Filed 7/21/15 Smith Lillis Pitha LLP v. Colburn CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


SMITH LILLIS PITHA LLP,                                               B255321

         Plaintiff and Respondent,                                    (Los Angeles County
                                                                      Super. Ct. No. BC481084)
         v.

PAMELA COLBURN,

         Defendant and Appellant.



         APPEAL from judgment of the Superior Court of Los Angeles County,
Malcolm Mackey, Judge. Affirmed.


         Law Office of Kent M. Bridwell and Kent M. Bridwell for Defendant and
Appellant.


         Lillis Pitha and Martin L. Pitha for Plaintiff and Respondent.




                                            _____________________
                                    INTRODUCTION
       Defendant and Appellant Pamela Colburn appeals from a judgment resulting from
the trial court granting Plaintiff and Respondent Smith Lillis Pitha LLP’s (the Firm)
motion for summary adjudication and denying Colburn’s request for leave to file a cross-
complaint. We affirm summary adjudication because the Firm met its burden by proving
that Colburn breached her contract with the Firm by failing to pay for the work the Firm
performed for her. Colburn failed to make competent objections to the evidence
supporting summary adjudication below and failed to proffer evidence to show that a
triable issue of material fact exists as to a cause of action or a defense. We also conclude
that the court did not err in correcting its order granting summary adjudication to
accurately reflect the principal and interest owed by Colburn. Lastly, the court properly
denied leave to file the cross-complaint, as all of Colburn’s causes of action were time-
barred.
                   FACTS AND PROCEDURAL BACKGROUND
       Colburn was a defendant in two lawsuits, which we refer to as Milbank and
Maranon. Colburn hired the Firm to represent her in the Maranon matter in March 2009,
and in the Milbank matter in July 2009. In March 2010, the trial court issued a judgment
against Colburn in the Maranon matter in the amount of $998,941.87. Colburn then
substituted the Firm out of the Maranon litigation in March 2010, and out of the Milbank
litigation in April 2010. Throughout the Firm’s representation of Colburn and thereafter,
the Firm sent her invoices with detailed statements of amounts owed for the Firm’s
services. Colburn partially paid the invoices and in March 2010, at the conclusion of the
Firm’s representation of Colburn in the Maranon matter, she owed the Firm
approximately $220,000 for the Firm’s work in the Maranon matter.




                                             2
       In March 2012, the Firm brought the present lawsuit for breach of contract and
common counts to recover debts owed by Colburn to the Firm for its work on both
Milbank and Maranon cases. Colburn answered in August 2012. In February 2013,
Colburn moved for leave to amend her answer and file a cross-complaint, alleging breach
of contract premised on malpractice and breach of fiduciary duty. The trial court denied
her request because the statute of limitations had run on her proposed cross-complaint.
       The Firm moved for summary adjudication on its breach of contract and common
count claims with respect to the Maranon matter. The motion was based on a declaration
by a partner of the Firm, the engagement agreement between the Firm and Colburn that
was signed by Colburn, and the Firm’s invoices sent to Colburn. Colburn’s opposition to
the motion focused on objections to the Firm’s evidence; Colburn did not provide
evidence in opposition. The Court found that the Firm proved a prima facie case for
breach of contract and common counts on summary adjudication and Colburn failed to
show that there was a triable issue of material fact. The court issued an order granting
summary adjudication in favor of the Firm, but the order contained an erroneous
calculation of the interest on the damages. The court subsequently corrected its interest
calculation and issued a corrected ruling on the Firm’s motion for summary adjudication.
The Firm moved to dismiss its claims related to the Milbank litigation and the Court
entered judgment against Colburn. We discuss the facts in further detail below as
necessary.
                                      DISCUSSION
I.     Summary Adjudication was Proper
       Colburn asserts that the court erred in granting summary adjudication because the
Firm failed to produce sufficient evidence to prove the elements of its causes of action for
breach of contract. Colburn specifically argues that the evidence establishing the Firm’s
prima facie case is inadmissible. Colburn also asserts that the Firm failed to make a
prima facie case for their common count claim and failed to disprove Colburn’s
affirmative defenses.



                                             3
       “We review the grant of summary adjudication de novo.” (King v. Wu (2013)
218 Cal.App.4th 1211, 1213.) “In performing this de novo review, we view the evidence
in the light most favorable to the opposing party and strictly construe the evidence of the
moving party, and resolve any evidentiary doubts in favor of the opposing party.”
(Dowell v. Biosense Webster, Inc. (2009) 179 Cal.App.4th 564, 574.) A motion for
summary adjudication is granted where the motion entirely disposes of a cause of action.
(Code Civ. Proc.,1 § 437c, subd. (f)(1).) “A plaintiff ... has met his or her burden of
showing that there is no defense to a cause of action if that party has proved each element
of the cause of action entitling the party to judgment on that cause of action. Once the
plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or
cross-defendant to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto. The defendant or cross-defendant may not rely upon
the mere allegations or denials of its pleadings to show that a triable issue of material fact
exists but, instead, shall set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto.” (§ 437c, subd. (p)(1).)
“ ‘Summary adjudication of a cause of action is appropriate only if there is no triable
issue of material fact as to that cause of action and the moving party is entitled to
judgment on the cause of action as a matter of law. [Citation.]’ ” (Burch v. Superior
Court (2014) 223 Cal.App.4th 1411, 1416.)
       a.     The Breach of Contract Claim
       The Firm had the burden of proving the four elements of a cause of action for
breach of contract: “(1) the existence of the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the
plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Through
partner James Smith’s declaration and documentary evidence, the Firm established each
of these elements.


1
      All subsequent statutory references are to the Code of Civil Procedure unless
otherwise indicated.


                                               4
              1.     Existence of a Contract
       In support of the motion for summary adjudication, Smith, a partner at the Firm,
attested that Colburn hired the Firm to represent her in the Maranon case. Attached to his
declaration was a copy of the March 2009 engagement agreement between the Firm and
Colburn, signed by Colburn. Smith verified in his declaration that this was a true and
correct copy of the engagement agreement. That agreement specifically stated that the
Firm was to represent Colburn in the litigation with Maranon, stated the scope of the
engagement, and set forth the Firm’s hourly fees and cost allocation. Smith also attached
billing entries to his declaration that show Smith was involved in representing Colburn.
The entries document Smith’s interaction with Colburn that led to the engagement
agreement, stating that Smith had a “[l]engthy meeting with . . . Colburn discussing
Maranon and related litigation” and that Smith conferred with Colburn regarding the
Firm’s role in substituting as her new counsel in the Maranon case. This evidence proved
the existence of the contract between Colburn and the Firm.
       Colburn asserts on appeal that Smith lacked the requisite personal knowledge to
assert facts within his declaration. Colburn failed to argue that Smith lacked personal
knowledge in her opposing papers or at the hearing. Pursuant to Code of Civil Procedure
section 437c, subdivisions (b)(5), (c) and (d), evidentiary objections not made in writing
before the hearing or in person at the hearing are deemed waived. (See Cole v. Town of
Los Gatos (2012) 205 Cal.App.4th 749, 764 [“[F]ailure to make a coherent argument in
support of the objection should be viewed as an abandonment of that objection.”]; Collin
v. CalPortland Company (2014) 228 Cal.App.4th 582, 598 [failure to object to the
movant’s use of a special interrogatory answer or deposition testimony summary
judgment papers or at the hearing on the motions forfeits evidentiary objections].)
“In determining whether a triable issue was raised or dispelled, we ... must consider any
evidence to which no objection, or an unsound objection, was made.” (McCaskey v.
California State Automobile Assn. (2010) 189 Cal.App.4th 947, 957, citing Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 534 (Reid).)



                                               5
       Colburn therefore waived this objection. The trial court properly concluded that
the Firm met its burden as to this element.
                2.    The Firm’s Performance
       Smith also attested that the Firm represented Colburn in both the Maranon and
Milbank matters and prepared invoices reflecting the Firm’s services to Colburn. Smith
attached the invoices to his declaration and attested that they were true and correct copies
of the invoices. The invoices, spanning 140 pages, provided a detailed account of
services rendered to Colburn. Smith also stated that “[w]e delivered these invoices for
our work to Colburn, in addition to regular discussions concerning handling of [the
Maranon and Milbank] lawsuits.” This evidence showed that the Firm performed its
portion of the contract by representing Colburn in the Maranon and Milbank matters.
       Colburn asserts that Smith failed to demonstrate that he had personal knowledge to
attest to the work the Firm employees (other than Smith himself) performed for
Defendant or to the invoices accompanying his declaration. Colburn argues that the
invoices are inadmissible hearsay documents. Colburn also disputes the reasonableness
of the Firm’s billing and the Firm’s charging of expenses for travel. Yet, Colburn failed
to raise these objections below. Because Colburn failed to object to admission of the
invoices and failed to make a competent objection to Smith’s declaration on these issues,
we conclude that the Firm provided sufficient evidence to prove its performance under
the contract.
                3.    Colburn’s Breach and Resulting Damages.
       Lastly, Smith attested that Colburn owed the Firm more than $220,000 before the
addition of interest and other costs for work performed by the Firm on Colburn’s behalf
in 2009 and 2010 in connection with the Maranon lawsuit. The invoices document these
charges in detail. Moreover, after removing the Firm and obtaining new counsel,
Colburn testified under oath in a deposition in the Maranon litigation that she owed the
firm about $300,000. This evidence shows that Colburn breached the contract by failing
to pay for the Firm’s services and that the Firm’s damages amounted to about $220,000
prior to the calculation of interest and other costs.


                                               6
       Colburn argues that her testimony regarding her debt to the Firm is inadmissible
because Smith’s verification of Colburn’s prior deposition testimony was not based on
personal knowledge as Smith was not present at that deposition, nor was Smith involved
in that litigation. Defendant asserts that because she was not specifically identified on the
cover page of the deposition transcript as a party in the case she had given testimony in,
“it is impossible to determine which Evidence Code provision would apply as between
section 1291 and section 1292, and there are different requirements for admissibility
under each.” We note that Colburn’s testimony is not necessary to prove her breach and
the damages, as the unpaid invoices and Smith’s declaration satisfy those elements.
Furthermore, Colburn failed to competently make these objections below and thus
waived them. We shall not set aside the court’s findings based on the erroneous
admission of evidence unless, “[t]here appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated as to make clear the
specific ground of the objection or motion.” (Evidence Code § 353(a).) The Firm thus
proved the final elements of breach and damages.
       Since all of the elements of the breach of contract claim were proven by the Firm,
and Colburn failed to produce evidence showing there was a triable issue of material fact
as to an element of breach of contract or a defense, we affirm the court’s summary
adjudication as to the breach of contract claim.
       b.     Waiver of Evidentiary Objections
       The focus of this part of the appeal is the evidentiary objections to the Firm’s
evidence provided in support of its motion for summary adjudication. Our affirmance of
summary adjudication is premised on Colburn’s waiver of those objections. In her reply
brief, Colburn argues that pursuant to Rincon v. Burbank Unified School Dist. (1986)
178 Cal.App.3d 949, 954-955 (Rincon), a party cannot waive objections to inadmissible
evidence. This is a mischaracterization of the current state of the summary adjudication
and summary judgment law. We note that the rule referenced by Colburn, that there can
be no waiver of the right to object to incompetent evidence, was stated in Witchell v.
De Korne (1986) 179 Cal.App.3d 965 (Witchell) and Zuckerman v. Pacific Savings Bank


                                             7
(1986) 187 Cal.App.3d 1394 (Zuckerman). Zuckerman relied on Witchell for the
proposition that “there can be no waiver of the right to object to matters inadmissible by
virtue of incompetency . . . .” (Zuckerman, at p. 1404.) Witchell observed that even
under certain amendments to the summary judgment statute, the moving party’s burden
“to make a proper showing” was not eased because “the Legislature retained the
mandatory language regarding the manner in which the motion was to be supported.”
(Witchell, at p. 974, italic omitted.) In 1990, the Legislature overruled these principles, as
clarified by the Supreme Court in Reid, supra, 50 Cal.4th at pp. 529-530.
       In Reid, supra, 50 Cal.4th at pages 529-530, the Supreme Court explained that in
1990, the Legislature changed the section 437c, subdivision (b) “to its current form,
providing that, ‘Evidentiary objections not made at the hearing shall be deemed waived.’
(§ 437c, subd. (b), italics added, as amended by Stats. 1990, ch. 1561, § 2, pp. 7330-
7331, enacting Sen. Bill No. 2594 (1989–1990 Reg. Sess.) as amended May 7, 1990.)”
In Reid, the Supreme Court stated that one purpose of the 1990 amendment “was to
‘overturn[ ]’ two Court of Appeal cases holding that the competency of witnesses could
be challenged for the first time on appeal. [Citations.]” (Reid, at p. 530.) Providing
numerous citations to legislative history, the Court stated that this objective was
evidenced by the Legislature’s express declaration that: “ ‘It is the intent of this
legislation to provide that all objections to the form and substance of the moving and
opposing papers shall be first made in the trial court and not on appeal by the parties or
by the appellate court and to expressly overrule the rules stated in [Witchell] and
[Zuckerman].’ [Citation.] The overall purpose of the bill was ‘to make the summary
judgment procedure more efficient and to reduce the opportunity for abuse of the
procedure.’ [Citations.]” (Reid, at p. 530.)
       Thus, the line of case law stating that waiver of evidentiary objections does not
apply to inadmissible evidence, which was applied by Rincon, supra, 178 Cal.App3d at
pp. 954-955, was abrogated by legislative amendment in 1990, as expressly recognized
by the Supreme Court. We therefore do not address any evidentiary objections not raised



                                               8
below by Colburn. As described above, Colburn failed to provide competent objections
to the Firm’s evidence and thus, we affirm summary adjudication.
        c.     The Common Count Claim
        Defendant argues that the Firm failed to present any evidence in the motion for
summary adjudication as to the common count. “A common count is not a specific cause
of action, however; rather, it is a simplified form of pleading normally used to aver the
existence of various forms of monetary indebtedness, including that arising from an
alleged duty to make restitution under an assumpsit theory. [Citations.] When a common
count is used as an alternative way of seeking the same recovery demanded in a specific
cause of action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable. [Citations.]” (McBride v. Boughton (2004)
123 Cal.App.4th 379, 394–395.) Meaning, the common count “must stand or fall on the
viability of plaintiffs’ other claims.” (Berryman v. Merit Property Management, Inc.
(2007) 152 Cal.App.4th 1544, 1560.) “The essential allegations of a common count ‘are
(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold,
work done, etc., and (3) nonpayment.’” (Allen v. Powell (1967) 248 Cal.App.2d 502,
510.)
        The evidence discussed above not only proves the elements of a breach of contract
claim but also proves the common count claim which is simply an alternative way of
seeking the same damages as sought under the contract claim. The invoices and the
declaration establish the Firm’s work performed for Colburn, and Colburn’s indebtedness
and nonpayment. We therefore affirm the court’s summary adjudication as to the
common count claim as well.
        d.     Defendant’s Affirmative Defenses
        Colburn asserts that reversal is required because the Firm failed to refute
Colburn’s affirmative defenses. Yet, the Firm was not required to disprove the
affirmative defenses in order to meet its burden on summary adjudication. “Summary
judgment law in California ‘no longer requires a plaintiff moving for summary judgment
to disprove any defense asserted by the defendant as well as prove each element of his


                                              9
own cause of action.’ [Citation.] It is sufficient for a plaintiff to prove each element of
the cause of action.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1321;
section 437c, subdivision (p)(1), [“A plaintiff or cross-complainant has met his or her
burden of showing that there is no defense to a cause of action if that party has proved
each element of the cause of action entitling the party to judgment on that cause of action.
Once the plaintiff or cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or more material facts
exists as to that cause of action or a defense thereto.”].) “A prima facie showing is one
that is sufficient to support the position of the party in question. [Citation.] No more is
called for.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.)
       The Firm never carried the burden to disprove Colburn’s affirmative defenses.
After the Firm made its prima facie case, the burden shifted to Colburn to produce
evidence of a triable issue of one or more material facts regarding one of the elements of
the causes of action, or show that she had a viable defense. (Aguilar v. Atlantic Richfield
Co., supra, 25 Cal.4th at p. 849.) Colburn did neither, and thus summary adjudication
was proper.
II.    Corrected Order
       Colburn asserts that the court erred in issuing an order that corrected the amount of
damages awarded to the Firm in the court’s initial ruling on the Firm’s motion for
summary adjudication. The original order stated that “[a]s to damages, the [c]ourt grants
the [Firm] damages in the amount of $253,482.67, which includes the interest. The
[Firm] is ordered to give a breakdown between the principal and interest.” This amount
appears to have come from an October 2011 invoice prepared by the Firm. This invoice
was issued two years prior to the motion for summary adjudication and excluded two
years worth of interest that accumulated prior to summary adjudication. Per the court’s
request, the Firm itemized the principal and interest owed. Based on these updated
numbers and the breakdown provided to the court, the Firm requested the court enter
judgment based on the accurate sum owed to the Firm. The court then issued a corrected
order and rendered judgment, awarding the Firm $299,792.63 in damages with an


                                             10
additional $59.95 per day thereafter from November 27, 2013. This was based on a
principal of $219,698.59 and an interest rate of 0.833% for a period of 1,336 days.
       On appeal, Colburn asserts that “[i]n effect, what the court did was allow [the
Firm] to submit additional evidence in support of summary adjudication after a ruling on
the motion had been made.” (Italics omitted.) We disagree. No additional evidence
contributed to the court’s corrected order. The $219,698.59 principal was based on the
March 31, 2010 invoice (submitted in support of summary adjudication) as March 2010
was the last month the Firm represented Colburn. Colburn’s engagement agreement with
the Firm, which was also provided in support of summary adjudication, provided the
0.833% interest rate. Lastly, the days were calculated from the date of the invoice to the
date of the motion for summary adjudication hearing. In responding to the court’s
request for an accounting of the principal and interest, the Firm did not assert any new
substantive arguments or new evidence regarding the underlying claim.
       Furthermore, the court’s corrected order is consistent with the “court’s authority to
reconsider its prior interim rulings on its own motion.” (Le Francois v. Goel (2005)
35 Cal.4th 1094, 1105.) We therefore affirm.
III.   The Court Properly Denied Leave to File the Cross-Complaint as It Was Time-
Barred
       Colburn argues that the court erred in denying her leave to file a cross-complaint.2
When a defendant, who fails to timely file a cross-complaint, applies to the court for
leave to file a cross-complaint, “[t]he court, after notice to the adverse party, shall grant,
upon such terms as may be just to the parties, leave to . . . to file the cross-
complaint . . . if the party who failed to plead the cause acted in good faith.” (Code Civ.


2
       We note that on appeal, Colburn states that this was a motion for leave to file an
amended answer and cross-complaint. Yet, the parties only provide analysis of the
request for leave to file the cross-complaint. We therefore only address this aspect of
Colburn’s motion on appeal. (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645,
649 [On appeal, “the party asserting trial court error may not ... rest on the bare assertion
of error but must present argument and legal authority on each point raised. [Citation.]”].)


                                               11
Proc., § 426.50.) “The provision in section 426.50 relating to ‘good faith’ does allow
trial courts a ‘modicum of discretion’ in allowing amendments to cross-complaints.
[Citation.] Nonetheless, what constitutes ‘good faith’ must be determined in conformity
with the liberality conferred upon the trial courts by the section and by prior law.
[Citation.] ‘[T]his principle of liberality requires that a strong showing of bad faith be
made in order to support a denial of the right to file a cross-complaint under this section.’
[Citation.]” (Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.)
       At issue is whether Colburn acted in good faith when seeking leave to file the
cross-complaint. On February 8, 2013, Colburn filed a motion for leave to file a cross-
complaint for breach of contract, breach of fiduciary duty, rescission and restitution.
Colburn’s claims were based on legal malpractice. Her cross-complaint alleged that the
Firm “breached the terms [of] its agreement(s) by violating the Rules of Professional
Conduct of the State Bar of California, contrary to the express terms of its agreement(s),”
breached the contract by improperly using the retainer and trust account monies,
breached the contract by filing a notice of motion to be relieved as counsel with false or
privileged statements, violated its fiduciary duty as legal counsel to Colburn, and failed to
explain the retainer contract to Colburn. In its written decision denying leave to file
Colburn’s proposed cross-complaint, the court concluded that Colburn acted in “bad faith
in alleging claims barred by the Statute of Limitations.” We agree that each cause of
action was barred by the one-year statute of limitations for legal malpractice claims.
       “In all cases other than actual fraud, whether the theory of liability is based on the
breach of an oral or written contract, a tort, or a breach of a fiduciary duty, the one-year
statutory period applies.” (Levin v. Graham & James (1995) 37 Cal.App.4th 798, 805;
Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 430
[“attorney-client fee disputes and legal malpractice claims fall within the same statute of
limitations, Code of Civil Procedure section 340.6.”]; Stoll v. Superior Court (1992)
9 Cal.App.4th 1362, 1368 [One-year limitation period for legal malpractice, rather than
four-year “catch-all” limitations period, applied to client’s claim against attorney for
breach of fiduciary duties.].) Pursuant to section 340.6(a), “[a]n action against an


                                             12
attorney for a wrongful act or omission, other than for actual fraud, arising in the
performance of professional services shall be commenced within one year after the
plaintiff discovers, or through the use of reasonable diligence should have discovered, the
facts constituting the wrongful act or omission, or four years from the date of the
wrongful act or omission, whichever occurs first.”
       Here, the Firm began representing Colburn in March 2009 in the Maranon matter,
and in July 2009 in the Milbank matter. A year later, the trial court issued a judgment
against Colburn in the Maranon matter in the amount of $998,941.87. Colburn then
substituted the Firm out of the Maranon litigation in March 2010, and out of the Milbank
litigation in April 2010. In addition, on January 31, 2011, Colburn’s then-attorney
phoned Smith to request that the Firm enter into a tolling agreement for any claims
Colburn may have against the Firm. Smith attested in a declaration attached to the Firm’s
opposition to the motion for leave to file the cross-complaint, that “[d]uring the phone
call, [Colburn’s attorney] made it clear that he had spoken with his client about the tolling
agreement and the basis for such an agreement prior to contacting [Smith].” The Firm
did not agree to the tolling agreement. Smith documented this conversation shortly after
the phone call in an email to two partners in his firm. During the phone conversation,
Colburn’s attorney divulged that Colburn had thought she might have claims against the
Firm and had requested the attorney contact the Firm regarding a tolling agreement.
       This evidence demonstrates that Colburn may have had notice of her malpractice
claims as early as March 2010, when judgment was entered against her in the Maranon
matter, but Colburn certainly was aware of her claims against the Firm by January 2011,
based on her request for a tolling agreement. Colburn nonetheless waited two years to
file the cross-complaint. We therefore conclude that her malpractice claims were barred
by the one-year statute of limitations.
       The court properly denied her request for leave to file the cross-complaint, as it
was time-barred.




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                                    DISPOSITION
      The judgment and orders are affirmed. Plaintiff and Respondent Smith Lillis Pitha
LLP is awarded costs on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KITCHING, Acting P. J.

I concur:




                    ALDRICH, J.




                    EGERTON, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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