Filed 11/18/15 Blumberg Law Corp. v. Diner CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




BLUMBERG LAW CORPORATION,                                             B259958

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NC058424)
         v.

ALAN DINER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael P. Vincencia, Judge. Affirmed.
         Alan Diner, in pro per., for Defendant and Appellant.
         Ave Buchwald and John P. Blumberg for Plaintiff and Respondent.




                                  ________________________________
                                 INTRODUCTION
      Appellant Alan Diner retained respondent Blumberg Law Corporation to
represent him after he was terminated by his former employer. After the
employment matter was settled following mediation, the parties had a dispute over
the attorney fees and costs. Respondent filed a complaint seeking its fees and
costs, and appellant filed a cross-complaint alleging that respondent had breached
the retainer agreement by failing to agree to arbitrate the fee dispute. Following a
bench trial, the trial court found in favor of respondent and against appellant on
both the complaint and the cross-complaint. Appellant appeals, contending the
trial court committed numerous errors. Finding no reversible error, we affirm.


           FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      On December 11, 2012, respondent filed a verified complaint for breach of
contract and declaratory relief against appellant. The complaint sought a
declaration that respondent was entitled to approximately $50,000 in attorney fees
and costs pursuant to the contingency fee provision in the retainer agreement, and
damages in that amount.
      In response, appellant filed a petition to compel arbitration of the action,
arguing that the retainer agreement contained an arbitration clause. Respondent
opposed the petition, contending there was no enforceable arbitration agreement,
as appellant had not agreed to arbitration when he failed to initial the arbitration
       1
clause. On April 24, 2013, the trial court denied appellant’s petition to compel
arbitration.


1
      The second paragraph of the arbitration clause provides: “‘By initialing
below, client confirms that he/she has read and understands this provision, and
voluntarily agrees to binding arbitration. In doing so, client voluntarily gives up

                                           2
      On July 18, 2013, appellant filed a verified cross-complaint for violation of
the Consumer Legal Remedies Act (CLRA), Civil Code section 1750 et seq., and
for breach of contract. The cross-complaint alleged that respondent had violated
the CLRA and breached the retainer agreement when it refused to arbitrate the fee
dispute. Respondent answered the cross-complaint, arguing (1) that appellant was
precluded from filing the cross-complaint, as the court had previously denied
appellant’s motion to compel arbitration, and (2) that appellant had never agreed to
arbitration.
      On July 14, 2014, appellant filed motions in limine to exclude (1) evidence
of, or reference to, the settlement in the underlying mediation, including the
amount of the settlement, and (2) parol evidence regarding the retainer agreement,
including evidence about the meaning of “‘the amount initially offered by
[Employer] as severance.’” Respondent opposed the motions in limine, and on
August 8, 2014, the trial court denied appellant’s motions.
      The parties filed their trial briefs in August 2014. In his brief, appellant
acknowledged that he had waived his right to a jury trial as a result of his
“inadvertent untimely payment” of jury fees. Appellant requested that the trial
court exercise its discretion to grant him relief from his waiver, arguing that he
mistakenly relied on a version of Code of Civil Procedure section 631 that had
                        2
been amended in 2012.



important constitutional rights to trial by judge or jury, as well as rights to appeal.
Client is advised of the right to have independent counsel review this arbitration
provision, and this entire agreement, prior to initialing this provision or signing this
Agreement. ___ (Client’s Initials)’”
2
      All further statutory citations are to the Code of Civil Procedure, unless
otherwise stated.

                                           3
      As to respondent’s complaint, appellant argued that the retainer agreement
was voidable pursuant to Business and Professions Code section 6147 due to
respondent’s purported failure to provide a signed copy of the agreement. To the
extent the agreement was not voidable, appellant acknowledged that the
agreement’s contingency fee provision provided that the fee shall be “‘one-third of
the gross recovery minus the amount initially offered by [Employer] as
severance.’” He asserted that the contingency fee provision was unambiguous, and
thus, parol evidence should not be considered in interpreting it. He further
contended that the mediation confidentiality provisions in the Evidence Code
precluded the court from considering the underlying mediation, including the
settlement amount, to interpret the fee provision. Finally, to the extent the
contingency fee provision was not ambiguous, appellant argued that any ambiguity
should be construed against respondent, who had drafted the retainer agreement.
      Appellant’s trial brief also provided his interpretation of the contingency fee
provision. According to appellant, his former employer had made two offers of
severance, one for “‘two years of salary’” -- $268,000 -- and a later offer for
“‘$28,359.73.’” Based on the chronological date of the offers, appellant contended
the amount of “severance” initially offered was “‘two years of salary.’” Appellant
further argued that the phrase “‘one-third of the gross recovery minus the amount
initially offered by [Employer] as severance’” meant that the fee should be
calculated by taking one-third of the gross recovery and subtracting from that
amount the “‘two years of salary’” in severance.
      Finally, as to his cross-complaint, appellant reiterated that the retainer
agreement had an arbitration clause that applied to fee disputes. He asserted he
was entitled to damages due to respondent’s refusal to arbitrate.




                                          4
      In its trial brief, respondent argued the trial court should not exercise its
discretion to grant appellant relief from his waiver of a jury trial due to the
unexplained and lengthy delay in seeking relief. As to appellant’s cross-complaint,
respondent contended it failed to assert viable causes of action, as appellant had
not agreed to arbitrate, and he was precluded from filing the cross-complaint due to
his failure to appeal the court’s order denying his motion to compel arbitration.
      As to its own complaint, respondent contended the contingency fee
provision was ambiguous, as the amount of severance could be ascertained only
from extrinsic evidence. Respondent asserted that extrinsic evidence -- principally
e-mail correspondence between the parties -- would show (1) that appellant
initially informed respondent that the “severance” amount was approximately
$28,360; (2) that the offer of “‘two years in salary’” was not a severance offer, was
withdrawn by the employer, and was not disclosed by appellant until a month after
the retainer agreement had been signed; and (3) that appellant understood “‘gross
recovery would be defined as the amount in excess of $28,360.’” Respondent
contended that a redacted copy of the settlement agreement -- showing the
$175,000 settlement amount -- was admissible notwithstanding mediation
confidentiality because the agreement expressly provided that it was admissible.
                                                                                      3
      On August 18, 2014, the first day of trial, appellant requested a jury trial.
He reiterated the argument made in his trial brief that his failure to make timely
payment of the jury fees was attributable to an amendment to section 631 in late
2012. The court declined to exercise its discretion to allow a jury trial, noting,
inter alia, that section 631 had been amended prior to the filing of the complaint,


3
      As the court proceedings were not recorded, the following facts are drawn
from the stipulated settled statement in lieu of a reporter’s transcript (Cal. Rules of
Court, rule 8.137) and the court’s written statement of decision.

                                           5
and that appellant had failed to explain the lengthy delay in depositing the jury
fees.
        The case was tried to the court. Both appellant and attorney John Blumberg
testified. The court found appellant “intelligent” and “sophisticated,” but found his
testimony “not credible” on key issues in dispute. As to respondent’s claims, the
trial court determined that respondent was entitled to attorney fees and costs for the
legal services it had provided appellant. The court rejected appellant’s argument
that respondent had violated Business and Professions Code section 6147,
determining that the provision, via e-mail, of a copy of the retainer agreement,
signed by appellant and Blumberg, constituted compliance with the statute.
        The court ruled that it could consider parol evidence in determining the
amount of attorney fees. Based on parol evidence and its evaluation of witness
credibility, the court found that the parties intended the “‘amount initially offered
by [Employer] as severance’” to be $28,359.73. It specifically found that the offer
of two years of salary was not disclosed to respondent until after the retainer
agreement was signed, that the offer had been withdrawn, and that it was
dependent on a change in control of the employer’s business, which no evidence
indicated had occurred. The court also found that “it was the intent of the parties
that the attorney’s fee be calculated by subtracting $28,359 from the gross recovery
and then multiplying that number by the applicable contingency percentage which
is one-third.” As the amount recovered was $175,000, respondent was entitled to
$48,880.08. Finally, the court ruled that respondent was entitled to prejudgment
interest on the attorney fees starting from August 22, 2012, as that was the date
appellant sent an e-mail to Blumberg disputing the fees respondent was seeking.
The court also found that respondent was entitled to reasonable costs in the amount
of $1,466.40.


                                           6
        As to appellant’s cross-complaint, the trial court ruled that the cross-
complaint stated no viable cause of action, as appellant, in failing to initial the
arbitration clause, never agreed to arbitrate any fee dispute. The court further
found the cross-complaint barred by the court’s previous denial of appellant’s
motion to compel arbitration. The court granted respondent’s motion for judgment
on the cross-complaint pursuant to section 631.8. Judgment in favor of respondent
on both its complaint and appellant’s cross-complaint was entered September 2,
2014.
        On September 15, 2014, appellant filed a notice of intent to move for a new
trial. In support of the motion for a new trial, appellant contended the trial court
had abused its discretion in not granting relief from his inadvertent jury waiver,
arguing for the first time that he had relied on a former local court rule. Appellant
also argued that the court erred in admitting the redacted copy of the settlement
agreement, as the admission of the settlement amount violated mediation
confidentiality. He specifically argued that without the “inadmissible” settlement
agreement, “there [was] insufficient evidence to support the decision and damages
are excessive.” Finally, appellant argued that no evidence supported the starting
date for prejudgment interest.
        Respondent opposed the motion for a new trial. It argued that appellant had
forfeited his argument that the court abused its discretion in denying appellant’s
request for a jury trial, because his request had been based on an entirely different
ground, viz., an amendment to section 631. Respondent further argued that the
settlement amount was admissible, as the parties to the settlement had agreed that
the terms of the agreement were admissible and could be disclosed under seal to a
court of law. Finally, respondent argued that Blumberg’s trial testimony supported
the starting date for prejudgment interest.


                                            7
      On October 2, 2014, the trial court denied appellant’s motion for a new trial.
Appellant timely noticed an appeal from the judgment following trial.


                                    DISCUSSION
      A.     Appellant has not Waived his Right to Appeal.
      Respondent previously filed a motion to dismiss the instant appeal, which
this court summarily denied. Respondent now renews the motion. (See, e.g., Ellis
v. Ellis (2015) 235 Cal.App.4th 837, 841, fn. 5 [summary denial of motion to
dismiss does not preclude later consideration by full panel].) Respondent contends
appellant waived his right to appeal by voluntarily agreeing to pay the money
judgment as part of a compromise. (See, e.g., Ryan v. California Interscholastic
Federation (2001) 94 Cal.App.4th 1033, 1041 [voluntary compliance with or
satisfaction of a judgment, as part of compromise or coupled with an agreement
not to appeal, constitutes implied waiver of right to appeal].) We find no waiver.
Respondent’s offer of compromise was not conditioned on appellant’s waiver of
his right to appeal. Moreover, prior to full performance, appellant expressly
reserved his right to appeal the judgment. Accordingly, the motion to dismiss the
appeal is denied.
       B.    The Trial Court did not Abuse its Discretion in Denying Appellant’s
Motion for Relief from his Waiver of Jury Trial.
       Under section 631, parties to a civil action have a right to a jury trial.
Appellant waived his right to a jury trial by failing to timely deposit the jury fees.
(See § 631, subd. (f) [enumerating grounds for waiver].) Under section 631,
subdivision (g), however, a court “may, in its discretion upon just terms, allow a
trial by jury although there may have been a waiver of a trial by jury.” Appellant
contends the trial court abused its discretion in denying his motion for relief from


                                           8
his waiver of a jury trial, as he inadvertently relied on a former local rule of the
Los Angeles Superior Court, and his deposit of jury fees would have been timely
under the former rule. We discern no abuse of discretion.

      At the time of trial, appellant argued he should be relieved from his waiver
of a jury trial because an amendment to section 631 in late 2012 resulted in his
untimely payment of jury fees. The court rejected the argument, noting that the
current version of section 631 was in effect prior to the filing of the complaint and
that appellant had not explained the delay. That ruling was well within the court’s
discretion. Appellant’s argument that he relied upon a superseded local rule was
not made until after trial had concluded. Accordingly, the argument was forfeited.
Appellant has not shown that the trial court erred in denying his motion for relief
from his waiver of a jury trial.
      C.     The Retainer Agreement was not Voidable.
      The trial court concluded that respondent was entitled to $48,880.08 in fees
and $1,466.40 in costs. Appellant contends respondent was entitled to no fees or
costs, as the retainer agreement was voidable and appellant was exercising his right
to void the contract.
      Business and Professions Code section 6147, subdivision (a) provides that
“[a]n attorney who contracts to represent a client on a contingency fee basis shall,
at the time the contract is entered into, provide a duplicate copy of the contract,
signed by both the attorney and the client . . . . The contract shall be in writing
and shall include, but is not limited to, all of the following: [¶] (1) A statement of
the contingency fee rate . . . . [¶] . . . [¶] (3) A statement as to what extent, if any,
the client could be required to pay any compensation to the attorney for related
matters that arise out of their relationship not covered by their contingency fee
contract. . . .” “Failure to comply with any provision of this section renders the


                                            9
agreement voidable at the option of the plaintiff, and the attorney shall thereupon
be entitled to collect a reasonable fee.” (Bus. & Prof. Code, § 6147, subd. (b).)
      Appellant contends the retainer agreement was voidable under Business and
Professions Code section 6147, as (1) the agreement did not set forth the specific
numbers needed to compute the contingency fee, such as the gross recovery
amount; (2) the details of the gross recovery amount and other figures were set
forth in e-mails not signed by both parties; and (3) the agreement lacked a “related
matters” provision -- which was necessary as the retainer agreement purportedly
involved only age-related discrimination claims and appellant recovered on an
employment severance agreement. We disagree.
      Business and Professions Code section 6147 requires only the contingency
fee rate be specified, and the retainer agreement here specified that rate.
Interpreting the statute to require that all factors needed to compute the final
contingency fee be specified is contrary to the plain language of the statute.
Moreover, appellant’s interpretation would lead to the absurd result that
contingency fee agreements would always be voidable, as the exact amount of the
fee is contingent on factors not known until final resolution of the matter. For
example, here, the amount of the contingency fee was a percentage of the gross
recovery, an amount that could not be determined until appellant’s former
employer agreed to settle the matter for a specific sum. Similarly, Business and
Professions Code section 6147 does not require that the e-mails detailing the gross
recovery amount and severance amount be signed by both parties, as those
amounts are not contingency fee rates.
      Finally, no “related matters” provision was required, as any legal work
related to the employment severance agreement was covered by the contingency
fee contract. (Bus. & Prof. Code, § 6147, subd. (b).) The retainer agreement


                                          10
provided that respondent was retained to represent appellant on any claim “arising
out of [his] employment termination.” A claim based on an employment severance
agreement falls within that contractual language. In short, the retainer agreement
was not voidable under Business and Professions Code section 6147.
      D.     The Trial Court Properly Considered Parol Evidence in Interpreting
the Retainer Agreement.
      Appellant next contends the trial court erred in admitting parol evidence to
interpret the retainer agreement’s contingency fee provision. “The decision
whether to admit parol evidence involves a two-step process. First, the court
provisionally receives (without actually admitting) all credible evidence
concerning the parties’ intentions to determine ‘ambiguity,’ i.e., whether the
language is ‘reasonably susceptible’ to the interpretation urged by a party. If in
light of the extrinsic evidence the court decides the language is ‘reasonably
susceptible’ to the interpretation urged, the extrinsic evidence is then admitted to
aid in the second step -- interpreting the contract.” (Winet v. Price (1992)
4 Cal.App.4th 1159, 1165.) Here, the contingency fee provision was reasonably
susceptible to respondent’s interpretation that attorney fees were to be one-third the
amount of gross recovery in excess of $28,360. Thus, the court properly
considered parol evidence in interpreting the contractual provision.
      Citing Alderman v. Hamilton (1988) 205 Cal.App.3d 1033 (Alderman) and
Lane v. Wilkins (1964) 229 Cal.App.2d 315 (Lane), appellant contends that any
ambiguity in the retainer agreement should have been construed against
respondent. Appellant asserts that under this rule of contract interpretation,
respondent would not have been entitled to any fees. We find no error in the trial
court’s interpretation of the contingency fee provision.



                                          11
      In Alderman, the appellate court restated the rule set forth in Civil Code
section 1654 that “[i]n cases of uncertainty not removed by the preceding rules [of
contract interpretation], the language of a contract should be interpreted most
strongly against the party who caused the uncertainty to exist.” (Alderman, supra,
205 Cal.App.3d at p. 1037 [stating that attorney fee agreements are strictly
construed against attorney who drafted the agreement].) One such rule of contract
interpretation is found in Civil Code section 1647, which provides that “[a]
contract may be explained by reference to the circumstances under which it was
made, and the matter to which it relates.” Thus, where extrinsic evidence would
resolve any uncertainty in contractual language, the contingency fee provision
should not be interpreted against respondent. On the other hand, as explained in
Lane, where “little, if any, extrinsic evidence [was] adduced at the trial relating to
alleged ambiguity in the portions of the agreement,” the trial court should apply the
general rule that if there is any ambiguity as to the intent of the parties, the
construction most favorable to the client should be adopted. (Lane, supra,
229 Cal.App.2d at p. 323.) Here, the trial court properly considered parol
evidence, and that evidence established the parties’ intent with respect to the
attorney fee calculation. (See, e.g., Houge v. Ford (1955) 44 Cal.2d 706, 711-712
[rejecting argument that because defendant attorney prepared contingent fee
contract, any possible doubt as to its meaning should be resolved against
defendant; finding that admissible extrinsic evidence resolved any doubt as to
meaning].)
      Finally, appellant contends that it would be unfair to allow respondent to
submit parol evidence in support of its contract interpretation when respondent had
asserted work product privilege with respect to certain evidence requested by
appellant. A review of appellant’s discovery request shows that the evidence was


                                           12
not relevant to the issue of interpreting the contingent fee provision. Appellant
requested any and all notes and/or minutes that respondent took during meetings or
conversations with appellant referring to the potential engagement of the law firm.
Respondent produced two of five identified documents, and asserted that the three
remaining documents were not relevant to the contingency fee provision.
Appellant has not demonstrated otherwise. Moreover, appellant has not shown
how he was prejudiced, as he was free to testify about the contents of the meetings
or telephone conversations. In short, appellant has not shown the trial court erred
in considering parol evidence to interpret the contingency fee provision.
      E.     Mediation Confidentiality did not Preclude the Trial Court from
Considering the Redacted Settlement Agreement in Determining the Attorney Fees.
      Appellant contends the trial court erred in admitting a redacted copy of the
settlement agreement between appellant and his former employer that showed the
settlement amount. He contends the settlement agreement was subject to
mediation confidentiality under Evidence Code section 1119, subdivision (b). That
statutory provision provides that “[n]o writing . . . that is prepared for the purpose
of, in the course of, or pursuant to, a mediation . . . , is admissible or subject to
discovery, and disclosure of the writing shall not be compelled, in any . . . civil
action, . . . in which, pursuant to law, testimony can be compelled to be given.”
      Mediation confidentiality is subject to statutory exceptions set forth in the
Evidence Code. Specifically, Evidence Code section 1122, subdivision (a)
provides that “[a] communication or a writing . . . that is made or prepared for the
purpose of, or in the course of, or pursuant to, a mediation . . . , is not made
inadmissible, or protected from disclosure, by provisions of this chapter if either of
the following conditions is satisfied: [¶] (1) All persons who conduct or otherwise
participate in the mediation expressly agree in writing . . . , to disclosure of the


                                           13
communication, document, or writing.” In addition, Evidence Code section 1123
provides that “[a] written settlement agreement prepared in the course of, or
pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by
provisions of this chapter if the agreement is signed by the settling parties and any
of the following conditions are satisfied: [¶] (a) The agreement provides that it is
admissible or subject to disclosure, or words to that effect. [¶] (b) The agreement
provides that it is enforceable or binding or words to that effect. [¶] (c) All parties
to the agreement expressly agree in writing . . . to its disclosure. . . .”
       Here, the settlement agreement provides that “It is the intent of the Parties,
pursuant to Evidence Code sections 1122(a)(1) and 1123, that all of the terms of
this Settlement Agreement shall be admissible and may be disclosed under seal to a
court of law and shall be enforceable and binding upon them in a court of law.”
Thus, by its own terms, the settlement agreement was admissible in the instant
litigation. The trial court did not err in admitting the redacted copy of the
                        4
settlement agreement.
       F.     The Court did not Err in Awarding Prejudgment Interest.
       Appellant contends the trial court abused its discretion in awarding
prejudgment interest as respondent’s claim was not liquidated. Civil Code section
3287, subdivision (a) provides that a person who is entitled to recover damages
“certain, or capable of being made certain by calculation” is also entitled to recover
prejudgment interest. Here, the amount of fees was capable of being made certain
by calculation. Although appellant disputed the formula used to calculate the fees,
the trial court properly considered extrinsic evidence to determine the formula the

4
      The fact that the settlement agreement was redacted does not suggest
respondent conceded that mediation confidentiality applied. Rather, the agreement
was redacted to remove any irrelevant provisions.

                                            14
parties had agreed to use. Once the correct formula was determined, the fee
amount could be calculated to a legal certainty.
      Appellant’s reliance on Marine Terminals Corp. v. Paceco, Inc. (1983)
145 Cal.App.3d 991 is misplaced. That case states the general principle that
prejudgment “[i]nterest is not allowable as a matter of right where the amount of
damages is unliquidated and depends upon the jury’s resolution of conflicting
evidence.” (Id. at p. 995, italics omitted.) However, the amount of damages here
was liquidated, i.e., certain or capable of being made certain by calculation.
      Appellant further contends that respondent was not entitled to prejudgment
interest under rule 4-100(B)(4) of the Rules of Professional Conduct because it
delayed four months in filing the instant complaint. Appellant did not raise this
argument below and thus it is forfeited. (See Piscitelli v. Friedenberg (2001)
87 Cal.App.4th 953, 983 [“As a general rule, a new theory may not be presented
for the first time on appeal unless it raises only a question of law and can be
decided based on undisputed facts.”].) To the extent the argument is cognizable,
appellant has not demonstrated that a delay of four months before filing the instant
complaint was unreasonable.
      Finally, appellant contends there was no substantial evidence to support the
starting date (August 22, 2012) to calculate prejudgment interest. Civil Code
section 3287, subdivision (a) provides that prejudgment interest accrues on the day
that damages are certain or capable of being made certain. (See, e.g., Polster, Inc.
v. Swing (1985) 164 Cal.App.3d 427, 434 [“Prejudgment interest runs from the
date when damages are certain or are capable of being calculated to a certainty.”].)
Respondent contends, and appellant does not dispute, that Blumberg testified that
on August 22, 2012, appellant sent the e-mail disputing the fees as calculated by
respondent. That fee calculation was the same calculation the trial court


                                          15
determined was intended by the parties. Thus, there was substantial evidence in
the record to support the starting date to calculate prejudgment interest. (In re
Frederick G. (1979) 96 Cal.App.3d 353, 366 [“The testimony of a single witness is
sufficient to uphold a judgment.”].) In sum, appellant has not demonstrated the
trial court abused its discretion in awarding prejudgment interest.
      G.     The Court did not Err in Entering Judgment for Respondent on
Appellant’s Cross-complaint.
      Section 631.8 provides that, “After a party has completed his presentation of
evidence in a trial by the court, the other party . . . may move for a judgment. The
court as trier of the facts shall weigh the evidence and may render a judgment in
favor of the moving party . . . . Such motion may also be made and granted as to
any cross-complaint.” Appellant contends the trial court erred in granting
respondent’s motion for judgment on his cross-complaint pursuant to section
631.8, as the arbitration clause in the retainer agreement was enforceable. We
disagree.
      We have independently reviewed the arbitration clause in the retainer
agreement, and conclude that it was not effective without appellant’s initials. As
noted, the arbitration clause provides that “[b]y initialing below,
Client . . . voluntarily agrees to binding arbitration.” The court found, and
appellant does not challenge, that he failed to initial the arbitration clause. Thus,
the cross-complaint stated no viable cause of action. Accordingly, the trial court
did not err in granting judgment in favor of respondent and against appellant on the
cross-complaint.




                                          16
                               DISPOSITION
     The judgment is affirmed. Respondent is entitled to its costs on appeal.



     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                            MANELLA, J.



We concur:




EPSTEIN, P. J.




COLLINS, J.




                                       17
