Filed 6/29/15 Yee v. Richance HB CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


MARIA L. YEE, as Trustee, etc.,

   Plaintiff, Cross-defendant and                                      G049598
Appellant,
                                                                       (Super. Ct. No. 30-2011-00453370)
         v.
                                                                       OPINION
RICHANCE HB, LLC,

   Defendant, Cross-complainant and
Respondent.



                   Appeal from an order of the Superior Court of Orange County, William M.
Monroe, Judge. Affirmed.
                   Pardes & Stein; Law Offices of Fred S. Pardes and Fred S. Pardes for
Plaintiff, Cross-defendant and Appellant.
                   Wolfe & Wyman and Eric T. Lamhofer for Defendant, Cross-complainant
and Respondent.
                                          *                  *                  *
              In a real property dispute, plaintiff, cross-defendant and appellant Maria
Yee (Yee) challenges a postjudgment order finding that neither she nor defendant, cross-
complainant and respondent Richance HB, LLC (Richance) was the prevailing party for
the purposes of attorney fees. The court did not abuse its discretion in declining to award
attorney fees to either party. We affirm.
                                              I
                                            FACTS
A. Background:
              In 1979, Don Jose Restaurants, Inc. and Fountain Plaza Investments, the
owners of neighboring commercial properties, entered into an easement agreement
(Easement Agreement). The parties agreed that certain portions of their respective
properties would be set aside for parking and that they would exchange reciprocal
easements for that purpose. An exhibit was attached to the Easement Agreement,
showing the designated parking areas. It also showed the locations of existing buildings
on the Fountain Plaza Investments property and the site of a planned restaurant to be built
by Don Jose Restaurants, Inc. on its property. The parties expressed an intention that the
Easement Agreement bind their successors and assigns.
              The property owned by Don Jose Restaurants, Inc. was later acquired by
Kue Sung Lin and certain others (the Lins) and the property owned by Fountain Plaza
Investments was acquired by Yee. The Lins sued Yee over the Easement Agreement (Lin
v. Yee (Super. Ct. Orange County, 2003, No. 02CC03382)) (the Lin Action). In June
2003, the Lins and Yee entered into a stipulated judgment (the 2003 Stipulated
Judgment). They agreed that the Easement Agreement created “a parking easement and
not a use restriction easement and the previous proposed use of a restaurant by [Don Jose
Restaurants, Inc. had] been abandoned.” They further agreed that they each “retain[ed]
the right for reciprocal parking easements subject to approval for potential use of [the
Lins’] interest by the City of Huntington Beach only.”

                                              2
B. Current Lawsuit:
              The property once owned by Don Jose Restaurants, Inc. was eventually
acquired by Richance (the Richance Property). In January 2011, Richance leased its
property to Garcia Juarez Construction (Garcia Juarez) for short-term use as a
construction equipment staging area in connection with an off-site construction project
for the City of Huntington Beach (City).
              In February 2011, Yee filed a lawsuit against the City, Garcia Juarez,
Richance, and others, for inverse condemnation, among other things. She alleged, inter
alia, that she owned certain commercial real property (the Yee Property), adjacent to the
Richance Property. She further alleged that she was the successor-in-interest to Fountain
Plaza Investments under the Easement Agreement and that Richance was the successor-
in-interest to Don Jose Restaurants, Inc. Yee asserted that the easement created
thereunder burdened the Richance Property in favor of the Yee Property. In addition,
Yee claimed the leasing of the Richance Property and the use of it as a staging area
violated both the Easement Agreement and her property rights thereunder.
              In May 2011, Richance filed a cross-complaint against Yee for quiet title,
intentional interference with contract, unfair business practices, trespass, and declaratory
relief. Richance alleged that the Easement Agreement purported to create reciprocal
parking easements over the two properties, but that Yee had never attempted to use the
easement across the Richance Property. It further claimed that Yee had interfered with
Richance’s prior attempts to either lease or sell its property. Richance later dismissed its
causes of action for intentional interference with contract, unfair business practices and
trespass.
              Yee filed a first amended complaint. She alleged therein that, in 2007,
Richance entered into a reciprocal maintenance easement agreement with Robert Clayton
and others (the Claytons), pertaining to property owned by the Claytons (the Clayton
Property) adjacent to, and to the south of, the Richance Property (the Richance/Clayton

                                              3
Agreement). Yee claimed that the Richance/Clayton Agreement permitted the parties to
enter each other’s land and had the effect of imposing new or increased burdens on Yee’s
rights under the Easement Agreement. She also alleged that, in 2007, Richance had made
an irrevocable offer to grant a reciprocal easement over the Richance Property in
exchange for easements across the Clayton Property and yet another property, owned by
the Johnson Family Trust or certain others (the Johnson Property) (the 2007 Irrevocable
Offer). She claimed the purpose of the 2007 Irrevocable Offer was to provide ingress and
egress to and from certain streets. Again, Yee claimed the 2007 Irrevocable Offer
imposed new or increased burdens on her rights under the Easement Agreement.
              Richance filed a first amended cross-complaint against Yee for quiet title,
based on estoppel and adverse possession, and for declaratory relief. Richance again
alleged that Yee had never attempted to use the easement area over the Richance
Property. It also asserted that it had adversely possessed the parking easement area over
the Richance Property since about 2004, when it acquired the property. Through its quiet
title causes of action, Richance sought to extinguish any claim of Yee to the easement
area over the Richance Property. It also sought declaratory relief in the form of a
determination that Yee had no right to control the manner in which it used its property
and that the Easement Agreement had been terminated.
              Richance filed a motion for summary adjudication of certain issues raised
in Yee’s first amended complaint. The court granted the motion in part and denied it in
part.
              The parties stipulated for entry of judgment. The stipulated judgment, filed
September 3, 2013 (the 2013 Stipulated Judgment), provided the Easement Agreement
was enforceable by both Yee and Richance and was subject to the 2003 Stipulated
Judgment, which had been recorded. It further provided that the easement included
reciprocal parking rights, reciprocal rights of ingress and egress, and “a covenant
regarding general siting of permanent structures and open space (the ‘Siting Covenant’).”

                                             4
The 2013 Stipulated Judgment provided that future development would comply with the
Siting Covenant.
               The 2013 Stipulated Judgment further provided that Yee’s request for
declaratory relief to have the Richance/Clayton Agreement declared void was denied
without prejudice to her bringing a future action if she could show that it unduly
burdened her use of the Yee Property or the easement. It also provided that Yee’s request
for declaratory relief to have the 2007 Irrevocable Offer declared void was denied
without prejudice to her bringing a future action if she could show that the it either
compelled a substantial deviation from the Siting Covenant or unduly burdened her use
of the Yee Property or the easement.
               Richance prevailed on Yee’s causes of action against it for breach of
written easement and trespass. However, Yee prevailed against Richance on its cross-
complaint.
               The 2013 Stipulated Judgment provided that the issue of the determination
of the prevailing party under Civil Code section 1717, for the purpose of attorney fees,
would be determined by separate motions. Yee filed an attorney fee motion seeking
$610,289 and a memorandum of costs for $11,361.67. Richance filed an attorney fee
motion seeking $131,695.43 and a memorandum of costs for $10,718.88.
               In its minute order, the court observed: “Plaintiff Yee claims she was the
prevailing party because she obtained a judgment that validated her easement rights.
Defendant Richance claims that it was the prevailing party because it prevailed on the
breach of easement agreement, which vindicated its right to lease its property – its main
litigation objective. . . . [¶] . . . Neither party received the declaratory relief each sought.
Both sides tout their victories and downplay their defeats.” It denied attorney fees to
either party, stating: “Because the result of this litigation was essentially a wash, the
Court will exercise its discretion.” Yee appeals.



                                                5
                                              II
                                       DISCUSSION
A. Civil Code Section 1717:
              The Easement Agreement contained a provision for the award of attorney
fees to the successful party in a lawsuit based thereon.
              Civil Code section 1717, subdivision (a) provides that in any action on a
contract providing for the award of attorney fees to the prevailing party, that party shall
be entitled to reasonable attorney fees. Civil Code section 1717, subdivision (b)(1)
provides that the court shall determine the prevailing party. It further provides that “the
party prevailing on the contract shall be the party who recovered a greater relief in the
action on the contract.”
              “A trial court has broad discretion in determining which party has obtained
greater relief on the contract, and we will not disturb such a determination on appeal
absent a clear abuse of discretion. [Citation.] ‘“‘Discretion is abused when a court
exceeds the bounds of reason or contravenes uncontradicted evidence.’”’ [Citation.] We
are required to uphold a reasonable ruling even if we might not have ruled the same way
and a contrary ruling would also be sustainable. [Citations.]” (In re Tobacco Cases I
(2013) 216 Cal.App.4th 570, 578.)
              “[I]n deciding whether there is a ‘party prevailing on the contract,’ the trial
court is to compare the relief awarded on the contract claim or claims with the parties’
demands on those same claims and their litigation objectives as disclosed by the
pleadings, trial briefs, opening statements, and similar sources. The prevailing party
determination is to be made only upon final resolution of the contract claims and only by
‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in
its contentions.’ [Citation.]” (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.)




                                              6
              “[I]n determining litigation success, courts should respect substance rather
than form, and to this extent should be guided by ‘equitable considerations.’ For
example, a party who is denied direct relief on a claim may nonetheless be found to be a
prevailing party it if is clear that the party has otherwise achieved its main litigation
objective. [Citations.] But when one party obtains a ‘simple, unqualified win’ on the
single contract claim presented by the action, the trial court may not invoke equitable
considerations unrelated to litigation success, such as the parties’ behavior during
settlement negotiations or discovery proceedings, except as expressly authorized by
statute. [Citations.]” (Hsu v. Abbara, supra, 9 Cal.4th at p. 877.)
              Here, neither party obtained a “‘simple, unqualified win.’” (Hsu v. Abbara,
supra, 9 Cal.4th at p. 877.) However, Yee maintains that she obtained both her main
litigation objective and the greater relief. We shall see.


B. Greater Relief:
              In the matter before us, Yee contends the “Court abused its discretion in
failing to properly analyze which party ‘recovered the greater relief.’” Yee claims she
recovered the greater relief and the court erred in ignoring her attorney’s argument that
she had the greater net recovery. She contends her easement over the Richance Property,
which was preserved, was worth about $1 million and the damages for breach, which she
did not recover, were worth only about $42,000. So, as she views it, she “won” about $1
million and “lost” about $42,000. Or, she prevailed on a $1 million claim against
Richance and Richance successfully defended itself against a claim of only $42,000 in
damages.
              In support of her contention about the easement valuation, Yee cites the
declaration of her appraiser, William Hansen, filed concurrently with her motion for
attorney fees. Hansen opined that the Richance Property was worth about $50 per square
foot, or $2,210,000, with the easement restrictions and about $75 per square foot, or

                                               7
$3,315,000, without them. He concluded that the Richance Property would be worth
about $1,105,000 more without the easement restrictions than with them. Hansen viewed
this as the amount Richance would likely pay Yee for a relinquishment of the easement
restrictions, and thus construed the easement over the Richance Property as being a
$1,105,000 asset belonging to Yee.
               Even if we were to assume that Richance would pay to terminate the
easement across its property and that, therefore, it is proper to construe the easement
across the Richance Property as an asset Yee could sell to Richance for $1,105,000, Yee
overlooks the fact that the judgment concomitantly preserved an easement across the Yee
Property in favor of Richance. This is so even though Yee had blocked off the passage
between the two properties with concrete wheel stops. She fails to consider the burden to
her of the right preserved in Richance for its future invitees to make use of the Yee
Property for parking purposes and she makes no mention of the value to Richance of its
easement over the Yee Property. Thus, even dropping the damages claim out of the
picture, we do not agree that Yee scored a $1 million “win” over Richance.
               However, Richance successfully defended itself against a damages claim by
Yee. Attorney Jack Snyder, on behalf of Richance, declared that the lowest settlement
demand from Yee’s counsel was $125,000. However, after the stipulated judgment was
entered, Yee’s attorney, Michael Leifer, described her damages as being about $42,000.
Whether described as a $125,000 claim for breach of the easement or as a $42,000 claim,
the stipulated judgment granted judgment in favor of Richance on that cause of action.
So, Richance scored a “win” on that claim.
               In short, Yee prevailed on her claim the Easement Agreement was
enforceable, so the Richance Property remained burdened with a parking easement, but
so did the Yee Property. And, Richance prevailed on Yee’s claim that it owed her
damages, so Richance paid nothing and Yee received nothing. As the trial court put it,
“the result of this litigation was essentially a wash . . . .”

                                                8
C. Main Litigation Objective:
               (1) Pleadings as evidence of objective—
               Yee also claims she is the prevailing party because she prevailed on her
main litigation objective, whereas Richance lost on its main litigation objective. She
characterizes her main litigation objective as easement preservation and Richance’s main
litigation objective as termination of the Easement Agreement. She says she prevailed in
either case.
               In her first amended complaint, Yee’s first contract-related cause of action
was for breach of the Easement Agreement. She asserted Richance had breached its
contract by interfering with her easement, thereby causing her damage. Yee’s second
contract-related cause of action was for quiet title. She claimed all defendants, including
Richance, claimed adverse interests in her easement over the Richance Property. Yee’s
third contract-related cause of action was for declaratory relief. She sought a declaration
that she continued to own an easement across the Richance Property and that the various
defendants were prohibited from using the Richance Property for uses that conflicted
with the Easement Agreement.
               In its first amended cross-complaint, Richance asserted that the Easement
Agreement was “only a parking easement and [did] not restrict the use” Richance could
make of its own property. It further asserted that, under the terms of the Easement
Agreement, Yee had no rights with respect to the Richance Property before it was
developed. Richance alleged that at no time in the preceding 20 years had Yee “used or
attempted to park cars on” the Richance Property. It further alleged Yee had “erected
‘parking wheel stops’ on the boundary between the two properties which . . . [made] it
physically impossible for cars to access” the Richance Property from the Yee Property.
               Richance sought declaratory relief to the effect that: (1) Yee had no “right
to control what use” Richance made of its property; (2) Yee had no right to use the
Richance Property before it was developed; and (3) the Easement Agreement had been

                                              9
terminated. Richance also requested that the court quiet title to the Richance Property,
based on estoppel and/or adverse possession, such that Yee would have no continuing
right to claim an easement interest in it. Of course, Richance also sought to defend itself
against Yee’s claim for damages for breach of easement.
              (2) Additional evidence of objective—
                            (a) Richance’s main litigation objective
              In addressing the parties’ main litigation objectives, Yee starts off by
claiming “Richance belatedly recanted its main litigation objective” and “wrongfully
attempts to conceal its main litigation objective.” In support of these assertions, she cites
the first amended complaint the Lins filed against Yee in the Lin Action and the 2003
Stipulated Judgment filed in that case. These record references do not support her
characterization of the actions of Richance.
                            (b) Yee’s main litigation objective
              As additional evidence of her main litigation objective, Yee cites several
letters. The first is a letter dated December 13, 2011 from her counsel, Attorney Leifer,
to counsel for Garcia Juarez. That letter, as Yee concedes, was written after the short-
term Garcia Juarez lease had ended and Garcia Juarez had vacated the premises. Yee
offered to settle the litigation with Garcia Juarez for $40,000. Nothing in that letter
provides an indication that Yee’s main litigation objective was to preserve her parking
easement across the Richance Property.
              In addressing whether she met her main litigation objective, Yee also
mentions that she recovered $20,000 in settling with the City and Garcia Juarez. She
says the “recovery is for the same measure of damages potentially recoverable under the
breach of Easement claim.” In support of that assertion, Yee cites the declaration of
Attorney Leifer. He represented that the settlement monies were paid in exchange for
Yee’s dismissal of her causes of action for nuisance, trespass and inverse condemnation.
He explained that Yee had been unable to rent out certain tenant space while Garcia

                                               10
Juarez was using the Richance Property and that she had increased cleaning costs due to
dust and dirt from construction activities.
              However, these damages were not caused by the inability of Yee’s
customers to park their cars on the Richance Property. Indeed, Yee conceded that the use
of the Richance Property for parking purposes, before that property was developed, was
unnecessary. Not only that, but as the trial court observed, Yee “herself appear[ed] to
have violated the Easement by permitting concrete wheel stops to exist along the entirety
of the common boundary line between the respective properties.” The court further
observed that photographs plainly showed the wheel stops impeding vehicular
movement.
              Moreover, as the trial court noted, “it is important to draw a careful
distinction between the nuisance cause of action (wherein activities on the servient parcel
caused dust, smoke and noise to migrate onto [Yee’s] property) and the breach-of-
Easement claim (wherein plaintiff must show unreasonable interference with use of the
Easement plus entitlement to relief from diminished value of her own property or loss of
the benefit intended by the Easement).”1 In short, Yee’s recovery of $20,000 in
settlement with the City and Garcia Juarez on her causes of action for nuisance, trespass
and inverse condemnation is not evidence of her having achieved her main litigation
objective with respect to the contract claims on which she bases a claim of prevailing
party status. (Hsu v. Abbara, supra, 9 Cal.4th at p. 876 [prevailing party determination
based on contract claims].)




1             As an aside, the court questioned Yee’s ability to prove she had been
unable to lease her tenant space because of the activities of Garcia Juarez on the Richance
Property, as opposed to “the economy, poor management, supply/demand, time of year,
location building appearance, signage, or a host of other factors.” It further observed Yee
had not shown “that enthusiasm peaked and vacancies filled once Garcia [Juarez] packed
up and left.”

                                              11
              Yee also cites an exchange of letters among counsel in February 2012.
Attorney Leifer, on behalf of Yee, wrote to Attorney Eric Lamhofer, on behalf of
Richance. Attorney Leifer expressed concern that the Richance/Clayton Agreement and
the 2007 Irrevocable Offer could be construed as diminishing Yee’s parking easement
across the Richance Property.
              Attorney Lamhofer replied that it was inconceivable how either the
Richance/Clayton Agreement or the 2007 Irrevocable Offer could be so construed. He
further asserted that, from the date Richance purchased its property in 2004, Yee “[had]
made every possible effort to frustrate and thwart Richance’s right to use, develop or
sell” its property. Attorney Lamhofer quoted the 2003 Stipulated Judgment wherein the
Easement Agreement was declared to be “a parking easement and not a use restriction
easement . . . .” (Italics added.) He stated Richance was willing to negotiate with Yee to
resolve disputed issues, but that it would not agree to give Yee the right to exercise “veto
power” over the use to which Richance put its property.
              Indeed, Yee herself cites the portion of her complaint wherein she alleged
the Easement Agreement provided reciprocal parking easements and “addresse[d] certain
land controls . . . .” She maintained her position about “land controls” even though the
2003 Stipulated Judgment provided that the contemplated use of the Richance Property
for a restaurant had been abandoned.
              While Yee nonetheless insists her main litigation objective was to preserve
the Easement Agreement, Richance argues the evidence belies her assertion. It claims
her main objective was to restrict the use to which the Richance Property could be put. In
support of this position, Richance cites the declaration of one of its owners, Andy Hsu,
the declaration of one of its prospective tenants, David Cheng, and the complaint filed by
the Lins in the Lin Action.




                                             12
              In his declaration, Hsu stated the Richance Property was an undeveloped
dirt lot when he purchased it and it remained an undeveloped dirt lot. He declared that,
from the time he purchased the lot in November 2004, “Yee’s parcel has had along its
southern border contiguous to my property a series of concrete wheel stops for parked
cars, which run the entire length of Ms. Yee’s asphalt parking area to the eastern border
of her property and encompass the entire length of my parcel. These wheel stops
effectively prevent the driving of automobiles onto my vacant dirt lot from Yee’s
property.” Hsu further declared that, separation of the properties by Yee’s wheel stops
notwithstanding, Yee had repeatedly complained to him that the Easement Agreement
prohibited him from leasing out his property, even to Christmas tree vendors. He also
indicated that she had successfully thwarted a lease to Cheng and had filed suit after
Richance leased its property to Garcia Juarez.
              In his declaration, Cheng stated that he, as the owner of Accord
Engineering, Inc., had been interested in leasing the Richance Property “for the
temporary storage of construction materials and equipment.” He met with Hsu at the
Richance Property on the morning of September 18, 2007 to discuss the matter. Shortly
after Hsu left, Yee came over and spoke to Cheng and his job superintendent. According
to Cheng, “Mrs. Yee was confrontational and threatening to us. She stated that she would
not allow my company to use Richance’s property because it was within her rights and
our proposed activity on the property would de-value her property. Mrs. Yee was mad,
upset, and repeatedly threatened to sue us if we leased the property for our intended
purpose.”
              Indeed, in their first amended complaint against Yee, the Lins alleged a
controversy between her and them based on Yee’s contention that the Easement
Agreement restricted their “right to develop their property to a [restaurant] only” and
their contrary contention the Easement Agreement imposed no such limitation. The Lins
sought a court determination that the Easement Agreement did not restrict their right to

                                            13
develop their property for restaurant purposes only. The 2003 Stipulated Judgment, as
previously noted, decreed that the Easement Agreement “[was] a parking easement and
not a use restriction easement and the previously proposed use of a [restaurant] . . . [had]
been abandoned.”
              We must agree that, given Yee’s stance towards Hsu, Cheng and the Lins,
and her use of wheel stops to block the passage of vehicular traffic between her property
and the Richance Property, there is ample evidence to undermine Yee’s assertion that her
main litigation objective was to ensure the enforceability of the Easement Agreement.
Moreover, we observe Yee’s first contract-related cause of action was for damages for
breach of the Easement Agreement and the first evidence she cited in support of her
characterization of her main litigation objective was evidence of a claim for damages.


D. Conclusion:
              “‘“[T]he trial court ‘“is given wide discretion in determining which party
has prevailed on its cause(s) of action. Such a determination will not be disturbed on
appeal absent a clear abuse of discretion.”’ [Citation.]” [Citation.] Furthermore, the trial
court has the “power to determine that neither party prevailed. Requiring a determination
for one party or the other in every case would encourage absurd results for if the court
determines that neither party actually prevailed it would be unreasonable to award
attorney fees.” [Citations.]’ [Citation.]” (Roden v. AmerisourceBergen Corp. (2010)
186 Cal.App.4th 620, 663.)
              Yee obtained a stipulated judgment that the Easement Agreement remained
enforceable, but obtained neither damages nor a right to control the use of the Richance
Property. Richance obtained a stipulated judgment that it was not liable for damages, but
did not obtain a declaration that the Easement Agreement was unenforceable. We cannot
say the court exceeded the bounds of reason, or abused its discretion, in concluding the
result was a wash. (In re Tobacco Cases I, supra, 216 Cal.App.4th at p. 578.)

                                             14
E. Driving Up Fees:
              In a four-page argument, Yee claims the trial court committed reversible
error in failing to find that Richance drove up her litigation costs. She provides almost no
record references in support of her assertion that Richance drove up costs, and the record
references she does provide do not appear to furnish the requisite support. For example,
she cites the 2013 Stipulation for Judgment, which she and Richance both signed, as
evidence that Richance was driving up costs. She explains: “In stipulating to a
judgment, [Richance] reserved its ability to continue litigating with an appeal.” This is a
curious position to take, inasmuch as the stipulation permitted an appeal only as to
attorney fees and costs and she was the one who filed the appeal.
              Yee’s only citation to legal authority is contained in a solitary sentence that
reads: “Other than an invalid Offer to Compromise made under California Code of Civil
Procedure § 998 . . . , Richance made no monetary offer to settle this matter.” To the
extent Yee means to argue that Richance’s omission to make more than one offer to
compromise is evidence that it was driving up costs, she does not explain why this bore
upon the court’s prevailing party determination.
              Yee has provided no legal authority to support the implied argument that
because Richance drove up the costs of litigation, the court abused its discretion in
determining that there was no prevailing party. Her argument is waived. (Roden v.
AmerisourceBergen Corp., supra, 186 Cal.App.4th at pp. 648-649.)


F. Reasonableness of Fees Incurred:
              As her last argument, Yee asserts “the trial court committed prejudicial and
reversible error by failing to find that Mrs. Yee should be paid her reasonable attorneys’
fees.” (Capitalization and underscoring omitted.) Under that topic heading, Yee
provides four pages of argument as to why her fees were reasonable.



                                             15
              We do not address whether her fees were reasonable, inasmuch as we have
determined that the court did not err in finding there was no prevailing party in this
matter.
                                             III
                                      DISPOSITION
              The order is affirmed. Richance shall recover its costs on appeal.




                                                   MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




                                             16
