for the
administration of the trust. [¶] . . . If the principal place of administration of the trust
cannot be determined under subdivision (a), it shall be determined as follows: [¶] . . . If
the trust has a single trustee, the principal place of administration of the trust is the
trustee’s residence or usual place of business.”
       The Probate Code does not provide rules for a motion to change venue in a trust
proceeding. However, section 1000 of the Probate Code provides for the application of
the Code of Civil Procedure, as follows: “Except to the extent that this code provides
applicable rules, the rules of practice applicable to civil actions, . . . apply to, and
constitute the rules of practice in, proceedings under this code.” Thus, section 1000
“provides that the provisions of the Code of Civil Procedure apply when the Probate
Code is silent as to a particular rule of procedure. [Citations.]” (Schwartz v. Schwartz
(2008) 167 Cal.App.4th 733, 742.)
       Accordingly, Code of Civil Procedure section 396b (hereafter, section 396b),
which governs transfer of venue in civil actions, applies to a motion to change venue in a
trust proceeding. (See Ivey, supra, 22 Cal.App.4th at p. 880.) Section 396b, subdivision
(a) provides, with exceptions not relevant here, that “if an action or proceeding is


       6
           The parties agree that the Trust is a living trust.

                                                 7
commenced in a court having jurisdiction of the subject matter thereof, other than the
court designated as the proper court for the trial thereof, under this title, the action may,
notwithstanding, be tried in the court where commenced, unless the defendant, at the time
he or she answers, demurs, or moves to strike, or, at his or her option, without answering,
demurring, or moving to strike and within the time otherwise allowed to respond to the
complaint, files with the clerk, a notice of motion for an order transferring the action or
proceeding to the proper court, together with proof of service, upon the adverse party, of
a copy of those papers. Upon the hearing of the motion the court shall, if it appears that
the action or proceeding was not commenced in the proper court, order the action or
proceeding transferred to the proper court.”
       The standard of review for an order granting or denying a motion to change venue
is abuse of discretion. (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)
“A trial court abuses its discretion when venue is mandatory in a county other than the
county where the action has been brought. [Citation.]” (State Bd. of Equalization v.
Superior Court (2006) 138 Cal.App.4th 951, 954.)
       We next address the issue of whether the probate court abused its discretion in
denying Todd’s motion to change venue on the ground of judicial estoppel, since our
resolution of that issue is dispositive.
              3. Judicial Estoppel
       The California Supreme Court has instructed that “ ‘ “[j]udicial estoppel precludes
a party from gaining an advantage by taking one position, and then seeking a second
advantage by taking an incompatible position. [Citations.] The doctrine’s dual goals are
to maintain the integrity of the judicial system and to protect parties from opponents’
unfair strategies. [Citation.]” ’ ” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 (Aguilar)
Thus, “ ‘ “ ‘ “[j]udicial estoppel is ‘intended to protect against a litigant playing “fast and
loose with the courts.” ’ ” ’ . . . ‘It seems patently wrong to allow a person to abuse the
judicial process by first [advocating] one position, and later, if it becomes beneficial, to

                                               8
assert the opposite.’ ” ’ [Citation.]” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169-
170.)
        The doctrine of judicial estoppel “applies when ‘(1) the same party has taken two
positions; (2) the positions were taken in judicial or quasi-judicial administrative
proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal
adopted the position or accepted it as true); (4) the two positions are totally inconsistent;
and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’
[Citations.]” (Aguilar, supra, 32 Cal.4th at pp. 986-987; accord, MW Erectors, Inc. v.
Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.)
        “We review the findings of fact upon which the application of judicial estoppel is
based under the substantial evidence test. [Citation.] When the facts are undisputed, we
independently review whether the elements of judicial estoppel have been satisfied.
[Citation.] Whether the doctrine should be applied even if the necessary elements are
satisfied is a matter within the discretion of the trial court, which we review under the
abuse of discretion standard. [Citation.]” (Owens v. County of Los Angeles (2013)
220 Cal.App.4th 107, 121 (Owens).)
        In the present case, the facts on which the probate court based its application of
judicial estoppel are undisputed. We will therefore independently review whether the
five elements of judicial estoppel were satisfied. (Owens, supra, 220 Cal.App.4th at
p. 121.)
        First, it is clear that Todd has taken two positions regarding the principal place of
administration of the Trust, and therefore the first element of judicial estoppel is satisfied.
In ex parte petitions filed in this case (No. P31598) on September 8, 2009, and September
9, 2009, in Monterey County Superior Court, Todd stated his position that “[t]he
principal place of administration of the [Trust] is the County of Monterey.” In the 2011
motion to change venue at issue in this appeal, Todd has asserted that the principal place
of administration of the Trust is Alameda County.

                                               9
       The second element of judicial estoppel is satisfied because Todd obviously
asserted his two positions regarding the principal place of administration of the Trust in
judicial proceedings. (Aguilar, supra, 32 Cal.4th at p. 986.)
       As to the third element of judicial estoppel, Todd was successful in asserting his
first position—that the principal place of Trust administration was Monterey County—
since the record reflects that the Monterey County Superior Court has been the venue for
prior proceedings involving the Trust since 2004.
       Todd’s two positions regarding the principal place of administration of the Trust
are clearly inconsistent since the principal place of administration of the Trust cannot be
both Monterey County and Alameda County, absent a change in circumstances not
present here. (See Prob. Code, § 17005, subdivision (a)(1); and § 17002, subd. (a).) The
fourth element of judicial estoppel is therefore satisfied. (Aguilar, supra, 32 Cal.4th at p.
986.) Finally, the fifth element of judicial estoppel is satisfied because Todd has not
argued that his first position—that the principal place of Trust administration is Monterey
County—was taken as the result of ignorance, fraud, and mistake. (Aguilar, supra,
32 Cal.4th at pp. 986-987.)
       Having determined that the elements of judicial estoppel are satisfied, we next
determine whether the probate court abused its discretion in applying judicial estoppel
“under the particular facts and circumstances of this case.” (Owens, supra,
220 Cal.App.4th at p. 122.) “ ‘ “The appropriate test for abuse of discretion is whether
the trial court exceeded the bounds of reason.” ’ ” (In re Jasmine D. (2000)
78 Cal.App.4th 1339.)
       Here, the facts and circumstances include the litigation of multiple petitions
involving the Trust in Monterey County Superior Court since McDonnell was appointed
trustee in 2004. The circumstances also include Todd’s failure to seek a venue change to
Alameda County until 2011, when he filed the motion to change venue to Alameda
County in response to McDonnell’s petition for authority to borrow money secured by a

                                             10
deed of trust on Trust property. The basis of Todd’s 2011 venue motion was his
contention that the principal place of Trust administration is Alameda County because
McDonnell’s law offices are located in Oakland. However, it is undisputed that
McDonnell has maintained his law offices in Oakland continuously since his appointment
in 2004. Thus, McDonnell’s law offices were in Oakland at the time of Todd’s 2009
statements in probate court filings in this case (No. P31598) that the principal place of
Trust administration is Monterey County.
       Based on these facts and circumstances, we conclude that the probate court could
reasonably find that judicial estoppel applied and therefore the court did not abuse its
discretion in denying Todd’s motion to change venue on that ground. Having reached
this conclusion, we need not address the issues of waiver and prejudice.
       Todd’s argument that each petition filed by McDonnell concerning the Trust
constitutes a new action that is properly subject to a motion to change venue does not
persuade us to change our conclusion. Todd has not provided any direct legal authority
for the proposition that a petition filed by the trustee in trust proceedings, under the same
probate court case number as many previous petitions involving the same trust,
nevertheless constitutes a new action for venue purposes.
       Having concluded that the trial court did not abuse its discretion, we will affirm
the order denying Todd’s motion to change venue to Alameda County.
       B. Attorney’s Fees
       Todd’s final argument on appeal is that the probate court erred in finding that
Todd brought the motion to change venue to Alameda County in bad faith and for
purposes of delay and awarding attorney fees of $4,812 to McDonnell as the prevailing
party under section 396b, subdivision (b)(2), to be paid by Todd’s attorney, Robin
Calder, in her capacity as counsel for the moving party. Todd does not challenge the
amount of the award.



                                             11
       Todd argues that the delay in hearing the motion to change venue to Alameda
County was only 32 days and was the result of McDonnell’s attorney’s vacation and the
available hearing dates. Todd further argues, without citation to relevant authority, that
even if there was a mistake of law in bringing the venue motion, a mistake of law cannot
be punished pursuant to a theory of judicial estoppel. Alternatively, Todd asserts that the
probate court ruled from the bench during the July 27, 2011 hearing on the venue motion
that his attorney had not acted in bad faith and there is no evidence that the motion was
brought for an improper purpose.
       McDonnell disagrees. He argues that the probate court’s finding that the venue
motion was brought in bad faith and for purposes of delay is supported by substantial
evidence since, as the court determined, there had not been any change in the facts that
would warrant bringing another motion to change venue less than a year after Todd’s
previous motion to change venue to Santa Clara County was denied. McDonnell also
points out that although the probate court awarded attorney’s fees against Todd at the
time of the July 27, 2011 hearing, the written order filed on September 7, 2011 awarded
attorney’s fees against Todd’s attorney to comply with the provision of section 396b,
subdivision (b)(2) that such fees are the personal liability of the attorney.
       An award of attorney’s fees to the prevailing party on the denial of a motion to
change venue is authorized by section 396b. Section 396b, subdivision (b) provides that
“[i]n its discretion, the court may order the payment to the prevailing party of reasonable
expenses and attorney’s fees incurred in making or resisting the motion to transfer
whether or not that party is otherwise entitled to recover his or her costs of action. In
determining whether that order for expenses and fees shall be made, the court shall take
into consideration (1) whether an offer to stipulate to change of venue was reasonably
made and rejected, and (2) whether the motion or selection of venue was made in good
faith given the facts and law the party making the motion . . . knew or should have known.
As between the party and his or her attorney, those expenses and fees shall be the

                                              12
personal liability of the attorney not chargeable to the party. Sanctions shall not be
imposed pursuant to this subdivision except on notice contained in a party’s papers, or on
the court’s own noticed motion, and after opportunity to be heard.” (Italics added.)
       Thus, under section 396b, subdivision (b) “the court is empowered to assess
attorney fees against a lawyer who files an action in the wrong county or a lawyer who
files a motion for a change of venue found to be without merit.” (Metzger v. Silverman
(1976) 62 Cal.App.3d Supp. 30, 40 [construing former section 396b].)
       The California Supreme Court has stated the standard of review for an order
awarding attorney’s fees under section 396b: “Where, as here, the trial court has
discretionary power to decide an issue, its decision will be reversed only if there has been
a prejudicial abuse of discretion. ‘ “To be entitled to relief on appeal . . . it must clearly
appear that the injury resulting from such wrong is sufficiently grave to amount to a
manifest miscarriage of justice . . . . [Citations.]” ’ [Citation.]” (Mission Imports, Inc. v.
Superior Court (1982) 31 Cal.3d 921, 932 (Mission Imports).) The Mission Imports
court determined that the trial court did not abuse its discretion in awarding costs and
attorney’s fees under former section 396b where the motion for change of venue “clearly
lacked any legal foundation given the facts [the moving party] knew or should have
known.” (Ibid.)
       We similarly determine that the probate court did not abuse its discretion in
awarding attorney’s fees in the present case, given the facts Todd knew or should have
known before making his motion to change venue to Alameda County. (§ 396b,
subdivision (b)(2).) The record reflects that when Todd brought the motion to change
venue to Alameda County in 2011 based on his contention that the principal place of
administration of the Trust is Alameda County, because McDonnell conducts the day-to-
day activities of the Trust from his law offices in Oakland, Todd knew or should have
known that (1) he had stated in probate court filings in 2009 that the principal place of
Trust administration is Monterey County; (2) he had recently made a motion to change

                                              13
venue to Santa Clara County that was denied; (3) McDonnell’s law office has been
continuously located in Oakland since McDonnell’s appointment as trustee in 2004; and
(4) the petitions filed by McDonnell with regard to the Trust, with the exception of the
2011 petition for authority to borrow money secured by a deed of trust on Trust property,
had been litigated in Monterey County since 2004 without Todd moving to change venue
to Alameda County. Consequently, the probate court could reasonably determined that
given the facts Todd knew or should have known, his motion to change venue to
Alameda County was not made in good faith.
       The decision on which Todd relies, Cloud v. Northrop Grumman Corp. (1998)
67 Cal.App.4th 995, 1018 does not aid him because that decision concerns the application
of judicial estoppel in the bankruptcy context and does not address an award of attorney’s
fees under section 396, subdivision (b).
       Further, we find that the record does not support Todd’s contention that the
probate court ruled from the bench during the July 27, 2011 hearing on the motion to
change venue to Alameda County that attorney Calder had not acted in bad faith.
Attorney Calder inquired of the court, “You’re imposing sanctions on me for bad faith?”
The court responded, “I am not awarding them against you. I’m awarding them against
your client.” As McDonnell has noted, the written order of September 7, 2011, awarded
attorney’s fees to McDonnell as the prevailing party, to be paid by attorney Calder in her
capacity as attorney for the moving party, to comply with the requirement of section
396b, subdivision (b)(2) that fees awarded to the prevailing party on a motion to change
venue “shall be the personal liability of the [moving party’s] attorney not chargeable to
the party.”
       In any event, section 396b, subdivision (b)(2) does not require a finding that the
moving party’s attorney acted in bad faith, since the statute expressly provides for a
determination of whether the venue motion was made in good faith “given the facts and
law the party making the motion . . . knew or should have known.” [Italics added.]

                                            14
       For these reasons, we determined that the probate court did not abuse its discretion
in awarding attorney’s fees of $4,812 to McDonnell as the prevailing party, to be paid by
attorney Calder in her capacity as attorney for the moving party.
                                  IV. DISPOSITION
       The September 7, 2011 order is affirmed. Costs on appeal are awarded to
respondent.



                  ___________________________________________
                               BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.




                                            15
