Opinion
C085820
10-03-2018
Adoption of Z. W., a Minor. A. L., Appellant, v. A. B. et al., Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 185358)
Z. W. (minor) has been in the custody of D. W. and P. W., who seek to adopt him (collectively adoptive parents), since he was released from the hospital following his birth. According to minor's biological father, A. B. (father), he and minor's biological mother, A. L. (mother), selected adoptive parents prior to minor's birth and agreed to the adoption, and father relinquished his parental rights; mother claims she did not participate in the selection of adoptive parents, did not agree to the adoption, and did not relinquish her parental rights.
We question the actions of the adoption agency in placing minor with adoptive parents without a valid relinquishment of parental rights from mother; however, that concern falls beyond the scope of this appeal.
When minor was five months old, mother filed a petition to establish her parental relationship with minor. Adoptive parents subsequently filed two petitions to free minor from mother's custody and control under Family Code sections 7822 and 7827 respectively (petitions). Adoptive parents' action was joined with mother's action.
All further section references are to the Family Code unless otherwise specified.
Father did not oppose the petitions; he supported them.
After a bench trial on the petitions, the trial court denied adoptive parents' petition under section 7822, finding they had failed to show by clear and convincing evidence mother intended to abandon minor. The trial court, however, granted adoptive parents' petition under section 7827, finding they had established by clear and convincing evidence the two elements required under the statute; that is, mother was mentally disabled and her condition would likely remain into the foreseeable future.
Mother appeals, arguing there was insufficient evidence to support the trial court's findings as to both elements under section 7827. We affirm.
SECTION 7827A petitioner may seek to free a minor from the custody and control of a parent "where the child is one whose parent or parents are mentally disabled and are likely to remain so in the foreseeable future." (§ 7827, subd. (b).) "Mentally disabled" means "that a parent or parents suffer a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately." (§ 7827, subd. (a).) The evidence of two specifically credentialed experts must support the findings under this section. (§ 7827, subd. (c).) The court also has discretion to call other experts, as specified. (§ 7827, subd. (c).) The trial court must find clear and convincing evidence of the facts necessary under section 7827 to declare a minor free from the custody and control of his or her parent. (In re Marriage of E. & Stephen P. (2013) 213 Cal.App.4th 983, 989.)
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only the evidence pertinent to the section 7827 decision.
I
Expert Reports
The trial court appointed two experts to evaluate mother's mental status as required by section 7827 -- Reid McKellar, a clinical psychologist, and Kent Caruso, a licensed clinical forensic psychologist. The experts submitted reports to the court in advance of trial.
A
McKellar Report
Mother was seven months pregnant with her second child on the two dates of testing. The first interview and testing appointment was face-to-face; the next was telephonic. Mother said she was not on medication at the time of the evaluation, but a doctor had prescribed her "psychotropic medication up until the past few months" to treat her " 'Anxiety and A.D.H.D.' " She also said she was prescribed a psycho stimulant and a benzodiazepine. She denied any history of alcohol or substance abuse.
During the face-to-face interview, McKellar noted mother exhibited a lack of energy, flat affect, a processing style suggestive of negative symptoms of schizophrenia, and restricted range of facial expression. She also exhibited "some signs of anosognosia, which is a profound lack of insight often associated with psychotic disorders" and she used denial as a primary defense. There were no signs of emotion; "[m]ost astonishingly, even when discussing the loss of her infant son[, mother's] demeanor was nonchalant and lacking in any degree of outrage of emotional distress. In addition, when [he] inquired about [mother's] pregnancy, [mother] responded as if [he] had asked [her] a mundane, impersonal question." Her "affect, mood and response style was similar during [the] follow up telephone interview."
Mother's background showed she was hospitalized in February 2016, where she was held "under the criteria for Grave Disability." According to those hospital records, mother "had a prior psychiatric hospitalization after she stopped taking her psychotropic medication" and "a prior history of Schizophrenia, with a history of auditory hallucinations and transmissions." The records further showed mother had a history of marijuana abuse. She was discharged with a diagnosis of schizophrenia, unspecified. Mother also told McKellar she was treated by a different psychiatrist and had a lengthy psychiatric hospitalization in Utah; however, mother never provided him with those records as agreed.
McKellar concluded mother "presents with numerous parenting risk factors." "[A]lthough [he] was only able to review the records from one of [mother's] psychiatric hospitalizations, the information was quite useful as behavioral observations, over the span of more than ten days, were highly consistent with [his] observations."
McKellar explained: "[Mother] clearly has a history of psychosis, and she has reported several, fairly long term psychiatric hospitalizations, (modern hospitalizations are typically a few days or less due to managed care restrictions). In addition, records strong[ly] suggest a history of substance abuse, and [her] self-reported history suggests medication seeking (especially given the hospital notations regarding the use of stimulant medication). [¶] During the evaluation process, [she] reported a history that was markedly inconsistent with the available records, and her testing profiles were invalid due to [her] markedly defensive testing [sic] taking style.
"[Mother's] defensiveness was not due to a lack of intelligence, as she is an intelligent young woman. Rather, observational data, testing data and collateral records suggest that [she] is both consciously defensive, suggesting the potential presence of character pathology, and she has a lack of insight (anosognosia) associated with the presence of a psychotic disorder.
"Of grave concern is that, rather than presenting as a woman with a psychiatric history who is now stable and able to reflect on her past, [she] presented as a defensive woman [with] little to no personal insight. Thus, the risk factors related to [her] mental illness are extremely high because she is either unable, unwilling or both unable and unwilling to accept her disorder and thus obtain appropriate treatment.
"During the evaluation process, [she] exhibited numerous negative symptoms of Schizophrenia including poverty of speech, a restricted range of emotions, avolition, low hedonic capacity, slow processing speed and inattention to social input. [¶] . . . [¶] Of note is that hospital records and [her] self report (unexplained decline in functioning at onset of adolescence) suggests a course of symptoms consistent with the early onset of Schizophrenia.
"In sum, [mother] presents as a woman with a serious mental illness, and likely co-morbid substance abuse disorder. [Her] profound lack of insight and/or unwillingness to be honest about herself, her mental illness and demonstrated lack of judgment serve as significant parenting risk factors."
B
Caruso Report
Mother was also seven months pregnant at the time of her face-to-face assessment with Caruso. Caruso observed mother's "affect was very stable, actually too stable, and thus rather inappropriate." He described her affect as "flat and unrevealing" and explained "[t]here were times that a normal individual, especially a mother who had lost custody of an infant, would have or should have been crying or sobbing, yelling or cursing, definitely outwardly expressing feelings of frustration and anger. None of these feelings or emotions were ever in any way evident in [mother]. She would, after an hour or so into the interview, occasionally smile or even laugh a little when it was appropriate to do so, but that was the extent of it." Mother further "seemed to be wholly lacking in personal and psychological insight."
Her history indicated she started seeing a psychiatrist at the age of 17 and was hospitalized for psychiatric reasons multiple times. Caruso found "it rather significant that, according to hospital notes, [mother] often refused to take what [Caruso] would consider more appropriate medications such as mood stabilizers and/or antipsychotic drugs, asking for [others] instead."
In Caruso's opinion: "[W]e are looking at a young woman who, on the surface, should have been at an entirely different place in her life. She is highly intelligent, she is very attractive, she was exposed to the right cultural and educational opportunities, and she grew up in what many people would consider to be a safe-quality community environment. Instead, [mother] was exhibiting signs of anxiety and depression at age 17, she dropped out of school in the middle of her sophomore year, [and] she has been occupationally unstable and unsuccessful . . . . At this point, as well, [she] has had at least three inpatient psychiatric hospitalizations . . . and it would appear as though she might have become dependent upon a combination of . . . drugs.
"The obvious question that would arise in any clinician's mind is why? After 49 years in this field, training early on as a pediatric and family psychologist, I am left to look in only two directions. One of those directions involves what would be the family secret that nobody talks about. The other direction would suggest biophysiological etiology, a chemical imbalance, leading to early onset symptoms of schizophrenia. It began with [mother's] inability to adjust to a normal academic environment, despite her high [intellectual quality]; and her active avoidance of any educational or occupational settings that might contribute to even normal amounts of stress. Coping with normal daily routines and responsibilities, pressures and demands, would have been overwhelming to [mother]; and consequently, very likely given the wrong diagnoses, she was treated for depression and anxiety instead of the much more severe disorder. . . .
"[¶] . . . [¶]
"[S]he has not been able to function in an adequately self-sufficient, self-reliant, or self-autonomous manner. She is predisposed, instead, toward feelings of depression and anxiety, especially the latter, which in her case contribute to her tendency to emotionally withdraw, inappropriately self[-]medicate, and worse of all to disconnect from reality.
"The combination of my 3 hours and 15 minute meeting with [mother], including the various test results, revealed a woman who tends to deal with life's problems in an overly simplified, highly naïve, and somewhat concrete manner. Social relationship skill and facility are childlike. She is lacking in social sensibility, and her social intuitional skills, which involve the perception, comprehension, and understanding of that which occurs within her visual social interactional fields of experience, are at pre-adolescent levels. . . .
"With too much demand placed upon her, when she becomes excessively anxious and unable to experience a needed sense of environmental and emotional control and mastery, [mother] can then becomes [sic] psychotic. In this regard, it would be very interesting to see some of those admission and discharge notes from other hospitals, especially the one or ones in Utah.
"What I find interesting, and of course what concerns me greatly, is that despite all the interventions [she] has had with various mental health treatment and delivery systems, she remains extraordinarily uninsightful. She is one of the least psychologically sophisticated individuals I have ever encountered; that is if she is not actually suffering from some form of schizophrenia or a severe personality disorder. She presents as having no clue, no idea whatsoever, about why she has lived such a highly unstable and problematic lifestyle over the past 10 years. She is as imperceptive in this regard as she has been with respect to her ability to understand the meaning of events occurring within her general social milieu. These symptoms, in combination with [her] emotional flatness, and what has been described in terms of her childlike impulsivity, lead me to believe that [she] suffers from a severe mental illness and disability. This is not something that recently arose, something that could be attributed to a post-partum psychosis.
"Various symptoms have been gradually and insidiously expanding and increasing since [her] mid-teens, so that now and outside a setting where she is being taken care of by an appropriate significant other, I would have to consider her as being a wholly and pervasively dysfunctional adult. Prognosis at best would [be] guarded. However when considering [her] levels of denial about her problems and/or her complete inability to understand and appreciate the severity of these problems, combined with her observed resistance to taking any appropriate psychoactive medications, I am left to opine that her prognosis is poor rather than guarded.
"Furthermore, it is my opinion that someone suffering from what is now a severe and chronic mental disability, such as [she] has been exhibiting, would in all likelihood be wholly unable to meet and/or provide the cognitive, social, emotional, and general developmental needs of an infant or a toddler."
II
The Trial
A
Motion In Limine And Stipulation Regarding Experts' Reports
At the commencement of trial, mother made a motion in limine to exclude the psychologists' reports on grounds of hearsay because adoptive parents had not subpoenaed them to testify at trial. Mother's counsel argued mother had a right to cross-examine the psychologists regarding their findings and opinions and counsel insisted on doing so in person rather than telephonically. The reason for the request was because mother had given birth to and was raising her other child and counsel wanted the psychologists to observe mother with that child in the courtroom. Mother's counsel believed this to be important because the psychologists' "opinion[s] ha[d] to do with her future ability to be a parent" and they did not have the opportunity to observe mother with her other child prior to issuing their reports. She explained: "there's certain demeanor stuff that happens between [a] mother and a young child, and that's what they are saying that she doesn't have the ability to have."
The judge responded: "I doubt that they are going to use any of that to change their opinion. I mean, they have to have some sort of setting for which to evaluate her ability to parent," and "the court setting is not a great place to observe being a parent . . . ." The judge, however, agreed with mother that it was adoptive parents' burden to make the psychologists available for cross-examination. Adoptive parents proposed a stipulated offer of proof instead; and the parties agreed to a stipulation, which the court accepted.
The stipulation provides: "1) Drs[.] Caruso and McKellar did not consider any hospital records other than those records from Restpadd from January 2016; [¶] 2) At the time the doctors evaluated [mother], she did not suffer from symptoms of hallucinations, or delusions; [¶] 3) At the time the doctors evaluated [mother], she did not display any types of behavior documented at Restpadd such as disorganized thoughts, or poor memory/impulse control; [¶] 4) [Mother] did tell the doctors that she suffered from anxiety and ADHD; [¶] 5) The doctors were not aware that [mother] had been going through court proceedings in an attempt to get her son back for 6 months; [¶] 6) The doctors did not talk with any family members to get an accurate history of [mother's] mannerisms when they wrote their reports; [¶] 7) The doctors did not observe [mother] with any children during their evaluations; [¶] [and] 8) The doctors speculated that [mother] would not be able to meet and/or provide for the needs of an infant or toddler."
B
Testimony
Adoptive parents and father testified in support of the petitions. Mother, her aunt, and mother's prior attorney testified in opposition. Adoptive parents' testimony and mother's prior attorney's testimony did not provide evidence pertinent to this appeal.
Father testified he and mother dated for approximately two years before minor was born. Mother moved in with father because mother was concerned her parents were poisoning her. When they began living together, father noticed unusual behavior by mother, such as she would not eat or sleep, and she would enter catatonic phases where she was unresponsive. The unusual behavior was infrequent in the beginning, but grew worse when mother stopped going to counseling and taking her medication. When mother was pregnant with minor, father worried for the health of the baby because mother lost significant weight and would not eat. Mother also fainted over two dozen times before she was pregnant and a few times while she was pregnant.
Mother's aunt testified mother lived with her for approximately six months when mother was 17 years old. During that time, mother helped to feed and change aunt's children and played with them. She also babysat them on occasion. Aunt further testified she had recently observed mother feeding, comforting, and changing mother's other child on two occasions, and that mother was aware of the child's schedule and was attentive to him.
Mother testified she was living with her parents and raising her other child, taking him to his medical appointments, and taking care of his needs. She recalled her interviews with Caruso and McKellar and confirmed she did not show a lot of emotion during the interviews. She explained emotion "didn't seem relevant" at the time. While she recalled having fainting spells, she believed it was toward the end of her pregnancy and she did not view it as a cause for concern. Mother said that, at the time of trial, she was taking medication as "needed" for her attention deficit disorder and anxiety. The medication was prescribed by "a doctor" not a psychologist or a psychiatrist. Mother said that when she needs her medication and does not take it, she "just kind of deal[s] with it."
Although mother was aware of McKellar's and Caruso's reports and their opinions regarding her mental health, she did not seek any professional treatment or opinion in response and did not mention their reports to her regular doctor. Mother believed the psychologists' opinions were speculative and that they had misdiagnosed her. She said her prior hospitalization for mental health reasons was because she "had been taking medication and then stopped taking it, and [she] went through a withdrawal."
C
The Decision
The trial court quoted and discussed various portions of McKellar's and Caruso's reports, including their opinions. The trial court then said: "Having considered the expert opinions of both Dr. McKellar and Dr. Caruso, the Court finds that [mother] suffers from [a] mental health disability that renders her unable to care for and control the child. Furthermore, the Court finds that this mental health disability is a severe and sustained condition over a period of time and is likely to remain in the foreseeable future." Mother appeals.
DISCUSSION
Father joined in adoptive parents' brief.
I
Standard Of Review
The parties agree, as do we, that our standard of review is substantial evidence. The parties disagree, however, on how we should treat the clear and convincing evidence standard applied in the trial court. We " 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find [that freeing minor from a parent's custody and control is appropriate based on clear and convincing evidence].' " (In re Angelia P. (1981) 28 Cal.3d 908, 924 [termination of parental rights under former Civil Code section 232], superseded by statute as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229-230.)
II
Substantial Evidence Supports The Finding That Mother Had A Mental Disorder
Rendering Her Unable To Care For And Control Minor
Mother argues there was insufficient evidence to support the finding that she had a mental disorder rendering her unable to care for and control minor because the psychologists' reports were "stale" and unreliable for failing to account for the change in circumstances at the time of trial, i.e., she had given birth to and was taking appropriate care of her other child, and she "was receiving professional help for her mental health issues and was taking medication." Adoptive parents assert mother forfeited this contention because she failed to object to the psychologists' reports, did not request an updated assessment, and elected not to cross-examine the psychologists at trial; and, if the argument is not forfeited, substantial evidence supports the trial court's finding. Mother responds she did not forfeit her challenge to the reports because she "had no duty, whatsoever, to present any evidence, as the burden of proof was entirely upon [adoptive parents]."
We do not address adoptive parents' argument that mother is "estopped to claim prejudice from the continuances which she either requested or in which she acquiesced," because mother does not assert such a claim. We also do not address their argument that mother forfeited her claim because she failed to provide an adequate record on appeal because the pretrial hearings identified by adoptive parents are irrelevant to this appeal; mother does not challenge the experts' credentials. --------
While mother elected not to cross-examine the psychologists, she did object to their reports at trial. In closing argument, mother's counsel argued "[t]here is no better evidence" that mother can care for and control minor than the fact that she was doing so with her other child. Her counsel continued: "The doctors were concerned . . . that she did not have the ability to recognize when somebody was in need, when a child was in need, that she would not know how to care for a child. But we've actually had ample evidence that in fact she does. She has a child. She is caring for that child. She responds to that child's routine. She feeds, she bathes, she provides medical care. She does all of the things that a mother would do for a youngster. That disproves the idea of the speculation -- and we all agree that those doctors were speculating that she would be unable to provide for the needs. . . . [¶] [I] submit that the doctors, when they wrote their report, did not adequately address the issues. They seemed to have taken a very superficial look at my client and dug no deeper. They looked perhaps at the Restpadd records, but that is it. They didn't talk to family members. They didn't reach out to--we had legal proceedings about how to get other medical records, and it does not appear that those doctors reached out to get them or that they were provided by anybody else. . . . I would submit to you that there are approximately three and a half million people in the United States [who] suffer from schizophrenia. It is not an uncommon ailment, and it is certainly not an ailment in and of itself which would render somebody incapable of taking care of a child."
Mother raises the same "staleness" argument regarding the psychologists' reports on appeal and, thus, we agree with mother the argument was not forfeited. We disagree, however, with mother's claim that there is insufficient evidence to support the trial court's finding.
The psychologists knew mother was pregnant with her other child when they interviewed her. Neither of them indicated, however, a need to reevaluate mother after the child's birth or that mother's interaction with her other child would be necessary or useful to inform their opinions. Rather, the psychologists believed they had sufficient information to provide a detailed analysis and opinion regarding mother's mental state, which they provided. Mother did not cross-examine the psychologists to determine whether mother's change in circumstance would inform their analyses or opinions; mother had the opportunity to do so and decided to proceed with the stipulation instead. Nothing in the stipulation indicates the psychologists would have changed their analyses or opinions in that regard, and we do not so assume because there is no evidence demonstrating that fact. Mother's counsel's argument on the issue is not evidence. (People v. Breaux (1991) 1 Cal.4th 281, 313.)
Additionally, mother introduced no expert testimony indicating that a reevaluation was necessary (and she did not request a reevaluation) or how mother's raising of her other child would or should impact the psychologists' findings and opinions. Thus, there was no evidence to discount the psychologists' findings and conclusions other than mother's brief testimony regarding her physically taking care of the child and her aunt's testimony based on observing mother with the child twice. Mother introduced no evidence regarding her ability to meet and provide for the "cognitive, social, emotional, and general developmental needs" of minor -- the very concern Caruso raised in his report. Speculation or conjecture is not evidence. (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424.) Moreover, we draw all reasonable inferences in support of the trial court's findings and do not evaluate the credibility of the witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Finally, mother's argument that she "was receiving professional help for her mental health issues and was taking medication" at the time of trial is belied by the record. Indeed, mother confirmed she was only seeing a general practitioner and her medications were not prescribed by a psychologist or a psychiatrist. She was taking prescribed medication for attention deficit disorder and anxiety only (not for schizophrenia) and she confirmed she was not taking the medications daily, but rather only on an as "needed" basis. Mother's testimony supported rather than refuted the psychologists' finding of significant parenting risk factors arising from her mental disability because she demonstrated a lack of personal insight into her mental disability as indicated by the psychologists in their reports.
III
Substantial Evidence Supports The Finding That Mother's
Mental Disability Would Remain In The Foreseeable Future
Mother contends there was insufficient evidence to find her mental disability was likely to remain in the foreseeable future because the psychologists failed to obtain a pharmacological evaluation or consider whether psychotherapy could help her condition, and McKellar's opinion did not expressly state her mental disability would remain in the foreseeable future. Adoptive parents argue mother forfeited both claims for failing to raise it in the trial court and, if those claims are not forfeited, substantial evidence supports the trial court's finding.
Mother's first argument is forfeited because she did not raise it in the trial court. At no point did mother argue the psychologists should have performed a pharmacological evaluation or considered whether psychotherapy could help her condition. Mother also did not introduce any evidence indicating that such considerations were necessary or appropriate.
" 'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of error on appeal when it could easily have been corrected at the trial.' " (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) "Moreover, it would be inappropriate to allow a party not to object to an error of which the party is or should be aware, ' "thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." ' " (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)
Mother's second argument regarding McKellar's opinion is unavailing because mother misreads the statute and, in any event, substantial evidence supports the trial court's finding. Under mother's interpretation of section 7827, both experts must give an opinion that the parent's mental disability would remain in the foreseeable future. Not so. The statute merely requires the trial court to consider evidence provided by two qualified experts to support a finding under section 7827; the statute does not require the experts to make the findings. (§ 7827, subd. (c).) "[T]he statute requires a showing only of evidence proffered by both experts regarding a parent's mental disability, evidence from which the court then can make inferences and base its findings." (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 473-474 [discussing § 7827].)
The psychologists concluded mother's symptoms and history suggested an early onset of schizophrenia. Each provided an in-depth examination of her available psychiatric history, her present condition, and her previous response to drug therapy. Caruso explained mother's prognosis was poor rather than guarded due to "levels of denial about her problems and/or her complete inability to understand and appreciate the severity of these problems, combined with her observed resistance to taking any appropriate psychoactive medications." McKellar explained mother was defensive and lacked personal insight into her mental health condition, and the risk factor related to her mental disability was "extremely high because she is either unable, or unwilling or both unable and unwilling to accept her disorder and thus obtain appropriate treatment." He further said her "lack of insight and/or unwillingness to be honest about herself, her mental illness and demonstrated lack of judgment serve as significant parenting risk factors."
The psychologists' opinions are reasonable, credible, and of solid value, such that they provide substantial evidence supporting the trial court's finding. Mother's own testimony supports this finding as well.
At trial, mother asserted the psychologists' opinions were speculative and they misdiagnosed her, yet she did not seek any professional opinion in response to their reports. She did not even mention their opinions to her primary treating physician. Mother further testified she was not taking any medication prescribed by a psychologist or psychiatrist and that, while she was taking prescribed medication for anxiety and attention deficit disorder, she was only doing so when she perceived a need to take it.
Mother's testimony comported with the psychologists' concerns that mother lacks personal insight and is in denial regarding her mental disability, unwilling to accept her disorder, and unlikely to obtain appropriate treatment or take appropriate medications. Thus, there is substantial evidence to support the trial court's finding that mother's mental disability would continue into the foreseeable future.
DISPOSITION
The judgment is affirmed. The parties to bear their own costs. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Butz, J.