Opinion
C078585
01-12-2017
MITCHELL GOODIS, as Successor in Interest, etc., et al., Plaintiffs and Respondents, v. GLADIOLUS HOLDINGS, LLC, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PC20140319)
Defendant Gladiolus Holdings, LLC (Gladiolus), doing business as The Pines at Placerville Healthcare Center (PPHC), appeals from an order granting in part, and denying in part, its motion to compel arbitration of an action for elder abuse, wrongful death, and medical malpractice by plaintiffs Mitchell Goodis, individually and as successor in interest to Jesse Goodis (decedent), Jeffrey Goodis, Douglas Goodis, Susan Goodis, and Jamie Goodis (together, Plaintiffs). PPHC and Jesse are parties to residency agreements containing arbitration provisions, which Mitchell signed as Jesse's representative. Jeffrey, Douglas, Susan and Jamie are not parties to any arbitration agreement, and Gladiolus does not contend that Mitchell agreed to arbitrate any cause of action in his personal capacity. Though Gladiolus claims that Jesse's treating physicians, defendants Chandan Cheema, Cesar Ang and Jaswant Virk (together, the Doctor Defendants), consent to arbitration, the record indicates otherwise.
Because Plaintiffs share a common surname, for clarity, we use their first names when referring to them individually.
The trial court determined that Jeffrey, Douglas, Susan, Jamie and Mitchell, in his individual capacity (together, the Heirs), are third parties within the meaning of Code of Civil Procedure section 1281.2, subdivision (c), and cannot be compelled to arbitrate their wrongful death cause of action against Gladiolus, PPHC and the Doctor Defendants (together, Defendants). The trial court also determined that the Doctor Defendants are third parties within the meaning of the statute, and cannot be compelled to arbitrate Jesse's medical malpractice cause of action against them. Although recognizing the possibility of conflicting rulings, the trial court (1) granted the motion to compel arbitration of Jesse's cause of action for elder abuse against PPHC, (2) denied the motion to compel arbitration of Jesse's cause of action for medical malpractice against the Doctor Defendants, (3) denied the motion to compel arbitration of Plaintiffs' cause of action for wrongful death against Defendants, and (4) stayed arbitration of Jesse's elder abuse cause of action pending litigation of the wrongful death and medical malpractice causes of action in the trial court.
Undesignated statutory references are to the Code of Civil Procedure.
On appeal, Gladiolus argues the trial court abused its discretion by staying the arbitration of Jesse's elder abuse cause of action pending litigation of Plaintiffs' wrongful death cause of action. Gladiolus also argues that the trial court lacked discretion to stay arbitration under section 1281.2, subdivision (c) because the Doctor Defendants are not third parties within the meaning of the statute. Gladiolus asks us to reverse the trial court's order and direct the court to either enter a new order sending the entire case to arbitration, or require arbitration of Jesse's elder abuse cause of action against Gladiolus and/or PPHC before litigation of the remaining causes of action in the trial court.
We conclude that the statutory prerequisites to applying section 1281.2, subdivision (c) were met, such that the trial court was authorized to exercise its discretion. We further conclude that the trial court's decision to stay arbitration of Jesse's elder abuse cause of action against PPHC pending litigation of Jesse's medical malpractice cause of action against the Doctor Defendants and Plaintiffs' wrongful death cause of action against Defendants was expressly authorized by section 1281.2, subdivision (c) and does not constitute an abuse of discretion. We therefore affirm.
I. BACKGROUND
Gladiolus owns and operates PPHC, a nursing facility in Placerville. Jesse was admitted to PPHC on June 21, 2013. On July 6, 2013, Jesse was discharged to Marshall Medical Center, where he was treated for pneumonia. On July 12, 2013, Jesse was discharged from Marshall and readmitted to PPHC. The Doctor Defendants acted as Jesse's treating physicians.
Upon his readmission to PPHC, Jesse was treated with an anticoagulant called Coumadin. According to the operative second amended complaint: "It is well understood both in the physician and the skilled nursing community, and, indeed, included on the warning label for Coumadin, that it is extremely important to monitor a patient's Prothrombin Time/International Normalized Ratio (INR) levels when a patient is committed to Coumadin therapy to avoid thinning the blood too much and/or dangerous drug-drug interactions, which can cause hemorrhaging, internal bleeding, acute kidney injury, and death."
Jesse received Coumadin from July 12, 2013, through August 20, 2013. Jesse's treatment plan included an order that PPHC obtain a blood sample every other day for INR testing by an outside lab. According to the complaint, PPHC and the Doctor Defendants failed to conduct the necessary blood tests and/or failed to review the results of those tests.
On August 21, 2013, PPHC staff found Jesse lethargic and difficult to wake. Paramedics transferred Jesse to Marshall, where he was diagnosed with "markedly elevated INR levels, 9.3, a near-lethal level, along with subepithlial petechiae, or bleeding into the skin, Coumadin toxicity, an acute kidney injury, and internal bleeding." According to the complaint, a normal INR level for a person on Coumadin is around 2. Jesse passed away on September 4, 2013, at the age of 83.
Mitchell, Jeffrey, Douglas and Susan are Jesse's children; Jamie is Jesse's grandchild. Mitchell is also Jesse's successor in interest.
On June 30, 2014, Plaintiffs filed an initial complaint against PPHC and the Doctor Defendants. The complaint asserts the following causes of action: (1) A cause of action for elder abuse (Welf. & Inst. Code, § 15600 et seq.) on Jesse's behalf, by and through Mitchell as successor in interest, against all defendants; (2) a wrongful death cause of action by all Plaintiffs (including Mitchell individually), against the Doctor Defendants; and (3) a cause of action for medical malpractice on Jesse's behalf, by and through Mitchell as successor in interest, against the Doctor Defendants. Plaintiffs' second cause of action for wrongful death incorporates by reference the allegations of Jesse's first cause of action for elder abuse.
Gladiolus answered the complaint and filed a motion to compel arbitration pursuant to sections 1281.2 and 1295 and Health and Safety Code section 1599.81. The motion was based on arbitration provisions in two agreements between PPHC and Jesse, signed by Mitchell as Jesse's representative. One agreement requires binding arbitration of medical malpractice claims. The other agreement requires binding arbitration of "any claim other than a claim for medical malpractice, arising out of the provision of services by the Facility, the admission agreement, the validity, interpretation, construction, performance and enforcement thereof, or which allege wrongful death or violations of the Elder Abuse and Dependent Adult Civil Protection Act, or the Unfair Competition Act, or which seek an award of punitive damages or attorneys' fees." Each of the agreements expressly states that Jesse does not waive his right under Health and Safety Code section 1430 to bring a lawsuit in court against the facility for violations of the Patient's Bill of Rights contained in title 22, section 72527 of the California Code of Regulations. Each of the agreements also states: "This arbitration agreement binds the parties hereto, including the heirs, representatives, executors, administrators, successors, and assigns of such parties."
With respect to the Doctor Defendants, Gladiolus argued, "all defendants in this case are equally situated to compel arbitration because the same facts and theories plaintiffs assert against [PPHC] are 'inherently inseparable' from the claims plaintiff [sic] makes as to the other named defendants." Gladiolus did not offer any evidence showing that the Doctor Defendants were bound by the arbitration agreements or otherwise consented to arbitration.
Plaintiffs opposed the motion, arguing that Jeffrey, Douglas, Susan and Jamie, on the one hand, and the Doctor Defendants, on the other hand, are third parties to the arbitration agreements, and their claims and defenses present a possibility of conflicting rulings on common issues of fact and law. Plaintiffs also observed that the Doctor Defendants are represented by separate counsel, had filed separate demurrers, and had not joined in the motion to compel arbitration.
Shortly thereafter, Plaintiffs filed a first amended complaint asserting the following causes of action: (1) A cause of action for elder abuse (Welf. & Inst. Code, § 15600 et seq.) on Jesse's behalf, by and through Mitchell as successor in interest, against all defendants; (2) a wrongful death cause of action by all Plaintiffs (including Mitchell individually), against all defendants (as opposed to just the Doctor Defendants); and (3) a cause of action for medical malpractice on Jesse's behalf, by and through Mitchell as successor in interest, against the Doctor Defendants.
Gladiolus filed a reply to Plaintiffs' opposition to the motion. In its reply, Gladiolus argued that the arbitration agreements are binding on the Heirs, and observed that the Doctor Defendants did not oppose the motion to compel arbitration. In a declaration accompanying the reply, Gladiolus's trial counsel averred, "We understand from conversations with Co-defense counsel, that the [Doctor Defendants] do not oppose this motion to compel arbitration, and that if necessary, counsel will make this representation to the court at the hearing [on] this motion."
In anticipation of the hearing on the motion, the trial court issued a lengthy tentative ruling, granting the motion in part and denying the motion in part. After reviewing the relevant case law, the trial court tentatively concluded that Jesse's causes of action for elder abuse and medical malpractice are subject to arbitration, but Plaintiffs' cause of action for wrongful death, which is based on allegations that Defendants engaged in "reckless neglect, abuse [and] fraud," is not. (See Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841 [nonsignatories to arbitration agreement must arbitrate their wrongful death claims against health care provider when decedent agreed to arbitrate medical malpractice claims pursuant to section 1295, the wrongful death claims are based on medical malpractice, and the agreement was intended to bind wrongful death claimants]; see also Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674, 683 (Daniels) [Ruiz does not extend to "arbitration agreements not governed by section 1295, or that are entered into with a person other than a health care provider for claims other than medical malpractice"].)
The trial court also observed that "there is a possibility of conflicting rulings on a common issue of law or fact related to the elder abuse cause of action concerning the alleged neglect in the [nursing] facility, which is subject to arbitration, and the wrong[ful] death cause of action premised upon the same alleged reckless neglect, abuse, and fraud, which is subject to civil litigation." While recognizing the risk of inconsistent rulings, the trial court nevertheless opined, "In order to be even handed under the circumstances presented, it appears appropriate to stay the arbitration and allow the litigation to proceed." Accordingly, the trial court tentatively concluded, "The medical malpractice and elder abuse causes of action are ordered to be arbitrated, with arbitration stayed pending litigation of the wrongful death cause of action."
At the hearing on the motion to compel arbitration, the Doctor Defendants emphatically denied having agreed to arbitrate, stating, through counsel, "I want to make it clear, my clients through the tentative ruling are getting roped into this arbitration process. Although we do not oppose the facility's motion to compel the plaintiffs to arbitrate their claims against the facility, we are not consenting for the plaintiffs to arbitrate their claims against the doctors." Shortly thereafter, the Doctor Defendants' counsel reiterated, "When I was reading the tentative ruling, it appears that you were ordering that everything be stayed for the entire proceedings including against our doctors, and we do not consent to arbitrating those proceedings."
During the hearing, Gladiolus and Plaintiffs agreed, through their counsel, that Plaintiffs' cause of action for wrongful death is predicated on Jesse's cause of action for elder abuse. The parties also agreed that arbitrating one cause of action, and litigating another, would give rise to a possibility of conflicting rulings. Following further argument, during which Gladiolus insisted that Jesse's causes of action for elder abuse and medical malpractice should be arbitrated first, the trial court took the matter under submission. Shortly thereafter, the trial court issued an order granting in part, and denying in part, the motion to compel arbitration.
The order concludes that Jesse's cause of action for elder abuse against PPHC is subject to arbitration, but Jesse's cause of action for medical malpractice against the Doctor Defendants and Plaintiffs' cause of action for wrongful death against Defendants are not. The order further concludes: "The arbitration is stayed pending litigation of the [Plaintiffs'] wrongful death cause of action and the medical malpractice cause of action only as it concerns alleged medical malpractice by the [Doctor Defendants]."
While the order references a medical malpractice claim against PPHC, the second amended complaint only pleads medical malpractice against the Doctor Defendants.
The trial court's order does not address Jesse's cause of action for elder abuse against the Doctor Defendants (as opposed to PPHC). We take judicial notice on our own motion of the trial court's register of actions, which indicates that the court subsequently sustained Virk and Ang's demurrer to Jesse's elder abuse cause of action without leave to amend.
Gladiolus filed a timely notice of appeal.
II. DISCUSSION
A. Section 1281.2, Subdivision (c) and the Standard of Review
"California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. [Citation.] To further that policy, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. [Citation.] Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues. (§ 1281.2, subds. (a)-(c).)" (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967 (Acquire II).)
"The third party litigation exception applies when (1) '[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party . . .'; (2) the third party action 'aris[es] out of the same transaction or series of related transactions'; and (3) 'there is a possibility of conflicting rulings on a common issue of law or fact.' (§ 1281.2, [subd.] (c).) If all three of these conditions are satisfied, then section 1281.2[, subdivision] (c) grants a trial court discretion to either deny or stay arbitration despite an agreement to arbitrate the dispute. [Citation.] Specifically, section 1281.2 identifies four options from which the court may choose: (1) 'refuse to enforce the arbitration agreement and . . . order intervention or joinder of all parties in a single action or special proceeding'; (2) 'order intervention or joinder as to all or only certain issues'; (3) 'order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding'; and (4) 'stay arbitration pending the outcome of the court action or special proceeding.' (§ 1281.2.)" (Acquire II, supra, 213 Cal.App.4th at pp. 967-968.)
"Whether an arbitration agreement is binding on a third party (e.g., a nonsignatory) is a question of law subject to de novo review. [Citation] By contrast, the ultimate determination whether to stay or deny arbitration based on the possibility of conflicting rulings on common questions of law or fact is reviewed for an abuse of discretion. [Citation.] 'The court's discretion under section 1281.2, subdivision (c) does not come into play until it is ascertained that the subdivision applies, which requires the threshold determination of whether there are nonarbitrable claims against at least one of the parties to the litigation (e.g., a nonsignatory).' [Citations.]" (Daniels, supra, 212 Cal.App.4th at p. 680.) B. The Trial Court Properly Determined That the Heirs and Doctor Defendants Are Third Parties Within the Meaning of Section 1281 .2, Subdivision (c)
Gladiolus does not challenge the trial court's determination that the Heirs are third parties within the meaning of section 1281.2, subdivision (c). Instead, Gladiolus focuses on the trial court's designation of the Doctor Defendants as third parties. Specifically, Gladiolus argues that (1) Plaintiffs allege the Doctor Defendants are agents or employees of PPHC and/or Gladiolus, (2) Plaintiffs' agency allegations are binding judicial admissions, (3) as putative agents, the Doctor Defendants would have standing to enforce the arbitration agreements and would not be "third parties" within the meaning of section 1281.2, subdivision (c), (4) in the absence of any third party defendant, section 1281.2, subdivision (c) does not apply, and therefore, (5) the trial court lacked discretion to stay arbitration of Jesse's elder abuse cause of action against Gladiolus pending litigation of Jesse's medical malpractice cause of action against the Doctor Defendants and Plaintiffs' wrongful death cause of actions against Defendants. We need not address these contentions in detail as we perceive more fundamental problems with Gladiolus's argument.
First, Gladiolus ignores the trial court's determination that the Heirs are third parties. The term "third party" for purposes of section 1281.2 means "a party that is not bound by the arbitration agreement." (RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1519; see also Thomas v. Westlake (2012) 204 Cal.App.4th 605, 612 ["As used in section 1281.2, subdivision (c), the term 'third party' means a party to the action that is not bound by or entitled to enforce the arbitration agreement"].) Here, Gladiolus implicitly—and appropriately—concedes that the Heirs are not bound by any arbitration agreement. (See Daniels, supra, 212 Cal.App.4th at p. 681 [daughter who signed arbitration agreement as the decedent's agent could not be compelled to arbitrate personal cause of action for wrongful death, despite the fact that the agreement was expressly binding on decedent's heirs]; see also Bush v. Horizon West (2012) 205 Cal.App.4th 924, 926-927 [daughter who signed residency agreement as guardian ad litem was not bound by arbitration provision and could not be compelled to arbitrate personal cause of action for negligent infliction of emotional distress]; Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469, 474 [surviving spouse and adult children could not be compelled to arbitrate because there was no evidence spouse signed arbitration agreements in his personal capacity, and adult children did not sign at all].) Gladiolus also implicitly concedes that the Heirs' claims arise out of the same transaction and present a possibility of conflicting rulings on common issues. On the record before us, these concessions amount to an acknowledgement that the elements of the third party litigation exception have been satisfied. (§ 1281.2, subd. (c).) It follows that the trial court had discretion to stay or deny arbitration under section 1281.2, subdivision (c). (See, e.g., Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1405 ["If the prerequisites of the exception exist in a particular case, i.e., there are third parties not subject to arbitration on claims arising out of the same transaction or related transactions, and a possibility of conflicting rulings on common issues of law or fact, then the trial court has discretion to deny or stay arbitration"].)
Second, Gladiolus ignores its burden as the moving party. As the party seeking arbitration, Gladiolus had the initial burden of proving the existence of a valid arbitration agreement covering the dispute. (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 705.) "To satisfy the moving party's initial burden, the petition or motion must be 'accompanied by prima facie evidence of a written agreement to arbitrate the controversy' in question. [Citation.]" (Ibid.) Here, though Gladiolus argued that the Doctor Defendants would have standing to enforce the arbitration agreement between PPHC and Jesse, it made no attempt to affirmatively allege the existence of a written agreement to arbitrate by the Doctor Defendants. Thus, so far as the Doctor Defendants are concerned, Gladiolus failed to satisfy "the most basic statutory prerequisite to granting the [motion]—to allege the existence of a written agreement to arbitrate." (Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4th 1569, 1574 (Brodke).)
Plaintiffs' agency allegations do not help Gladiolus. As the Brodke court explained, a motion to compel arbitration " 'is in essence a suit in equity to compel specific performance of a contract.' " (Brodke, supra, 160 Cal.App.4th at p. 1574.) "In seeking enforcement of the contract, defendants have the burden under section 1281.2 to allege the existence of a written agreement to arbitrate." (Id. at p. 1575.) Significantly, "Defendants cannot rely on the allegations in the complaint to meet their pleading burden. While plaintiffs' admissions are an appropriate means by which the existence of an agreement may be proved, there is simply no reason to prove anything until the moving party alleges the existence of that which is to be proved." (Ibid.) In the absence of any evidence that the Doctor Defendants consented to arbitration (and Gladiolus presented none), the trial court correctly concluded that the Doctor Defendants were third parties within the meaning of section 1281.2, subdivision (c).
Gladiolus claims, "the Doctor Defendants have not objected to—but have consented to—having all claims asserted against them arbitrated." Gladiolus finds support for this claim in the reply declaration of its trial counsel, which avers that the Doctor Defendants "do not oppose this motion to compel arbitration . . . ." Contrary to Gladiolus's suggestion, the Doctor Defendants' non-opposition to the motion to compel arbitration does not establish their consent to arbitrate, especially since the motion to compel arbitration was not directed to them. In fact, the Doctor Defendants unequivocally objected to arbitration at the hearing on the motion. We therefore reject Gladiolus's contention that the Doctor Defendants consented to arbitration.
Gladiolus does not challenge the trial court's implied finding that the claims against the Doctor Defendants arise out of the same transaction and raise a possibility of conflicting rulings on common issues. We therefore conclude that the elements of the third party litigation exception were also satisfied with respect to the Doctor Defendants, lending further support to our conclusion that the trial court had discretion to stay or deny arbitration under section 1281.2, subdivision (c). (See Laswell v. AG Seal Beach, LLC, supra, 189 Cal.App.4th at p. 1405.) C. The Trial Court Did Not Abuse Its Discretion
Having determined that section 1281.2, subdivision (c) was applicable, the trial court had four choices: (1) refuse to enforce the arbitration agreement and order intervention or joinder of all parties in a single action, (2) order intervention or joinder as to all or certain issues; (3) order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration agreement; or (4) stay arbitration pending the outcome of the court action or special proceeding. The trial court had broad discretion in deciding how to proceed. (RN Solution, Inc. v. Catholic Healthcare West, supra, 165 Cal.App.4th at p. 1521, fn. 15.) Here, the trial court exercised its discretion to stay arbitration of Jesse's elder abuse cause of action against PPHC pending litigation of Jesse's medical malpractice cause of action against the Doctor Defendants and Plaintiffs' wrongful death cause of action against Defendants. The trial court's decision was specifically permitted under the statute.
Gladiolus argues that Jesse's elder abuse cause of action serves as the predicate for Plaintiffs' wrongful death cause of action, and should logically be adjudicated first. According to Gladiolus, "there is no way to determine whether Gladiolus is liable for the wrongful death of Jesse until it is first determined whether Gladiolus[] is liable for the wrongful acts on which Plaintiffs have premised those wrongful death claims, including whether Gladiolus committed either elder abuse or professional negligence, and if [it] did, whether that conduct caused Jesse's death." (Italics omitted.) We recognize that litigation of Plaintiffs' wrongful death cause of action against Defendants may require the trier of fact to consider some of the same issues as arbitration of Jesse's elder abuse cause of action against Gladiolus and/or PPHC. Although we perceive potential advantages to arbitrating the elder abuse cause of action first, as Gladiolus proposes, we cannot say that the trial court's approach exceeds the bounds of reason. (Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC, supra, 150 Cal.App.4th at p. 475 ["We will not disturb the court's discretionary ruling unless it exceeded the bounds of reason"].
We reiterate that the trial court's decision to stay arbitration of Jesse's elder abuse cause of action pending litigation of Jesse's medical malpractice cause of action against the Doctor Defendants and Plaintiffs' wrongful death cause of action against Defendants was expressly authorized by section 1281.2, subdivision (c). We also observe that Jesse's elder abuse cause of action against Gladiolus and/or PPHC involves a relatively small subset of the parties. On the record before us, the trial court could reasonably conclude that litigation involving all of the parties and two causes of action should precede an arbitration involving two parties and one cause of action, as the litigation would be more likely to lead to a global resolution of the case.
In any event, it is not the province of this court to second-guess the trial court's evaluation of different options available under section 1281.2, subdivision (c). (Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC, supra, 150 Cal.App.4th at p. 475; Birl v. Heritage Care, LLC (2009) 172 Cal.App.4th 1313, 1322.) In many instances, there will be more than one reasonable choice and the selection of one over the other will not amount to an abuse of discretion. (Mercury Ins. Group. v. Superior Court (1998) 19 Cal.4th 332, 351 ["The reasonableness of an approach that was not selected [under section 1281.2, subdivision (c)] does not entail the unreasonableness of the one that was"].) Here, though reasonable minds may differ regarding the most efficient approach, we cannot say that the trial court's decision to stay arbitration of Jesse's elder abuse cause of action pending litigation of Jesse's medical malpractice cause of action against the Doctor Defendants and Plaintiffs' wrongful death cause of action against Defendants constitutes an abuse of discretion.
III. DISPOSITION
The order staying arbitration of the elder abuse cause of action against Gladiolus Holdings, LLC, doing business as The Pines at Placerville Healthcare Center, is affirmed. Plaintiffs Mitchell Goodis, individually and as successor in interest to Jesse Goodis, Jeffrey Goodis, Douglas Goodis, Susan Goodis, and Jamie Goodis shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/_________
RENNER, J.
We concur:
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DUARTE, Acting P. J.
/S/_________
HOCH, J.