Filed 8/7/13 Buckley v. De Jong CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                   DIVISION ONE

                                           STATE OF CALIFORNIA



JAMES BUCKLEY,                                                       D059316

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. 37-2009-00092288-
                                                                     CU-BC-NC)
ARIE DE JONG,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, David G.

Brown, Judge. Reversed.



         Niddrie, Fish & Addams, David A. Niddrie; White and Bright, Leigh A. Rayner

and Randolph W. Ortlieb for Defendant and Appellant.

         Law Offices of Neal A. Markowitz, Neal A. Markowitz; Lepine Law Group, Amy

J. Lepine, Charles L. Pratt and Sara A. Simmons for Plaintiff and Respondent.

         In this breach of contract case, we reverse the $2.8 million verdict entered in favor

of the plaintiff. The record demonstrates that jurors, who believed the plaintiff was not
entitled to any damages, compromised their view of the evidence in order to reach a

verdict rather than because they agreed the plaintiff established the right to a substantial

recovery. Our conclusion is based on the responses the trial court gave the jury to

questions they had during the course of deliberation, affidavits of jurors with respect to

what took place during deliberation, and the fact that the amount awarded was

substantially less than the principal damages theory advanced by the plaintiff at trial.

       We note the plaintiff's theories of both liability and damages were based in

substantial part on his contention that the defendant failed to properly compensate him

for sums he claimed were due on an earlier agreement, which itself was contingent on the

outcome of contracting decisions made by the governing boards of local municipalities.

Arguably, these theories of liability and damages are barred by public policy. Because

this defense was not raised below and because there may be circumstances which relieve

plaintiff from it in whole or in part, we decline to resolve this issue at this juncture.

Rather, on remand, the defendant may raise public policy as a defense to the plaintiff's

claims, and the plaintiff may fully contest the validity and application of the defense.

                                FACTUAL BACKGROUND

       A. The Parties

       Plaintiff and respondent James Buckley has spent a good deal of his working

career as a salesman, first in the restaurant equipment business and then later selling and

servicing commercial waste disposal contracts. In 1988, Buckley became interested in

exploiting the possibility of turning waste into compost and, in particular, a company


                                               2
called Agripost, which was promoting the concept. As a result of his experience both

selling and managing waste disposal contracts and his interest in waste-to-compost

opportunities, Buckley became very familiar with the waste disposal industry and

collected a substantial amount of information about trash collection companies in

Southern California and their franchise agreements with local municipalities.

       Defendant and appellant Arie DeJong has owned and managed a number

businesses in northern San Diego County. In 1976, he purchased a small waste

management company and, over time, operating it as Coast Waste, DeJong built it into a

sizeable enterprise with a fleet of trucks and the only waste transfer station in the north

county area. Between 1976 and 1994, DeJong unsuccessfully attempted to get trash

hauling contracts in Escondido, Poway, Encinitas, and a landfill contract with the cities of

Oceanside, Carlsbad and Escondido.

       B. 1994-1997 Agreements

       In 1994, Buckley contacted DeJong and tried to interest DeJong in participating in

an Agripost trash-to-compost venture. Because Agripost had not been successful,

DeJong declined to invest in the venture.

       However, DeJong was very impressed by all the information Buckley had

collected with respect to the trash collection business in Southern California and, in

September 1994, DeJong enlisted Buckley's assistance in obtaining documents relevant to

the circumstances under which the trash franchise in the City of Poway (Poway) had been

awarded to one of Coast Waste's competitor's, Mashburn Sanitation (Mashburn), in 1991.


                                              3
          Without any agreement as to his compensation and after a great deal of effort on

Buckley's part, Buckley obtained copies of the bids and rate sheets submitted by the

bidders on the 1991 Poway trash franchise. DeJong was pleased with Buckley's success

and asked him to obtain any documentation which would show that Mashburn had acted

unlawfully in obtaining the Poway trash franchise. This task became quite time

consuming and, according to Buckley, led the parties to enter into a partnership

agreement in January 1995. Buckley testified at trial that he and DeJong agreed Buckley

was "to bust -- or to expose that there was some corruption or whatever in Poway on that

bid . . . and if [DeJong] got [the Poway franchise], we'd be partners. That was the sum

total."

          At the time DeJong made this agreement with Buckley, DeJong was also engaged

in efforts to obtain contracts that had been awarded to Mashburn by the cities of Encinitas

and Escondido. DeJong sued Mashburn with respect to Mashburn's successful Encinitas

bid; in Escondido, DeJong sponsored a ballot initiative which would require competitive

bidding on the city's refuse collection franchises. Shortly after Buckley and DeJong

reached their partnership agreement with respect to Buckley's work on the Poway trash

contract, they agreed to expand the agreement to include work DeJong wanted Buckley to

do on the lawsuit against Mashburn and the Escondido initiative. Thus, according to

Buckley, he would become DeJong's partner on any trash contract DeJong obtained from

Poway, Encinitas or Escondido.

          With respect to Poway, Buckley obtained information that showed Mashburn had


                                               4
made unlawful campaign contributions to members of the Poway City Council. This

information led to a Fair Political Practices Commission complaint and fine. Buckley

also initiated litigation against the City of Encinitas and obtained information from the

city about Mashburn's successful bid for the contract there. Finally, Buckley assisted the

campaign consultant DeJong retained to support the Escondido initiative. DeJong paid

Buckley on an hourly basis for the work he did and reimbursed him for his expenses.

       None of DeJong and Buckley's efforts to obtain trash contracts in Poway,

Encinitas or Escondido were successful: DeJong's lawsuit against Mashburn was

dismissed on Mashburn's demurrer, Poway did not reopen its trash contract and the

Escondido trash initiative was rejected by voters.

       In 1997, DeJong sold Coast Waste to U.S.A. Waste Management (U.S.A. Waste).

The sale included a covenant which prevented DeJong from competing in the north

county area for a period of five years. Buckley testified that at some point after the sale,

DeJong told him that DeJong was able to obtain a premium of $10 million on the sale

because of the work Buckley had performed. According to Buckley, DeJong received the

premium because Buckley's work in exposing Mashburn's improprieties increased the

amount Mashburn was willing to pay for Coast Waste and, hence, the amount DeJong

was able to extract from the successful purchaser, U.S.A. Waste. Buckley believed that

under the terms of their partnership agreement, DeJong should have paid him one-half of

the $10 million premium.




                                              5
       C. 2005 Agreement

       After he sold Coast Waste, DeJong maintained contact with Buckley and, in 2005,

again asked Buckley for help. At that time, DeJong was sponsoring a study being

conducted by students at California State University at San Marcos (CSSM). The aim of

the study was to compare the cost of trash collection in municipalities who awarded trash

contracts in an open competitive bidding process with the cost in municipalities, such as

the City of San Marcos (San Marcos), which used a closed process to award trash

contracts. DeJong hoped to use the study to convince the San Marcos City Council to

adopt an open bidding process on its trash contracts.

       DeJong asked Buckley to help the CSSM students with the trash study. Buckley

was very reluctant to help DeJong because he believed DeJong still owed him half of the

$10 million premium DeJong had received on the Coast Waste sale. According to

Buckley, he was also concerned that the effort to convince San Marcos to open its

bidding process would not be successful unless DeJong took a very aggressive approach

and was among, other things, willing to engage in litigation with San Marcos. For his

part, DeJong preferred to take a more "diplomatic" approach and use the CSSM study to

lobby the San Marcos City Council.

       Buckley testified that in light of his concerns about what he believed he was owed

for his previous work and the likelihood DeJong's preferred diplomatic approach would

not be successful, he demanded that, in exchange for Buckley's help, DeJong pay

Buckley $5 million when it became apparent the diplomatic approach had been


                                            6
unsuccessful. According to Buckley, DeJong verbally agreed to his terms; Buckley

testified that the agreement was not put in writing because both DeJong and Buckley had

been subject to harassment and intimidation when contesting the Poway, Encinitas and

Escondido trash contracts.

       For his part, DeJong denied making such an agreement with Buckley and testified

that he only expected to pay Buckley on an hourly basis when the project was complete.

       Buckley worked on the CSSM study and provided approximately 45 hours of

assistance. As Buckley predicted, when the study was complete and presented to the San

Marcos City Council, the city council declined to alter its trash bidding process. When

DeJong told Buckley that the effort had been unsuccessful and asked Buckley to send

him an invoice, Buckley's lawyer responded on his behalf with a demand for the $5

million Buckley believed was due. DeJong did not honor the demand.

                               PROCEDURAL HISTORY

       A. Breach of Contract Causes of Action

       Buckley filed a complaint against DeJong in which he alleged claims for breach of

contract, breach of the covenant of good faith and fair dealing, and quantum meruit. By

way of an amended complaint, Buckley alleged that DeJong's obligation to pay him $5

million arose when San Marcos refused to adopt a competitive bidding process for trash

contracts.

       At trial, Buckley dismissed all his causes of action except for two breach of

contract causes of action.


                                             7
          B. Verdict

          According to juror affidavits filed in support of DeJong's later motion for a new

trial, the jury had considerable difficulty reaching a verdict. While the majority of jurors

wanted to award Buckley $5 million, a minority did not want to award him any damages.

One juror suggested that they compromise, and this suggestion led to a series of questions

posed by the jury to the trial court. The jury first asked the trial court whether it was

bound by Buckley's demand for $5 million; the trial court responded by telling the jury to

reread its instruction as to the elements of a cause of action for breach of contract.

          The foreman then conducted a series of votes on diminishing amounts of damages

in an effort to find a figure which would garner nine votes. The foreman reached $2.5

million and instead of gaining votes began losing them. The jury then sent the trial court

a second question which expressly asked the trial court whether the $5 million in

damages Buckley requested was "negotiable" or "does it have to be $5 million or

nothing?" The trial court responded by telling the jury that it did not have to find $5

million in damages or nothing but that any amount had to be agreed to by nine of the

jurors.

          The jury then deliberated for an additional three hours and sent the trial court a

note stating that "[W]e are at an impasse. 7 to 5. Require further instruction from the

court." The trial court referred the jury to its previous answer and stated: "Please

continue to deliberate." After reading the trial court's answer, the jury foreman then

began a series of votes starting at $2.5 million and increasing the amount of damages


                                                8
with each unsuccessful vote. When the amount reached $2.8 million, nine jurors voted in

the affirmative, and the jury promptly returned a verdict in that amount without any

further deliberation.

         C. Postrial Proceedings

         Following the verdict, DeJong moved for a new trial on, among other grounds, his

contention that the jury had returned an improper compromise verdict. DeJong pointed

out that at trial, Buckley had repeatedly argued that under the terms of his agreement with

DeJong, he was owed $5 million.

         Relying on testimony the founder of Agripost had given to the effect that it had

cost him between $2 and $3 million to open a trash-to-compost facility, Buckley argued

that the jury could have relied on that testimony to determine that he had suffered $2.8

million in damages. The trial court agreed with Buckley and denied the motion for new

trial.

         DeJong filed a timely notice of appeal.

                                       DISCUSSION

                                              I

         In his principal arguments on appeal, DeJong argues that the jury's verdict was an

improper compromise or, in the alternative, a chance verdict. We agree that the jury

improperly compromised in reaching its verdict and accordingly reverse the judgment.

         A. Standard of Review

         Contrary to Buckley's contention, when as here, a motion for new trial is made on


                                              9
the grounds a verdict was the product of jury misconduct, we review the trial court's

ruling de novo. "'In reviewing the denial of a motion for new trial based on jury

misconduct, the appellate court "has a constitutional obligation [citation] to review the

entire record, including the evidence, and to determine independently whether the act of

misconduct, if it occurred, prevented the complaining party from having a fair trial."

[Citations.]' [Citation.]" (Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction

Co. (1991) 234 Cal.App.3d 1724, 1745, italics added; see also People v. Cumpian (1991)

1 Cal.App.4th 307, 311.)

       B. Juror Affidavits

       In the trial court, Buckley objected to the juror affidavits DeJong submitted on the

grounds they improperly purported to reflect the mental processes of the jurors. (See

Evid. Code, § 1150; In re Stankewitz (1985) 40 Cal.3d 391, 398.) Arguably, because

Buckley never obtained a ruling on his objections, the objections are deemed overruled

and waived on appeal. (See Demps v. San Francisco Housing Authority (2007) 149

Cal.App.4th 564, 576.) However, in the context of motions for summary judgment, the

harsh waiver rule has been severely criticized and recently abandoned. (See Reid v.

Google, Inc. (2010) 50 Cal.4th 512, 532.) Accordingly, we decline to follow it here and

instead reach the merits of Buckley objections.

       "The Legislature has declared that evidence of certain facts is admissible to

impeach a verdict: 'Upon an inquiry as to the validity of a verdict, any otherwise

admissible evidence may be received as to statements made, or conduct, conditions, or


                                             10
events occurring, either within or without the jury room, of such a character as is likely

to have influenced the verdict improperly.' (Evid. Code, § 1150, subd. (a), italics added.)

It is settled that jurors are competent to prove 'objective facts' under this provision.

[Citation.] By contrast, the Legislature has declared evidence of certain other facts to be

inadmissible for this purpose: 'No evidence is admissible to show the effect of such

statement, conduct, condition, or event upon a juror either in influencing him to assent to

or dissent from the verdict or concerning the mental processes by which it was

determined.' (Evid. Code, § 1150, subd. (a), italics added.) Thus, jurors may testify to

'overt acts' -- that is, such statements, conduct, conditions, or events as are 'open to sight,

hearing, and the other senses and thus subject to corroboration' -- but may not testify to

'the subjective reasoning processes of the individual juror . . . .' [Citation.]

       "Among the overt acts that are admissible and to which jurors are competent to

testify are statements. [Evidence Code] [s]ection 1150, subdivision (a), expressly allows

proof of 'statements made . . . either within or without the jury room . . . .'" (In re

Stankewitz, supra, 40 Cal.3d at pp. 397-398; see also People v. Pierce (1979) 24 Cal.3d

199, 208.)

       Here, the bulk of the statements set forth in DeJong's juror affidavits are

admissible under Evidence Code section 1150 in that they set forth statements made by

the foreman and other jurors during deliberations and the voting procedure adopted by

the jury foreman following the trial court's responses to the jury's questions. However,

some portions of the affidavits are objectionable in that they purport to set forth the


                                              11
reasoning employed by two jurors who initially were unwilling to award substantial

damages and later voted to award Buckley $2.8 million. We have not relied on those

objectionable statements in determining whether the jury reached an improper

compromise verdict.

       C. Compromise Verdicts

       1. Legal Principles

       Where the record shows a verdict was probably the result of prejudice, sympathy

or compromise, or that for some other reason the liability issue was not actually

determined by the jury, the verdict must be set aside in its entirety. (8 Witkin, Cal.

Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 106 et seq., pp. 700-701.)

The question of whether a verdict was the result of improper compromise usually arises

in cases where the damages awarded are inadequate as a matter of law, and the trial court

must determine whether a new trial on the issue of liability, as well as damages, must be

ordered. In such instances, where in addition to the inadequacy of damages other

circumstances show the probability of a compromise verdict, a new trial on both liability

and damages is required. (See Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 841;

Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1346; Wilson v. R.D. Werner

Co. (1980) 108 Cal.App.3d 878, 883.)

       Indicators of a compromise verdict are: (1) a close verdict; (2) jury requests for

readback and jury questions; (3) jury indecision whether the plaintiff should recover a

certain amount or nothing; (4) a subsequent jury election to straddle and award a


                                             12
compromise recovery in a lesser amount than that to which the plaintiff would be entitled

if the plaintiff prevailed; and (5) lengthy deliberations. (Leipert v. Honold (1952) 39

Cal.2d 462, 468-470; Lauren H. v. Kannappan, supra, 96 Cal.App.4th at p. 841.)

       2. Legal Analysis

       Although the circumstances here do not fit entirely within the rubric of cases

where a compromise verdict has been found, in that the $2.8 million verdict the jury

returned here is not so small and out of proportion to the evidence of damages as to be

inadequate as a matter of law, in other material respects, the record establishes a

convincing case the verdict represents an improper compromise by jurors who, although

they did not believe Buckley was entitled to any recovery, felt compelled to reach a

verdict that would have the support of nine members of the jury.

       With respect to the amount of damages awarded, it is significant that, as DeJong

points out, although the amount is substantial, there is no evidentiary or theoretical

support for a $2.8 million award. In this regard, we note that during her rebuttal

argument to the jury, Buckley's counsel told the jury there was no evidence to support

any claim for any amount other than Buckley's demand for $5 million: "So what money?

The only number we have heard is $5 million. That's the only number." In discussing a

response to one of the jury's question, Buckley's counsel again reiterated the limited

nature of the damages evidence Buckley presented: "That's what I said in my rebuttal:

There was no evidence to support any claim for any amount other than the 5 million." In

arguing against providing the jury with any response which permitted a lesser amount of


                                             13
damages, Buckley's counsel emphasized that Buckley had dismissed his quantum meruit

claim precisely to avoid a smaller verdict.

       The only theory which arguably supports a $2.8 million verdict is one which was

never presented to the jury: the proposition DeJong did not promise to pay Buckley $5

million but instead promised to pay Buckley an amount sufficient to start a trash-to-

compost facility. Although there is considerable evidence Buckley planned to use the

money he believed he would be receiving from DeJong to start a trash-to-compost

facility, Buckley never testified that the amount due on his agreement with DeJong was

tied to the amount needed to go into the trash-to-compost business. Rather, Buckley

consistently testified, and his counsel urged, that DeJong simply promised to pay Buckley

$5 million.

       Thus, although, as we have indicated, this is not a case where the damages are

inadequate as a matter of law, the evidence presented by Buckley and the theory of

liability he argued are at such odds with the result reached by the jury, a similar inference

of improper compromise arises.

       In addition to the inference of compromise which arises from the sharp disparity

between the verdict on the one hand and the evidence and argument on the other, the

manner in which the jury deliberated provides important additional and powerful indicia

of a compromise verdict. The jury's questions to the trial court are unmistakable

evidence that the jurors were sharply divided over whether Buckley should recover a

certain amount or nothing. As we have noted, the record shows that after asking two


                                              14
questions about whether they were bound to award $5 million or nothing and being

advised that they could award a lesser amount, the jury nonetheless reported that, after

still further deliberation, they had reached a seven to five impasse. Thus, the record

shows that very shortly before the jury returned its verdict, it was clearly divided between

those who wanted to award nothing and those who wanted to award substantial damages.

(See Lauren H. v. Kannappan, supra, 96 Cal.App.4th at p. 841.)

       The inference of compromise is reinforced by the fact the jury deliberated for nine

hours over three days as well as by the closeness of the eventual nine to three verdict.

(See Leipert v. Honold, supra, 39 Cal.2d at pp. 468-470.) The voting process used by the

jury foreman also strongly suggests some of the assenting jurors compromised their

views of liability. There is no dispute in the record that, as reported by the juror

affidavits submitted by DeJong, the jury foreman attempted to achieve a verdict first by

having the jurors vote on diminishing damages amounts and then, when that was

unsuccessful, conducting votes on increasing amounts of damages. In a case where the

evidence and theory advanced by the plaintiff permit a range of damages and there is no

sharp difference among the jurors as to liability, such a voting process might suggest an

honest attempt to achieve a principled consensus. Here, however, where there was no

evidence or theory that suggested a range of damages, and there was clear evidence the

jury was at an impasse between those who wanted to award nothing and those who

wanted to award substantial damages, the voting method adopted by the jury foreman

strongly suggests that the eventual verdict was the result of improper bargaining rather


                                             15
than any conviction based on what jurors believed the evidence supported.

       The sequence of events before and after the jury notified the trial court it was at an

impasse is also of some import. After the jury reported that, notwithstanding several

hours of deliberations and two earlier questions of the trial court, it was still at an

impasse, rather than declaring a mistrial and releasing the jurors, the trial court responded

by instructing the jury to continue deliberating. Shortly thereafter and, by virtue of

voting on an increasing level of damages, a verdict was returned. This sequence of

events gives rise to a clear inference the verdict was a compromise driven by a desire to

complete deliberations, rather than by any conviction the amount awarded was proper.

       In sum, based on our independent review of the record, we are convinced the jury's

verdict was probably the result of improper bargaining or compromise, and the judgment

entered on the verdict must be reversed.1

1       Because the jury's compromise verdict requires that we reverse the judgment and
remand the case for further proceedings, we do not reach the remaining issues DeJong
raises on appeal. In particular, we do not consider DeJong's contention there was no
meeting of the minds with respect to the 2005 agreement. We note that, contrary to
DeJong's argument, there was evidence, in the form of testimony from Buckley, of the
terms of an agreement and DeJong's express assent to those terms. At trial, Buckley
testified that in 2006, DeJong agreed to his terms:
        "Q: I believe you had told us that [DeJong] eventually did agree to your terms,
right?
        "A: Right."
        According to Buckley, DeJong's assent came in a telephone conversation.
Buckley described those terms in the following testimony:
        "Q: If Mr. DeJong's way worked and he was successful and he convinced them,
when was your money due?
        "A: Not until it was presented to the city on the agenda, and it was a resolution
passed stating they would open the city's competition.
        "Q: And if his way did not work, when was your money due?
        "A: As soon as we found out, as soon as it was known that his way would not
                                              16
                                              II

         For the guidance of the parties and the trial court on remand, we briefly discuss an

issue which arose on appeal.

         As we have discussed, according to Buckley, under his 1994-1997 agreements

with DeJong, he was to receive a partnership interest in any successful trash collection

franchise DeJong obtained in Poway, Encinitas or Escondido. Buckley described his

agreement with respect to Poway as follows: "If we broke up the City of Poway and Arie

was to get the bid, we would become equal partners and he would put up the money for

the franchise." This description of the nature of his agreement with DeJong gave rise to

questions we posed to the parties, to wit: 1) was Buckley's work with respect to Poway,

Encinitas and Escondido contingent on DeJong being awarded trash contracts by those

cities; and 2) would such a contingent agreement violate public policy. (See Crocker v.

United States (1916) 240 U.S. 74, 79-80; Gov. Code, § 86205.)

         There is little doubt that, as described by Buckley, his compensation under the

1994-1997 agreements was contingent on DeJong being awarded the respective

municipal trash contracts. Moreover, a very substantial argument can be made that such


work."
         Buckley also testified at his deposition, which was introduced at trial and at trial
itself, that the amount due was $5 million:
         "'[Q]: [Y]ou don't know at which of these locations it was that Mr. DeJong
promised you $5 million, true?
         "'[A]: Correct.'"
         In short, Buckley testified that DeJong expressly agreed he would pay Buckley $5
million if: 1) the San Marcos City Council agreed to open bidding, or 2) it decided it
would not open bidding.
                                              17
an agreement was void as against public policy. The United States Supreme Court

explained the law's unwillingness to enforce such agreements in Providence Tool Co. v.

Norris (1864) 69 U.S. 45: "Agreements for compensation contingent upon success,

suggest the use of sinister and corrupt means for the accomplishment of the end desired.

The law meets the suggestion of evil, and strikes down the contract from its inception.

[¶] There is no real difference in principle between agreements to procure favors from

legislative bodies, and agreements to procure favors in the shape of contracts from the

heads of departments. The introduction of improper elements to control the action of

both, is the direct and inevitable result of all such arrangements." (Id. at p. 55, fn.

omitted.)

       Significantly such agreements are void even if the parties act without any corrupt

motive or intent: "[A]ll [such] agreements for pecuniary considerations to control the

business operations of the Government . . . or the ordinary course of legislation, are void

as against public policy, without reference to the question, whether improper means are

contemplated or used in their execution." (Providence Tool Co. v. Norris, supra, 69 U.S.

at p. 56.)

       At this juncture, we do not believe it is appropriate to resolve the question of

whether the 1994-1997 contracts were void as against public policy. This defense was

not litigated in the trial court and, hence, Buckley did not have the opportunity to fully

contest its application to the 1994-1997 agreements and his claims against DeJong based

on the parties' later 2005 agreement. In this regard, the record here does not permit us to


                                              18
definitively determine whether any public policy defect in the earlier agreements, if it

exists, also effects the later agreement.

       Thus, on remand, DeJong may, along with other defenses, attack Buckley's claims

on public policy grounds, and Buckley may fully contest application of that defense.

                                       DISPOSITION

       The judgment is reversed and remanded. DeJong to recover his costs of appeal.




                                                                      BENKE, Acting P. J.

WE CONCUR:


                    McINTYRE, J.


                    O'ROURKE, J.




                                            19
