Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INP017854, James A. Cox, Judge.
Law Offices of Sanger & Manes and Christopher S. Manes for Defendant and Appellant.
Russell L. Davis for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Teresa Gregory (Gregory) appeals judgment entered in favor of plaintiff Patricia Maciel (Maciel). Maciel, the daughter of decedent, J.D. Webb (Webb), filed a petition, individually and as administrator of the Estate of J.D. Webb (Estate), under Probate Code section 850, subdivision (a)(2)(C). Maciel requested in the petition an order declaring the Estate’s ownership of various property and double damages against Gregory for wrongfully taking, concealing, and disposing of Estate property in bad faith.
Unless otherwise noted, all statutory references are to the Probate Code.
Gregory contends the trial court erred in awarding double damages under section 859 because the court applied the wrong standard. Gregory complains the trial court applied an objective bad faith standard rather than the required subjective standard. Gregory also argues that there was insufficient evidence that she actually believed the subject property was owned by the Estate when she took and disposed of the property. Gregory further argues that the trial court erred in not making findings on the elements of conversion.
We conclude there was sufficient evidence to support the trial court’s decision that Gregory acted wrongfully and in bad faith. We reject Gregory’s contentions that the trial court applied the wrong bad faith standard and that the court was required to consider the elements of conversion when deciding the petition. The judgment is affirmed.
1. Factual and Procedural Background
The decedent, Webb, married Elizabeth Belles (Elizabeth) in the early 1970’s. Elizabeth’s daughter from a prior marriage gave birth to Gregory in May 1982. When Gregory was three years old, she began living with her grandmother, Elizabeth, and Webb because Gregory’s mother was unable to care for her due to having a drug problem.
In 1993, Elizabeth created an intervivos revocable trust (the Trust). The Trust, as amended, was divided into Trust A and Trust B. Webb was entitled to all income from Trust A, and Gregory was the beneficiary of Trust B. Webb was named the trustee of Trust B upon Elizabeth’s death. When Webb died, the remainder of the assets in Trust A was to merge with Trust B, and Elizabeth’s attorney, Richard Henderson, was to serve as successor trustee.
As trustee, Webb was authorized to use the Trust B income and principal for the benefit of Gregory until she reached the age of 23. Gregory was to receive one-third of the principal upon reaching the age of 23, one-half of the balance at age 28, and the balance at the age of 35. These distributions were contingent upon Gregory being drug free.
Elizabeth died in September 1994, when Gregory was 12 years old. Webb took custody of Gregory and they moved to a home in the desert located on Chimayo Road in Thousand Palms, California (the Chimayo property). The Chimayo property was a large parcel that included a relatively large home and ample land to keep horses and Webb’s multiple vehicles, trucks, truck trailers used for his trucking business, and repair tools.
Shortly after Webb and Gregory moved to the Chimayo property, Gregory became addicted to methamphetamine.
In August 2001, when Gregory was 19 years old and still living at the Chimayo property, Webb became bedridden with cancer. Gregory’s boyfriend, Brian Phelps (Phelps), moved in with Gregory on the Chimayo property. At the time, Gregory and Phelps were heavily using drugs. On August 24, 2001, within a few weeks of becoming bedridden, Webb died.
Several weeks before Webb died, Webb’s daughter, Maciel, stayed on the Chimayo property to look after Webb, who had been in and out of the hospital for cancer treatments. Three weeks before Webb died, Webb told Maciel and her two half-brothers, Michael and Steve McInery, that all his personal records, including his will, life insurance policy, and Trust records, were kept in his bedroom closet in two file cabinets. The McInerys were Webb’s stepsons through a prior marriage. Steve lived on the Chimayo property in a trailer.
When Steve McInery’s daughter, Ginger Katt (Ginger), and her husband, Brian Katt (Katt) learned Webb was dying, they also came to the Chimayo property to help out Webb.
About a week before Webb died, Webb asked Maciel to install a deadbolt on his bedroom door because he feared Gregory, Phelps, and their friends would steal his belongings. Maciel’s husband installed the deadbolt.
Right after Webb died, Maciel discovered that all Webb’s files containing his personal records had been removed from Webb’s two locked file cabinets.
The day Webb died, Gregory called the police to have Maciel removed from the property. Steve McInery was also ordered to leave the property. The police required Maciel to leave because she was not a permanent resident there and Gregory, who currently resided there, wanted her to leave. Thereafter Maciel was prohibited from entering the house or garage.
Due to Maciel’s inability to view Webb’s records, she was unable to determine whether Webb had spent Trust money to purchase certain items, and whether property belonged to the Trust or to the Estate.
Gregory admitted at trial that she had removed Webb’s files from the filing cabinets and claimed to have put the records in storage. The documents, according to Gregory, included Trust records, Trust expenditures, inventoried jewelry, and vehicle title documents (pink slips). Gregory admitted at trial to having shredded many of the records.
When Henderson took over as successor trustee of the Trust upon Webb’s death, he found the Trust records in disarray and believed Trust assets had been misappropriated.
One to two weeks after Webb died, Henderson met with Gregory on the Chimayo property. Webb’s records were in large plastic tubs in the living room. Henderson did not find any Trust records dated after 1998.
In September 2001, Henderson sent Maciel and Steve a letter claiming that, while Webb was trustee, he failed to keep proper accounting records documenting what he had done with the Trust funds. Henderson concluded Webb had purchased items with Trust money and put them in his own name.
Henderson also noted in his letter that Webb had sold to Maciel Trust residential property located on Indiana Avenue in Palm Desert (the Palm Desert property) for far less than it was worth. Maciel was currently living in the home. Henderson informed Maciel in his letter that her purchase of the Palm Desert property at below market value was a problem and that the Trust would be making claims against certain specified Estate property. Henderson also proposed to meet with Maciel and Steve at the Chimayo property in September.
On September 22, 2001, Henderson walked the property with Maciel, without going in the house or garage. Henderson told Maciel what property she could and could not take, and what property was disputed.
In January 2002, Henderson warned Maciel not to come onto the Chimayo property because he could not guarantee her safety. Gregory had said she would shoot Maciel and Steve if they came onto the property.
After the Chimayo property was sold in February 2002, Gregory moved to a home in La Quinta, which was Trust property.
On August 28, 2002, Henderson filed on behalf of the Trust a petition to compel the Estate administrator to account for Webb’s tenure as trustee of the Trust (creditor’s claim). The Trust’s creditor’s claim against the Estate sought recovery of $975,471.72 in allegedly misappropriated Trust property from the Estate.
Maciel feared she would lose her Palm Desert home. She assumed Henderson’s allegations had merit since she had no records indicating otherwise. Because Maciel could not refute the Trust’s claims, Maciel settled the matter with Henderson.
Pursuant to the settlement of the Trust’s claims against Estate property, Maciel, as administrator of the Estate, agreed to pay the Trust $230,000 for funds and property Webb allegedly misappropriated from the Trust. The $230,000 was paid out of sales proceeds from the sale of Webb’s trucking property, which belonged to the Estate. In return, it was agreed that various itemized property belonged to Webb, and in turn, the Estate.
When Maciel signed the settlement agreement on April 18, 2003 (Settlement Agreement), she believed Gregory and Henderson were in possession of all of the property declared in the Settlement Agreement as Estate property, with the exception of the Mazda, which Gregory had given to her father.
After executing the Settlement Agreement and paying the Trust $230,000, Maciel discovered that the property declared in the Settlement Agreement as belonging to the Estate had vanished. Maciel was unaware at the time of execution of the Settlement Agreement of this or that Gregory had previously gone through Webb’s records and had hidden or shredded Webb’s records.
Upon discovering the disappearance of the property, Maciel filed on behalf of the Estate and herself individually the instant petition (the petition) claiming Estate ownership of the property and double damages on the ground Gregory had disposed of the property in bad faith. The property claimed in the petition (the property) included the following items, most of which had been listed in the Settlement Agreement as belonging to the Estate:
1. 1930 Ford Model A
2. 1995 Jeep Cherokee
3. Polaris all-terrain vehicle (ATV)
4. Yamaha quadrunner (quad)
5. Two mopeds
6. Motorcycle
7. Riding lawn mower
8. 1958 Rolls Royce Cloud I
9. White flat-bed truck
10. Blue Mazda
11. Horse named Elliott
12. Horse equipment
13. Cargo container and contents
14. Pool table
14. Collection of rifles, guns, and tools
15. Two large safes
16. All furniture and personal effects owned by Webb at the time of his death
In response to Maciel’s petition, Gregory claimed that most of the items had been stolen by third parties.
After conducting a bench trial on the petition, the trial court entered judgment in favor of Maciel and the Estate, finding that many of the listed items belonged to the Estate (item Nos. 1-6, 9-11, and two guns), and Gregory had disposed of the property in bad faith. The trial court accordingly awarded the Estate $119,166.50, which included double damages.
2. Establishing Elements of an Underlying Conversion Claim
Gregory argues that in order for Maciel to prevail on her section 850 petition, the trial court was required to find that Gregory committed conversion of the Estate property. We disagree.
A dispute regarding title of a decedent to specific property alleged to be included in the decedent’s estate “properly can be resolved under section 850. That statute permits the personal representative or any interested person to file a petition in probate requesting a court order ‘[w]here the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another.’ (§ 850, subd. (a)(2)(C).)” (In re Estate of Yool (2007)151 Cal.App.4th 867, 873-874.)
Section 850 is intended to operate as a mechanism for resolving in probate court adverse claims to estate property, as well as related “claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of a petition filed under this part.” (§ 855.) Here, the trial court determined that certain enumerated property belonged to the Estate, primarily based on the Settlement Agreement that determined ownership.
Gregory argues that Maciel’s petition is in essence a conversion cause of action and therefore the trial court erred in refusing to make findings on the elements of conversion before granting the petition and double damages. Specifically, Gregory argues there was no finding that Gregory had dominion and control over the property. Gregory claims either Henderson had control over the property or third parties stole items.
The trial court rejected Gregory’s demand for conversion findings, stating in its written decision: “Respondent has asked this court to make certain findings pertaining to her claim that the tort of conversion pertains to this proceeding pursuant to Probate Code Section 850. The court declines to make such findings, as conversion is not the applicable standard.”
We agree. The trial court was not required to make findings on conversion. We reject Gregory’s contention that an estate’s property claim asserted in a section 850 petition must be founded on an underlying civil cause of action, such as conversion. Section 850 provides a mechanism for an estate to obtain a determination of ownership of property subject to an adverse claim. Section 855 merely provides that a section 850 petition “may include claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of a petition filed under this part.” (§ 855, italics added.) Alleging and proving a civil cause of action in a section 850 petition is permitted under section 855 but is not required.
Here, in establishing Estate ownership of property, all that was required was substantial evidence that the property in question belonged to the Estate, not Gregory. While the Estate had the option of also asserting a conversion claim, this was not necessary and such a claim was not expressly alleged.
Gregory argues the fact that Maciel signed over to the Trust the pink slips for the Model A and Mazda, showed that the vehicles belonged to the Trust, not the Estate. But, even though there was evidence of this, there was also evidence that Maciel did so not knowing there may have been a basis for claiming Estate ownership. Maciel signed over the vehicles in 2002 before she discovered Gregory had hidden and shredded Webb’s personal records relating to the Trust and Estate property.
In addition, Maciel testified she signed the pink slips pursuant to an oral agreement with Henderson, hoping to avoid losing her home, but the oral agreement was unconsummated. Thereafter, Henderson filed a creditor’s claim on behalf of the Trust asserting adverse claims against Estate property. Eventually, the dispute over ownership of the Trust and Estate property was settled pursuant to the Settlement Agreement executed in 2003, whereby it was agreed the Estate owned the vehicles and other property. Unbeknownst to Maciel, Gregory had already disposed of the Estate property, including the vehicles.
Under such circumstances, there was sufficient evidence supporting the trial court’s order declaring Estate ownership of the property, and there was no need for additional findings on the elements of conversion.
Gregory’s reliance on cases such as Parker v. Walker (1992) 5 Cal.App.4th 1173, 1189, and In re Estate of Yool, supra, 151 Cal.App.4th at pp. 872-874, for the proposition the trial court was required to consider whether Maciel established the elements of conversion when deciding the section 850 petition, is misplaced. These cases concern the issue of what statute of limitations applies when a section 850 petition is premised on an underlying contract or debt collection cause of action.
In Yool, the court determined ownership of estate property by means of a section 850 petition in the absence of an underlying civil cause of action. The court in Yool concluded there was no valid creditor’s claim and then decided, based on the totality of the evidence, that the estate did not have any interest in the property in question. (In re Estate of Yool, supra, 151 Cal.App.4th at pp. 876-877.) Likewise, here, the court appropriately considered the totality of the evidence and concluded the Estate owned the property in question. Gregory argues that the petition contained a conversion claim because Maciel alleged in the petition that Gregory “wrongfully took” the property. But that language appears to be alleged in support of Maciel’s claim for double damages, in which she states that Gregory “in bad faith wrongfully took, concealed and hid the assets . . . which rightfully belong to the estate. [¶] . . . Petitioner seeks the value of the assets . . ., plus double damages from Teresa Gregory for wrongfully taking and concealing the above-described assets in bad faith.”
There is no mention of a conversion claim in the section 850 petition. The trial court thus was not required to make any findings on conversion. The court was merely required to determine whether the Estate was the owner of the subject property and whether it was entitled to recover double damages against Gregory under section 859.
3. Bad Faith Damages
Gregory contends there was insufficient evidence of bad faith to support the trial court’s award of double damages under section 859 to the Estate.
Section 859 allows recovery of double damages when bringing a section 850 petition upon a finding of bad faith. Section 859 provides: “If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent, conservatee, minor, or trust, the person shall be liable for twice the value of the property recovered by an action under this part. The remedy provided in this section shall be in addition to any other remedies available in law to a trustee, guardian or conservator, or personal representative or other successor in interest of a decedent.”
A. Sufficiency of Evidence of Bad Faith
Gregory contends there was insufficient evidence supporting bad faith damages under section 859 because there was no evidence that she believed the Estate owned the property. Gregory claims there was unrebutted evidence she believed the Trust owned the property. We disagree. There was substantial evidence Gregory knew the property belonged to Webb at the time of his death and thus quite likely the Estate would be claiming ownership of the property. A reasonable inference can be made that for this reason Gregory hid and shredded Webb’s personal records, including trust records and vehicle pink slips, and ultimately disposed of all the property without informing the Estate administrator, Maciel.
Even if Gregory believed some of the property might be Trust property, she knew ownership by the Trust had not been established and ownership was or would be disputed. Gregory nevertheless intentionally impeded determination of ownership by hiding or destroying records that may have been dispositive in determining ownership.
As to the vehicles, Gregory admitted she had possession of the vehicles and pink slips and knew Webb was named on the pink slips as record owner. Gregory hid the pink slips from Maciel. Katt and his wife testified that shortly after Webb’s death Gregory gave them the pink slips and asked them to hide the pink slips in the trunk of their car. Gregory told the Katts she did not want Maciel to find them. When the Katts returned the pink slips to her after briefly hiding them, she put the pink slips in a storage facility, along with Webb’s other remaining records.
There was also substantial evidence that Gregory essentially foreclosed Maciel from access to most of the property and Webb’s records, and thus prevented Maciel from investigating ownership. By the time the parties entered into the Settlement Agreement in which the parties agreed to the Estate owning the property, Gregory had already disposed of the property. In addition, Gregory lied about the whereabouts of the property and its disappearance. For instance, in a discovery response, Gregory said Webb sold the ATV, quad, and two mopeds before he died. This was refuted by a video taken after Webb’s death that showed the ATV and mopeds were at the Chimayo property.
Gregory said Phelps owned the Honda motorcycle claimed by the Estate, whereas the pink slip introduced at trial showed Webb and Elizabeth named as owner.
Gregory said under oath that Webb did not own the riding lawn mower when he died but a video and photo showed it on September 21, 2001, on the Chimayo property a month after Webb died.
As to the furniture claimed by the Estate, Gregory said it did not exist when Webb died. But there was testimony that it did exist and was put in storage. Gregory gave some of it to her mother and some to Phelps’s attorney, Ruben Sanchez, in payment for legal services provided to Phelps.
Webb’s tools, claimed by the Estate, were also taken. A day or two after Maciel was permitted onto the Chimayo property to gather up the tools and lock them in a trailer, the trailer lock was broken and the tools disappeared.
There was also evidence Gregory attempted to sell Webb’s cars and Phelps sold Webb’s guns that had been locked up in a cabinet. Numerous guns were discovered missing and seven of Webb’s guns were found in Phelps’s possession. Gregory testified there originally were 16 to 18 guns in the gun cabinet. There was evidence that both Gregory and Phelps each carried one of Webb’s guns. Katt testified he witnessed Gregory and Phelps sell or give away Webb’s guns.
As to Webb’s bobtail truck, it was on the Chimayo property at the time of Webb’s death. There was testimony it later appeared on the side of the road with a “for sale” sign. Henderson testified Gregory had the keys to the truck. Gregory denied this and claimed she did not know how the truck ended up on the side of the road. A reasonable inference could be made she placed it there in an attempt to sell it.
Gregory nevertheless argues there was evidence she believed the Trust, rather than the Estate, owned the property. Such evidence included evidence Henderson treated the property as if it were owned by the Trust. He authorized Gregory to drive the Jeep and used Trust funds to repair and insure the Jeep. Henderson, as trustee, took control and dominion over the property, moving it from the Chimayo property to the Trust property in La Quinta, where Gregory moved after the Chimayo property sold.
In addition, in August 2002, Henderson filed a creditor’s claim on behalf of the Trust against the Estate to establish Trust ownership of the property, claiming Webb had purchased property with Trust funds and therefore the property belonged to the Trust, rather than to the Estate.
This evidence, however, also supports a finding of bad faith because it establishes Gregory knew ownership was or would likely be disputed and the dispute was not resolved when she hid and disposed of the property and records.
Gregory further argues that she believed the Trust owned the Model A and Mazda, which were in Webb’s name at the time of his death, because Maciel signed over to the Trust the pink slips for the two vehicles, and possibly the pink slip for the Jeep as well. But as explained above, this occurred because Maciel feared losing her home and was unable to refute the Trust’s ownership claims because Gregory had hidden and destroyed records that may have refuted Trust ownership. In addition, Maciel was persuaded to sign over the pink slips pursuant to an oral agreement which was never consummated.
While in jail for two and a half months, Gregory attempted to hide the Model A Ford by writing a note to Henderson requesting him to deliver the Model A Ford to a friend. The Ford had been at Gregory’s home at the time of her arrest and incarceration. Gregory claimed the Model A Ford was stolen while Gregory was in jail, but Gregory’s note to Henderson indicated Gregory gave it to a friend. Gregory then testified her note was not actually true. She told Henderson this because she did not want him to know the Model A was stolen. But Gregory would not have known it was stolen when she wrote the note because she was in jail at the time and did not discover the Model A was stolen until she was released from jail.
The Jeep also disappeared. Gregory argues Carrasco’s testimony that Gregory gave him the Jeep establishes she believed she owned the Jeep. Carrasco testified he believed the Jeep was Gregory’s because she said to him she did not like the idea of letting him take it. But Carrasco also testified that when Gregory gave him the keys to the Jeep, he asked Gregory for the pink slip and she said she did not have it because the Jeep was not in her name. A reasonable inference can be made that Gregory gave the Jeep to Carrasco, knowing she was not the legal owner of the Jeep but was in a bind because Carrasco was pressuring her to either pay him $5,000 or give him Webb’s Jeep as compensation for Gregory’s boyfriend, Phelps, totaling Carrasco’s Jeep.
There is also evidence Gregory lied about the disappearance of the Jeep. When, in accordance with the Settlement Agreement, Maciel requested the Jeep be turned over to her, she was told the Jeep was stolen. There was also evidence Gregory attempted in bad faith to obtain a duplicate title to the Jeep by filling out a DMV form requesting that title to the Jeep be placed in her name.
Gregory further argues that Katt’s testimony supports a finding Gregory believed the property did not belong to the Estate. Brian Katt testified that Gregory convinced him that some of the property was hers and therefore he helped her prevent Maciel from taking the pink slips by hiding them for Gregory. Gregory relies on Katt’s testimony in which he testified Gregory told him the property “was owned by the estate except for the trailer with Patti’s stuff in it. [¶] . . . [¶] She said it was owned by her, you know, the trustee of the estate, whatever, was her stuff, that she was inheriting it.”
This testimony is ambiguous as to whether Gregory believed the Estate or the Trust owned the property. Katt indicates Gregory told him the property was owned by the Estate and by the “trustee of estate”; that she was inheriting it; and that it was hers. Katt further testified that, later, Katt concluded Gregory’s representations were not truthful.
Even if there may have been some evidence supporting Gregory’s contention that she believed the Trust owned the property, there was substantial evidence that Gregory believed the property did not belong to her or the Trust but, rather, belonged to the Estate. She was also aware the Estate likely would claim or was claiming ownership to the property. It can be reasonably inferred from the evidence that Gregory concealed evidence of ownership of the property to prevent Maciel and the Estate from obtaining the property; took, hid, sold and or disposed of the property; and lied about the location and existence of the property.
“[I]n reviewing a judgment based upon a statement of decision following a bench trial, ‘any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. [Citations.]’ [Citation.] In a substantial evidence challenge to a judgment, the appellate court will ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]’ [Citation.] We may not reweigh the evidence and are bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]” (In re Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) Accordingly, we conclude there was sufficient evidence to support the trial court’s finding of bad faith and affirm the damages award.
B. Application of the Subjective Standard
Gregory complains that the trial court erroneously applied an objective standard when determining whether Gregory acted in bad faith under section 859. The parties agree the trial court was required to apply the subjective standard. (Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1263.)
A determination of subjective bad faith requires a factual inquiry into Gregory’s “‘subjective state of mind [citations]: Did he or she believe the action was valid? What was his or her intent or purpose in pursuing it? A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence.’ [Citation.] ‘“[B]ad faith” means simply that the action or tactic is being pursued for an improper motive.’” (Gemini Aluminum Corp. v. California Custom Shapes, Inc., supra, 95 Cal.App.4th at p. 1263.)
Gregory assumes the court incorrectly applied an objective bad faith standard based on its statement of decision, which Gregory claims states that Gregory concealed from Maciel the pink slips of various vehicles, “‘knowing the same to be the personal property of the decedent.’” While the statement of decision does not actually contain this language quoted in Gregory’s appellate brief, the trial court does state in its statement of decision that “. . . Respondent acted in bad faith by hiding from the administrator and the trustee of the Belles Trust, the title documents (vehicles), by which the fiduciaries could have determined the true title of these assets at an early stage of the proceedings.”
It is unclear what Gregory is quoting in her appellate brief because Gregory does not cite to the record.
The language in the statement of decision does not establish that the trial court applied an objective standard, rather than the subjective bad faith standard. Since bad faith is a state of mind that normally must be determined by indirect evidence and reasonable inferences therefrom (Gemini Aluminum Corp. v. California Custom Shapes, Inc., supra, 95 Cal.App.4th at p. 1263), the court must look to acts, such as Gregory’s initial possession and concealment of the pink slips, and awareness that legal title was in Webb’s name. Gregory was thus aware the documents supported the Estate’s claim to Webb’s vehicles. Gregory was also aware there was an ongoing dispute between the Estate and Trust as to ownership of the vehicles and other property, yet nevertheless hid and disposed of the property and numerous records.
It cannot be assumed based on the statement of decision that the court failed to apply the subjective standard in finding Gregory acted in bad faith. There is nothing in the record establishing that the trial court applied the wrong standard when deciding whether to award double damages based on a finding of bad faith. Furthermore, there is ample evidence supporting the trial court’s finding that Gregory acted in bad faith.
4. Disposition
The judgment is affirmed. Maciel is awarded her costs on appeal.
We concur: Hollenhorst, Acting P. J., Miller, J.