Opinion
D071668
03-22-2018
ANNE L. HOPPE, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.
Gilleon Law Firm, James C. Mitchell, and Marlea F. Dell'Anno for Plaintiff and Appellant. Mara W. Elliot, City Attorney, George F. Schaefer, Assistant City Attorney, and Laura M. DePoister, Deputy City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2015-00021801-CU-OE) APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed. Gilleon Law Firm, James C. Mitchell, and Marlea F. Dell'Anno for Plaintiff and Appellant. Mara W. Elliot, City Attorney, George F. Schaefer, Assistant City Attorney, and Laura M. DePoister, Deputy City Attorney, for Defendant and Respondent.
Anne Hoppe appeals a summary judgment in favor of her employer, the City of San Diego (the City), in her lawsuit alleging gender discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) based on the promotion of male candidates instead of her to each of four open positions over a period of six years. The trial court determined that section 12960, subdivision (d) barred Hoppe's claims because Hoppe failed to file an administrative complaint with the Department of Fair Employment and Housing (DFEH) within one year of each date the City failed to promote Hoppe. Hoppe asserts the trial court erred in reaching that conclusion because she filed her administrative complaint within one year of when the City announced who was promoted to the two most recent positions, and because the continuing violations doctrine applies to preserve her two earlier claims. Because the trial court correctly determined that section 12960, subdivision (d) bars Hoppe's claims, and no triable issue of material fact exists, we affirm the judgment.
All further statutory references are to the Government Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
We derive the facts primarily from the undisputed facts set forth in Hoppe's response to the City's separate statement of facts supporting its motion for summary judgment.
Hoppe began working for the City as a senior survey aide in the public works department in 1989. The City promoted her to assistant land surveyor in 1993 or 1994 and to associate land surveyor in 1998.
From March 2007 to April 2008, Hoppe worked temporarily as the acting senior land surveyor in the development services department. Around that time, the City began accepting applications to permanently fill the position. Hoppe applied for the position in November 2007 and the City interviewed her in February 2008. From a pool of four candidates, the City selected G.H., a male candidate who was then employed with the City of Chula Vista.
On April 7, 2008, Hoppe filed a complaint with the City's Equal Employment Investigations Office (EEIO), alleging gender discrimination based on the City's promotion of G.H. instead of her. After an investigation, the EEIO notified Hoppe that there was insufficient evidence to support her claim, and that she could appeal the EEIO's decision to the Civil Service Commission (CSC). Hoppe did not appeal or take any further action at that time.
In 2012, the City began accepting applications for another senior land surveyor position, and Hoppe applied again. After interviewing Hoppe and six other candidates, the City selected a male candidate (R.M.). The City notified Hoppe of its selection in April 2013. Hoppe did not file a complaint with the EEIO or take any other action at that time.
In 2013, two more senior land surveyor positions became available, one in the public works department and one in the development services department. Hoppe applied for both positions in September 2013. The City interviewed Hoppe in December 2013, along with 12 other candidates. Hoppe was one of six individuals invited back for a second round of interviews, but she was not hired for either position. On January 17, 2014, Hoppe and some other unsuccessful candidates each received an e-mail from the City notifying them that they had not been selected for either position. Upon discussing the e-mails with her colleagues (including the successful male applicants), Hoppe learned that the City selected F.L. and J.B. for the two positions. The City sent out memoranda announcing their promotions on February 5 and 13, 2014, respectively.
Hoppe filed a complaint for gender discrimination with the EEIO on November 24, 2014—311 days after she received the January 17 e-mail from the City. By letter dated April 14, 2015, the EEIO indicated it found insufficient evidence to support the allegations of discrimination and notified Hoppe that she could appeal the decision to the CSC. Hoppe did not appeal.
Instead, Hoppe filed an administrative complaint with the DFEH on June 22, 2015—61 days after receiving the letter from the EEIO on April 22, 2015. The DFEH issued a right-to-sue letter and Hoppe filed a civil complaint against the City shortly thereafter, alleging gender discrimination and failure to prevent gender discrimination in connection with the 2008, 2013 and 2014 promotions.
The City filed a motion for summary judgment contending Hoppe's claims were barred because she failed to timely exhaust her administrative remedies by filing her administrative complaint with the DFEH within one year of the January 17 e-mail from the City. The trial court found that the statutory one-year period for filing an administrative complaint with the DFEH ran from January 17, 2014; Hoppe did not timely file her administrative complaint as required under section 12906, subdivision (d); and the continuing violations doctrine did not apply. Finding Hoppe's claims barred, the court granted the City's motion and entered judgment in the City's favor.
Hoppe appeals.
DISCUSSION
Hoppe asserts the trial court erred in granting summary judgment because she raised triable issues of fact regarding the date when her claims accrued and the applicability of the continuing violations doctrine.
I. Summary Judgment Standard of Review
The trial court properly grants a motion for summary judgment when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the burden of proof and must establish that a reasonable trier of fact could not find any relevant underlying fact in favor of the opposing party in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) We review the trial court's decision granting summary judgment de novo, and independently examine the record to determine whether triable issues of fact exist, viewing the evidence in the light most favorable to the party against whom summary judgment was granted. (See Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Aguilar, supra, 25 Cal.4th at p. 860.)
II. Statutory Timeline for Filing Claims Pursuant to FEHA
FEHA makes it unlawful for an employer to discriminate against an employee based on gender, among other protected classes. (§ 12940.) Before filing a civil lawsuit pursuant to FEHA, the aggrieved employee must exhaust his or her administrative remedies by filing a timely complaint with the DFEH. (Rojo v. Kliger (1990) 52 Cal.3d 65, 83; Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412-1413 (Acuna).) Specifically, a party claiming discrimination or harassment in violation of FEHA must file an administrative complaint with the DFEH within one year of the date that the alleged discriminatory or harassing conduct occurred. (§ 12960, subd. (d).)
There is also a requirement to file a civil lawsuit within one year of receiving a right-to-sue notice from DFEH in response to an administrative complaint. (§ 12965, subd. (b); Acuna, supra, 217 Cal.App.4th at p. 1413.) This statute of limitations requirement is not at issue in this case.
The timely filing of an administrative complaint with the DFEH is a jurisdictional requirement; failure to comply precludes an employee from bringing a lawsuit claiming a FEHA violation and is a ground for summary judgment in favor of the defense. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 (Romano); Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)
III. Analysis
Hoppe contends that her two claims regarding the City's failure to promote her in 2014 are timely because these claims accrued in February 2014 (when the City announced who was hired), and they were equitably tolled while she pursued her internal complaint with the City. Hoppe concedes that she did not file an administrative complaint with the DFEH within one year of the City's decisions not to promote her in 2008 and 2013, but she asserts that these claims are timely under the continuing violations doctrine. To evaluate Hoppe's claims, we therefore need to determine when her claims accrued and whether any otherwise untimely claims are saved by the continuing violations doctrine.
A. Accrual of Hoppe's Claims
If we exclude the time it took to evaluate Hoppe's internal administrative complaint, Hoppe's claims regarding the City's 2014 promotion decisions are timely if they accrued in February 2014, but untimely if they accrued in January 2014. Hoppe contends her claims were not actionable until February 5, 2014 and February 13, 2014, when the City formally announced who it hired for the two senior land surveyor positions. The City contends Hoppe's claims accrued on January 17, 2014, when the City informed her that she had not been selected for either of the two positions. We conclude that Hoppe's claims regarding the 2014 promotions accrued on January 17, 2014, and her claims are therefore untimely even with equitable tolling.
(See McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 103-106 [equitable tolling may apply while an employee voluntarily pursues an internal administrative remedy prior to filing a complaint for FEHA violations].)
It is undisputed that Hoppe's earlier claims regarding the City's 2008 and 2013 promotion decisions are untimely unless the continuing violations doctrine applies.
Because we conclude Hoppe's claims accrued on January 17, 2014, her DFEH claim was filed at least seven days late: 311 days ran from January 17, 2014 to November 24, 2014 (when she filed her internal complaint), then 61 days ran from the time she received notice that her internal complaint was denied to the time that she filed her DFEH complaint, for a total of 372 days.
There are different types of unlawful practices that can give rise to cognizable claims under the FEHA. Because a plaintiff must file an administrative claim with the DFEH within one year from the date of the occurrence of the alleged "unlawful practice" (§ 12960, subd. (d)), and because there are different types of unlawful practices, different events may trigger the one-year statutory period for filing an administrative complaint depending on the specific allegations in a case.
Here, Hoppe asserts gender discrimination based on the City's failure to promote her to four different positions in 2008, 2013 and 2014. Although the alleged "unlawful practice" consists of the City's wrongful denial of her promotions, Hoppe contends that the wrongful conduct did not occur when the City made its decision to deny her a promotion, but rather when the City announced who was hired instead of her. For the two most recent promotions, Hoppe therefore contends the unlawful practice occurred when the City formally announced the promotions of J.B. and F.L. in February 2014.
Hoppe asserts a line of cases addressing wrongful discharge and denial of tenure claims are instructive here. (See Romano, supra, 14 Cal.4th at pp. 493-500; Acuna, supra, 217 Cal.App.4th at pp. 1418-1419; Aviles-Rodriguez v. Los Angeles Community College Dist. (2017) 14 Cal.App.5th 981 (Aviles-Rodriguez).) We disagree.
In Romano, our Supreme Court concluded that the statute of limitations under FEHA for a claim of unlawful termination ran from the time an employee was actually terminated, not from the time he was notified of his termination over two years before his actual termination. (Romano, supra, 14 Cal.4th at p. 493.) The court reasoned the employee had not actually been harmed by the unlawful practice—i.e., termination or "discharge"—until his employer terminated him. (Ibid.) In other words, the statutory one-year period is triggered when the specific unlawful practice at issue has "occurred." As the court explained: "If the administrative complaint must be filed within one year 'after' the unlawful practice—here, a discharge—'occurred,' then for the purpose of that complaint, the administrative cause of action must accrue and the statute of limitations must run from the time of actual termination. It would not run from the earlier date of notification of discharge, because on that date the unlawful practice (that is, the discharge) had not yet 'occurred.' " (Ibid.) The court found that its interpretation was consistent with the plain meaning of the statute and with the statute's remedial purpose, noting that an earlier accrual date "would promote premature and potentially destructive claims" by employees "seeking a remedy for a harm that had not yet occurred." (Id. at pp. 493-494.)
We find Hoppe's reliance on Romano, and other similar cases, to be misguided. Each of those cases involves a claim based on a discriminatory discharge and turns on the interpretation of the term "discharge" under FEHA. (Romano, supra, 14 Cal.4th at pp. 494, 500 [holding that an unlawful discharge occurs on the actual date of termination, as opposed to the date of notification, based on its interpretation of the term "discharge" in the FEHA statute]; Acuna, supra, 217 Cal.App.4th at pp. 1418-1419 [relying on Romano to conclude that a claim alleging retaliatory termination accrues when an employee is actually terminated]; Aviles-Rodriguez, supra, 14 Cal.App.5th at pp. 988-989 [applying Romano to determine that the one-year period to file a DFEH complaint runs from the date of termination of a professor rather than the earlier date on which he was notified that he was denied tenure].)
Unlike wrongful discharge cases, Hoppe's claims here are based on the City's alleged discriminatory actions in failing to promote her. The alleged discriminatory act necessarily occurred when the City made its decision not to promote Hoppe—on January 17, 2014—giving rise to a cognizable claim under FEHA. The Court of Appeal's decision in Williams v. City of Belvedere (1999) 72 Cal.App.4th 84 (Williams), is instructive. In Williams, the plaintiff applied for a position as a police officer and was notified by letter that he was not selected for the position in June 1994. The court found that the plaintiff's subsequent DFEH complaint was untimely, rejecting his claim that the statutory period ran from the time the position was filled (in October 1995) and he learned that race may have played a role in the hiring process, rather than the date he was notified he would not be hired. (Id. at pp. 90-92.) Similarly, in this case, "the plain wording of sections 12940 and 12960" (id. at p. 92) supports the conclusion that Hoppe's claims accrued when she was notified by e-mail that she was not selected for either of the two open positions.
Notably, the Williams court determined that plaintiff's claim accrued when he knew he was not selected despite the "harshness" this created given the fact that he did not learn that race may have played a factor until after the time for filing a timely administrative claim had already passed. (Williams, supra, 72 Cal.App.4th at pp. 92-93.) By contrast, no such harsh consequences result in this case. The City notified Hoppe of its decision not to hire her on January 17—the same day she learned that the City selected two men for the positions. Although the City did not make formal announcements regarding those promotions until February 5 and 13, Hoppe was clearly aware of the alleged discriminatory act on January 17.
Unlike the concerns identified in Romano, our conclusion that Hoppe's claim accrued when the City notified her of its decision not to promote her will not result in "unripe and anticipatory lawsuits," or the filing of lawsuits when harm has "not yet occurred." (Romano, supra, 14 Cal.4th at pp. 493-494, 497-498). As of January 17, the City's alleged acts of discrimination had already occurred. Hoppe knew a final decision had been made not to hire her, and she allegedly suffered resulting harm at that time. The City's subsequent formal announcements in February that J.B. and F.L. were selected had no bearing on whether Hoppe's claim was ripe or premature.
In summary, the trial court correctly concluded that section 12960, subdivision (d) bars Hoppe's most recent claims because she did not file her administrative complaint with the DFEH within one year of January 17, 2014, the date that those claims accrued.
B. Continuing Violations Doctrine
Under the continuing violations doctrine, "an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056 (Yanowitz).) The doctrine protects a plaintiff who may not immediately suspect unlawful conduct because the conduct at issue has not yet matured into a recognizable claim. (Id. at p. 1058.) "A continuing violation may be established by demonstrating 'a company wide policy or practice' or 'a series of related acts against a single individual.' " (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 64 (Morgan).) Only the second category of continuing violations is alleged to apply here. To invoke the continuing violations doctrine where an employer engages in repetitive violations of an employee's FEHA rights, the evidence must show the employer's actions were "(1) sufficiently similar in kind . . . ; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811-812, 823 (Richards).)
The parties disagree on whether the continuing violations doctrine applies to the type of "unlawful practice" Hoppe has alleged in this case. Hoppe contends that the City seeks to impose a bright-line and categorical bar to applying the continuing violations doctrine in those FEHA cases involving a discriminatory failure to promote an employee, contrary to the holdings in Richards and Romano. Relying on National R.R. Passenger Corp. v. Morgan (2002) 536 U.S. 101, 113-114, the City contends that the continuing violations doctrine does not apply to discrete actions (i.e., separate failures to promote), and that the holding of Richards is limited to FEHA claims for failure to accommodate and harassment.
We agree with Hoppe that the Richards holding is not limited to harassment claims and claims involving the discriminatory failure to accommodate. Nonetheless, we conclude there is no material issue of fact that the continuing violations doctrine does not apply to save Hoppe's untimely claims in this case, and the three-part Richards test has not been met.
In Yanowitz, the California Supreme Court declined to follow the holding in National R.R. Passenger Corp. v. Morgan that the continuing violations doctrine applies only to claims for hostile environment and not to claims stemming from discrete acts of discrimination. (Yanowitz, supra, 36 Cal.4th at pp. 1058-1059.)
As an initial matter, it is important to consider the California Supreme Court's reasoning for declining to limit the continuing violations doctrine to only harassment claims. In Yanowitz, the court found that the plaintiff's retaliation claims were not time barred where the plaintiff, who was a regional sales manager, refused to fire a female sales associate in 1997 who the general manager deemed was not attractive enough. (Yanowitz, supra, 36 Cal.4th at p. 1038.) Beginning in April 1998, the general manager began to solicit negative comments about the plaintiff from her subordinates, frequently criticized her management style, and refused to allow her to answer these charges during a July 1998 meeting, ultimately resulting in her departure. (Id. at pp. 1039-1040.) Although the plaintiff did not file her complaint with the DFEH until June 1999, the court found that the continuing violations doctrine could apply to impose liability for actions that occurred prior to June 1998 because the plaintiff alleged a course of conduct in which the defendant solicited or fabricated negative information, and then used the information to intimidate, disempower, and punish the plaintiff. (Id. at p. 1059.)
The court in Yanowitz repeatedly relied on the existence of a "course of conduct"—as opposed to "discrete" acts—to support its analysis. Summarizing its prior rulings in Richards and Romano, the court noted: "we already have recognized that when the requisite showing of a temporally related and continuous course of conduct has been established, it is appropriate to apply the continuing violation doctrine to disability accommodation claims, as well as to harassment claims." (Yanowitz, supra, 36 Cal.4th at p. 1058.) Turning to the plaintiff's specific allegations, the court stated that "the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation." (Ibid.) The court determined that the continuing violations doctrine should be available "where the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation" to avoid "encouraging early litigation and the adjudication of unripe claims." (Id. at pp. 1058-1059.) The court therefore concluded application of the continuing violations doctrine in retaliation cases is permissible "if the requisite showing of a continuing course of conduct has been made." (Id. at p. 1059.)
The same policy concerns that informed the court's analysis in Richards, Romano and Yanowitz are not applicable here. The City's discrete acts in failing to promote Hoppe in 2008, 2013 and 2014 do not constitute a continuous course of conduct. This was not a case involving a plaintiff who was unable to identify with certainty when harm had occurred or had risen to a level sufficient to warrant action. (Cf. Yanowitz, supra, 36 Cal.4th at p. 1058; Richards, supra, 26 Cal.4th at pp. 820-821.) Each of the City's decisions gave rise to a ripe claim of alleged discrimination that was "actionable standing alone." (Yanowitz, supra, 36 Cal.4th at p. 1058.) Although our decision does not foreclose the possibility that an employee may be able to successfully invoke the continuing violations doctrine in a failure to promote case, Hoppe cannot do so here where she has failed to establish "a temporally related and continuous course of conduct." (Ibid.)
In any event, the trial court correctly concluded that the facts as alleged in this case fail to meet the three-part test of Richards. The first factor requires a showing of sufficient similarity among the alleged discriminatory actions. In Morgan, the court found that the continuing violations doctrine did not apply where the plaintiff had applied for 32 jobs between 1995 and 1996 after a layoff, and he was not hired despite having preferential rehire rights for employment. (Morgan, supra, 88 Cal.App.4th at pp. 52, 58.) The court found that the unlawful acts were insufficiently similar in kind, reasoning that the hiring decisions were isolated employment decisions "made by different decision makers in unrelated departments of the University regarding positions with varying job requirements." (Id. at p. 65.) Similarly, here, the evidence shows that the City's promotion decisions were dissimilar because they were "made by many different decision makers, with no evidence the decisions were connected to each other in any way." (Id. at pp. 66-67.) The available positions were in at least two different departments and each position had a separate application process, with different candidates and different interview panels (although one City employee was part of all three panels). There is no evidence that the decision to hire G.H. instead of Hoppe for the position in 2008 was related to the decisions to hire R.M., J.B. or F.L. instead of Hoppe five to six years later in 2013 and 2014.
The second inquiry under Richards is whether the discriminatory acts alleged to be part of a continuing violation "have occurred with reasonable frequency." (Richards, supra, 26 Cal.4th at p. 823.) Here, there was a five-year gap between the City's second denial of Hoppe's promotion in 2013 and its decision not to promote her in 2008. Hoppe identifies only four instances of discrimination over a six-year period, which can best be described as sporadic rather than frequent in that time span. The allegedly discriminatory acts therefore did not occur with reasonable frequency to constitute a continuing violation. Hoppe nonetheless contends that the "reasonable frequency" prong was met because there were no other promotion opportunities for senior land surveyor during this period. Even assuming the frequency of an alleged unlawful action can be evaluated by reference to the number of promotion opportunities available over a multi-year period, we conclude Hoppe has failed to meet the final requirement of the Richards test.
The third inquiry under Richards focuses on whether the alleged unlawful actions have "acquired a degree of permanence." (Richards, supra, 26 Cal.4th at p. 823.) "Permanence" in this context means that an employer's statements and actions make clear to a reasonable employee that any further efforts to end the alleged discrimination will be futile. (See ibid.) Here, the 2008, 2013 and 2014 decisions on whether to promote Hoppe became permanent when a different applicant was hired. (See Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1043 [plaintiff's loss of job duties for allegedly discriminatory reasons became permanent when her job title changed].) At that time, the City's actions acquired a degree of permanence sufficient to put Hoppe on notice to assert her rights. (Richards, supra, 26 Cal.4th at p. 823.)
Hoppe contends that, after the first denial, she remained hopeful that she would be promoted in the future. She claims it was not until she was denied the fourth promotion that she concluded further efforts would be futile. Although an employer's ongoing efforts to resolve an employee's grievance may show a lack of "permanence" within the meaning of the Richards test, there was no evidence in this case of any such efforts. On the contrary, the City concluded in response to Hoppe's 2008 internal complaint that there was no evidence to support her allegations of discrimination. Hoppe's untimely failure to promote claim is not revived merely by the existence or possibility of future promotion opportunities. As in Morgan, Hoppe's allegations concern a number of specific job applications where she was considered and rejected for promotion. Each decision was discrete and permanent when made. The fact that Hoppe was not convinced until 2014 that the City would never promote her does not mean that her failure to secure past promotions in 2008 and 2013 was not final. Therefore, the discriminatory acts that occurred during these earlier dates acquired a degree of permanence that precludes application of the continuing violations doctrine. We find there are no triable issues of fact regarding the correct application of the Richards test (assuming it applies in this case). Each of the City's four decisions not to promote Hoppe over the subject six-year period constituted a discrete act that reached a state of permanence at the moment the City failed to promote Hoppe.
Moreover, the only way to cure the alleged harm would be to grant Hoppe the sought-after promotion; subsequently promoting an employee to another position does not cure a prior discriminatory denial of a promotion. --------
In summary, the trial court correctly concluded that the continuing violations doctrine does not apply in this case to allow Hoppe to pursue employment discrimination claims based on the promotions that the City denied to her in 2008 and 2013. In any event, Hoppe would only be able to pursue the 2008 and 2013 claims under the continuing violations doctrine if they relate to a later claim that she pursued in a timely manner. (See Yanowitz, supra, 36 Cal.4th at pp. 1058-1059.) As indicated above, Hoppe failed to timely file her DFEH complaint after she was denied the promotions in 2014. Consequently, even if we were to find the continuing violations doctrine applicable, Hoppe's failure to exhaust her administrative remedies within one year of the most recent occurrence would bar her from pursuing both her most recent claims from 2014 and her previous claims from 2008 and 2013. Accordingly, none of Hoppe's claims is timely under section 12960, subdivision (d) and the trial court properly granted judgment in the City's favor based on Hoppe's failure to exhaust her administrative remedies. We find no issue of fact requiring trial and affirm the judgment.
DISPOSITION
The judgment is affirmed. The City shall recover its costs on appeal.
GUERRERO, J. WE CONCUR: BENKE, Acting P. J. AARON, J.