Opinion
B242127
11-18-2013
LOS ANGLES POLICE PROTECTIVE LEAGUE, Petitioner and Appellant, v. CITY OF LOS ANGELES et al., Respondents.
Silver, Hadden, Silver, Wexler & Levine and Richard A. Levine for Petitioner and Appellant. Carmen A. Trutanich, City Attorney, and Gregory P. Orland, Deputy City Attorney, for Respondents City of Los Angeles and Charles Beck.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. BS133573)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. Jones, Judge. Reversed and remanded.
Silver, Hadden, Silver, Wexler & Levine and Richard A. Levine for Petitioner and Appellant.
Carmen A. Trutanich, City Attorney, and Gregory P. Orland, Deputy City Attorney, for Respondents City of Los Angeles and Charles Beck.
The Los Angeles Police Protective League (hereinafter LAPPL) appeals from the superior court's denial of its petition for writ of mandate. In its petition, LAPPL sought to compel the City of Los Angeles (hereafter "the City") and its Chief of Police to provide its police officers the opportunity for an administrative appeal pursuant to Government Code section 3304, subdivision (b) after allegations of biased policing are classified as "Not Resolved." We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
LAPPL is an organization that represents all police officers, detectives, sergeants, and lieutenants in the City of Los Angeles. LAPPL assists Los Angeles Police Department (LAPD) officers with matters such as working conditions and wages.
The Public Safety Officers Procedural Bill of Rights, Government Code sections 3300-3313 (POBRA), provides certain procedural rights to state peace officer employees. (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572.)
All subsequent undesignated statutory references shall be to the Government Code.
Section 3304, subdivision (b) provides that any public safety officer who is denied a promotion on grounds other than merit or who received a "punitive action" is entitled to an administrative appeal.
Section 3304, subdivision (b) provides, "No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal."
Section 3303 defines "punitive action" as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."
In the LAPD, an investigation of a complaint against an officer may result in a disposition of "Unfounded," "Exonerated," "Sustained," "Sustained—No Penalties," "Insufficient Evidence to Adjudicate," or "Withdrawn by the Chief of Police." If the investigation "discloses insufficient evidence to either prove or disprove clearly the allegations," LAPD will categorize the allegations as "Not Resolved." (Los Angeles Police Department Manual, section 820.25.) These adjudications are placed in the officers' personnel files and are used for many purposes, including performance evaluations, various reports, transfers, and during subsequent complaints.
LAPPL's Action
LAPPL claims the City's practice violates LAPD officers' rights under sections 3304, subdivision (b) and 3303. In September 2011, LAPPL filed a petition for writ of mandate and a complaint for declaratory relief in the superior court against the City and LAPD Chief Charlie Beck to order them to cease issuing "Not Resolved" adjudications to LAPD officers to establish a "pattern of conduct" by the officers without an administrative appeal.
LAPPL contends that regardless of actual harm to any LAPD officer, "Not Resolved" adjudications are "punitive actions" under section 3303 because they "may lead" to negative consequences. In support of its petition, LAPPL submitted declarations of the following people: Paul Weber, member of the LAPPL's Board of Directors, and its former president; Cliff Armas, Police Officer assigned to the Officer Representation Section; Ira Salzman, Jodi Gonda and Robert Rico, panel attorneys for the LAPPL; and John Hackman and Andres Sandoval, LAPD officers who received "Not Resolved" adjudications.
Officer Mudgett's Action
LAPD Officer Justin Mudgett claimed work-related injuries in 2007 and was classified as temporarily unable to perform work duties. In 2008, it was alleged that he provided a false statement to a doctor for purposes of obtaining benefit compensation. An investigation ensued, and a criminal case was submitted to the District Attorney but in 2010, the case was rejected. Mudgett's complaint adjudication was classified as "Unfounded" and then changed to "Not Resolved." Mudgett filed a petition for writ of mandate in the superior court in March 2011, case number BS130337.
In opposition to Mudgett's petition, the City submitted declarations from LAPD detectives who had specifically investigated the complaint against Mudgett. It also submitted the declaration of Thomas Casper, an LAPD Department advocate who supervised the staff who represented the LAPD in disciplinary hearings and administrative appeals. He stated, inter alia:
"It is true that complaints with 'Not Resolved' disposition classifications are part of an officer's disciplinary history and that complaints with such classifications are available for review when Department management is adjudicating other personnel complaints against an officer. . . . [¶] More importantly, it is not true that a 'Not Resolved' complaint disposition per se may lead to disciplinary action or be used for sustaining future complaints. It is not the complaint classification itself that may have such an effect, but rather the evidence of an officer's underlying actions that may constitute a 'pattern of conduct' that may be used to sustain a future complaint. . . . [¶¶] The cases in which associate advocates attempt to establish a pattern of conduct through prior acts or behaviors of an accused officer for the Board's consideration . . . on the current charges are rare and represent only a small percentage of the total cases presented at Boards of Rights." (Bold and italics in original.) He concluded that the "Not Resolved" disposition does not constitute "punitive action" by saying that "the possibility that the conduct underlying a 'not resolved' complaint will be used to show a pattern of conduct in the future is too remote." (Italics added.)
In addition, the City submitted the declaration of Phillip Trotter, the Commanding Officer of LAPD's Risk Management Division. He stated, "An officer could have a thousand complaints adjudicated 'not resolved' and not have the conduct underlying those disposition reveal a pattern of conduct because the conduct is dissimilar. . . 'Not resolved' complaint dispositions do not themselves ever form a pattern of conduct. However it is possible that misconduct underlying a 'not resolved' disposition could become part of a pattern of conduct that is used in adjudication of a future allegation of misconduct." He stated that in his five years of adjudicating personnel complaints, he had yet to find a single one in which he concluded that a pattern of conduct existed.
Opposition in this Case
LAPPL filed a Notice of Related Action with respect to Officer Mudgett's action.
The City and Chief Beck submitted an opposition to the petition, objecting to the evidence submitted by LAPPL. They submitted the declaration of LAPD Detective Jorge Ramos, who accessed the LAPD's annual complaint report, showing 638 "Not Resolved" allegations.
The City and Chief Beck also requested judicial notice of the Casper declaration filed in Officer Mudgett's action.
The Hearing
This matter and Officer Mudgett's matter were heard together. At the hearing, the superior court said it would not be consolidating the two matters, and ruled on them separately. ~(Aug RT 17-18)~ It granted the petition in Officer Mudgett's matter.
The City appealed the decision in Officer Mudgett's matter.
However, the court denied LAPPL's petition. It filed a Statement of Decision on May 16, 2012, which sustained many of the evidentiary objections to LAPPL's evidence, and stated inter alia, "[a]s shown by the Court's ruling on the [LAPPL's] evidentiary objections, there is no competent evidence to support the League's allegation that LAPD has a pattern or practice with regard to complaints of biased policing." It also stated that a determination of "Not Resolved" is not susceptible to "blanket or group resolution." It concluded, "[T]he claim that some [LAPD] Advocates attempt to introduce 'not resolved' complaint adjudications does not establish that the attempts were successful, much less may have led to adverse employment consequences. While it is not necessary to prove an actual adverse disciplinary action, something more than sheer speculation based on unidentified incidents is required." It held that the petition and the complaint for declaratory relief were "denied," but the subsequently filed Judgment stated that "declaratory relief is granted in favor of respondents". This appeal followed.
"(1) As to the Armas Declaration, the Court sustains Respondents' objection to the second sentence of ¶ 5. Description of the number of officers as 'numerous' is conclusory and cannot, therefore, support a claim of pattern of conduct. The Court sustains Respondents' objection to ¶ 6 as argumentative and improper opinion. The Court sustains Respondents' objection to ¶ 8 as lacking in foundation and improper opinion.
"(2) As to the Declarations of Salzman and Rico, the Court sustains the objections to the second sentence of ¶ 3 as conclusory and irrelevant. Attempts do not constitute 'punitive action.' And, use of the term 'frequently' cannot support the claim of a pattern of conduct.
"(3) As to the Declaration of Jody Gonda, Exhibit A, Respondents' objection on the ground of hearsay is sustained. The contents of this exhibit are [offered] for the truth of the matter, yet the officer and adjudicator involved [a]re not identified. . . .
"(4) As to the Declarations of John Hackman and Andres Sandoval, the Court sustains Respondents['] objections to ¶ 5 as conclusory."
CONTENTIONS ON APPEAL
On appeal, LAPPL claims that the trial court erred in denying the writ petition based on insufficient evidence. LAPPL also claims that the trial court erred in excluding from evidence LAPPL's declarations in support of its petition for writ of mandate. Finally, LAPPL contends the trial court erred in granting declaratory relief in favor of the City and Chief Beck because neither the City nor the Chief had filed a cross-complaint for declaratory relief.
We find the trial court utilized an incorrect standard in sustaining some of LAPD's objections to LAPPL's declarations and that based on the admissible evidence, the petition should have been granted.
STANDARD OF REVIEW
This court reviews the trial court's interpretation of the POBRA independently of the trial court's reading. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) We review the trial court's rulings on evidence under the abuse of discretion standard, where a trial court's evidentiary ruling must result in a "miscarriage of justice." (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
DISCUSSION
1. Applicable Case Law
In White v. County of Sacramento (1982) 31 Cal.3d 676, a deputy sheriff in the detective division was told by the department that his performance was deficient and that he would be reassigned to the patrol division. He sought a hearing before the County Civil Service Commission but his request was denied. He filed a petition for a writ of mandate with the superior court, which was denied. On appeal, the Supreme Court reversed the trial court's ruling, holding that the decision to reassign to a lower paying position was punitive in nature and thus the officer must be accorded the opportunity for an administrative appeal pursuant to section 3303. (Id. at pp. 683-684.) The court considered the purpose of POBRA, which is to assure the maintenance of stable employer-employee relations, and thus to secure "effective law enforcement services" for the people of the state. It concluded that an erroneous review could "foster disharmony, adversely affect discipline and morale in the workplace, and, thus, ultimately impair employer-employee relations and the effectiveness of law enforcement" and thus the officer was entitled to the right of administrative appeal. (Ibid.)
In Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, a citizens review board report containing negative findings was placed in an officer's personnel file. The superior court denied the officer's petition for writ of mandate requesting the opportunity for an administrative appeal. The court of appeal reversed, focusing on the possible impact of placing the report in the officer's personnel files. (Id. at p. 351.) It based its decision in part on the testimony of the chief of police that a report in the personnel package would impact the career opportunities of the officers. The personnel package was available for any kind of promotion, and would be considered a "mark against them." (Id. at p. 353.) The court concluded there was a "potential impact" on future career opportunities even if a single entry of report was made at the time. Thus, the report constituted a punitive action as set forth in sections 3303 and 3304.
In Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, county sheriff deputies and their association brought a petition for writ of mandate to compel the county and county civil service commission to allow administrative appeals after the citizens' law enforcement review board issued findings of serious misconduct against the deputies. The deputies alleged the findings caused them harm which amounted to a deprivation of their Fourteenth Amendment liberty interests. They also asserted that the findings of misconduct constituted punitive action under section 3300, entitling them to administrative appeals. The trial court denied the petition, finding, inter alia, the deputies failed to show punitive action. (Id. at p. 1216-1217.)
On appeal, the court concluded the board's reports may impact personnel decisions adversely. This was established by an unrebutted declaration from the head of the sheriff's department human resources bureau which stated that the promotion process is extremely competitive, and that a single blemish can prevent advancement. He admitted that findings made by the board would be given consideration in personnel decisions. He did not cite specific instances where the board's findings were considered. (Caloca v. County of San Diego, supra, 72 Cal.App.4th at pp. 1220-1221.) The court concluded, "The statute does not require a showing an adverse employment consequence has occurred or is likely to occur, merely that actions 'may lead' to such a consequence" (id. at p. 1223) and thus the deputies were entitled to administrative appeals under section 3304.
In Otto v. Los Angeles Unified School District (2001) 89 Cal.App.4th 985 two public safety officers had "summary of conference memos" placed in their personnel files, which memorialized meetings with supervisors. One had to do with the improper use of the department voice mail tracking system, the other had to do with a recommendation to the officer to improve his communications skills and to go through the proper procedure in department matters. The officers, seeking the right of an administrative appeal, filed a writ petition with the superior court. Declarations from two other police officers from the department stated that documents in the personnel files were and had been utilized for personnel decisions. One officer related two of his own personal experiences with summary of conference memoranda. (Id. at pp. 992-993.) The Court of Appeal found that whether the summary of conference memoranda constitutes a punitive action depends on its content. One of the conference memoranda included a warning that further failure to use the voicemail system properly could lead to future disciplinary action. The other memorandum contained only a recommendation to improve skills and to go through proper departmental channels, and thus was considered an education reminder, and not a punitive action. (Id. at pp. 998-999.)
In Hopson and Caloca, the considerations were whether the allegedly punitive action could be considered in future personnel decisions and whether it could impact the officer negatively. The test was not one of actual harm. The evidence relied upon in each of these cases did not consist of an officer's declaration that punitive action had been taken, but instead came from department superiors who admitted that the action might be considered in the future. Thus it is not necessary to show that an action will result or has resulted in adverse consequences, only that a possibility exists that it could.
Here, unlike the conference memoranda in Otto which contained differing content, the "Not Resolved" adjudications are labels without explanation which could have negative consequences or may be misinterpreted. What LAPPL seeks to prevent is the possibility that a "Not Resolved" adjudication is viewed together with other "Not Resolved" adjudications, creating the inference that there must be some truth to the allegations. We therefore do not agree with the trial court's conclusion that the use of the classification can only be evaluated on an individual basis.
In addition to "Not Resolved" adjudications, there are "Insufficient Evidence to Adjudicate" and "Unfounded" categories.
In light of the case law establishing what needs to be shown under section 3304 in order to be entitled to an administrative appeal, we will reexamine the trial court's rulings on the evidence that LAPPL offered.
2. The Trial Court's Evidentiary Rulings
A. The Cliff Armas declaration
Cliff Armas declared that he was employed with the LAPD since 1975 and in 1999 was assigned to the "Officer Representation Section of the Office of Administrative Services." The trial court sustained City's objections to various parts of Cliff Armas's declaration. The first relevant portion of the declaration reads:
I have represented numerous officers of whom the Los Angeles Police Department has sustained personnel complaints and imposed disciplinary suspensions under circumstances where the accused officer has denied the alleged misconduct and there were no independent witnesses, simply on the basis that there existed prior "Not Resolved" personnel complaint(s) upon which the Department concluded that the subsequent alleged misconduct was consistent with an established [ ] pattern of conduct.
The trial court ruled that the word "numerous," quoted above, was "conclusory." In its opening brief, the LAPPL argues that the trial court erred because the word "numerous" was not used to establish a quantity. Instead, LAPPL argues that it was used only to suggest that Cliff Armas had experience with situations where LAPD had officers who suffered negative consequences for having "Not Resolved" adjudications in their personnel files.
We agree with LAPPL that the trial court erred in excluding the quoted portion of the declaration. While the word "numerous" is not specific, it is apparent from the context that the declarant did not aim to establish a quantity. Instead, the declaration was offered to provide evidence that "Not Resolved" adjudications could result in negative consequences for LAPD officers. The term "numerous" includes at least one situation that the declarant swore under penalty of perjury to have encountered during his tenure at the LAPD. Even one similar situation constitutes admissible evidence that could have assisted the LAPPL in making its case. In fact, the declarations which were relied upon in the Caloca and Hopson cases did not contain recitations of specific instances in which the disciplinary action resulted in a punitive action against an officer. In Hopson, the chief of police testified that if the report in question were hypothetically placed in the officers' files, they would be considered a mark against them. (139 Cal.App.3d at pp. 352-353.) In Caloca, the human resources officer from the sheriff's department did not testify about a specific report or of his personal knowledge of a punitive action, but stated that negative reports would be given consideration and could have an adverse impact. (72 Cal.App.4th at pp. 1220-1221) His declaration was admitted into evidence. Therefore, in this case the trial court abused its discretion for striking the quoted portion of Armas's declaration from evidence.
The trial court also sustained the City's objection to paragraph 6 of Armas's declaration as argumentative and improper. The paragraph reads:
The utilization by Los Angeles Police Department management of prior "Not resolved" personnel complaint dispositions in order to prove the existence of a subsequent complaint of misconduct and/or as a basis of formulating disciplinary penalties is extremely prejudicial to the accused officer in light of the faded recollections and/or the availability of percipient witnesses to refute the alleged facts and circumstances of such prior "Not Resolved" complaints.
Evidence Code section 800 mandates that a lay witness may present opinion testimony only if that opinion is "rationally based on the perception of the witness" and it is "helpful to a clear understanding of his testimony." We agree with the LAPPL that given Armas's experience at the LAPD, his opinion is rationally based on his perception. In fact, we fail to see how the trial court could have reached the opposite conclusion because the court had no evidence questioning the veracity of Armas's declaration. Therefore, paragraph 6 of the Armas declaration should have been admitted into evidence.
B. The declarations of Ira Salzman and Robert Rico
Both Salzman and Rico stated in their declarations that they were panel attorneys for the LAPPL and have represented numerous peace officers on personnel complaints. They stated that the Board of Rights is authorized to accept evidence of prior acts of accused officers, "irrespective of the resolution of the complaint, if relevant to the charges, such as if tending to proved that the conduct charged is consistent with a pattern of conduct."
The sentence that the trial court struck from evidence is present in both declarations. It reads:
It has been my experience that Police Department advocates, relying on [the Board of Rights Manual] Section 363.50, frequently attempt to establish a pattern of conduct by introducing prior "Not Resolved" complaint adjudications for the purpose of proving a subsequent complaint against an accused Police Officer.)~
The superior court ruled that the term "frequently" was "conclusory and irrelevant," and that "attempts" do not constitute punitive action. It is apparent from the context that the declarants conveyed that in their experience they have encountered scenarios where the LAPD relied on "Not Resolved" adjudications to establish a pattern of conduct by the police officers. They were not attempting to establish a fixed number of events. The relevant fact was that a "Not Resolved" adjudication was relied upon in a disciplinary proceeding to establish a case against an officer accused of misconduct. Therefore, it was an error for the trial court to strike the above quoted sentence from the Salzman and Rico declarations as conclusory and irrelevant.
Furthermore, the court mistakenly ruled that "attempts do not constitute 'punitive action,'" and do not trigger the right of administrative appeal. LAPPL correctly notes Caloca v. County of San Diego, supra, provides that section 3304, subdivision (b) does not require the actual occurrence of an adverse employment action to allow police officers to administratively appeal the adjudication. "Punitive action" under section 3304, subdivision (b) has been interpreted to mean "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (Caloca, supra, 72 Cal.App.4th at p. 1220; italics in original.) The declarations stated that "Not Resolved" adjudications are used to establish a pattern of conduct by the police officers under scrutiny. Thus, "Not Resolved" adjudications "may lead to" consequences enumerated in section 3304, subdivision (b). As such, "Not Resolved" adjudications are "punitive actions," entitling police officers to appeal under the law. This evidence in the Salzman and Rico declarations should have been admitted into evidence.
C. The declaration of Jody Gonda
LAPPL submitted Jody Gonda's declaration, in which he stated that he represented an accused officer during the complaint investigation and attached, as Exhibit A, a copy of a redacted LAPD personnel complaint.
Gonda stated he had personally been involved in hearings where "Not Resolved" complaints have been used to demonstrate a pattern of conduct in an attempt to show an officer is guilty of current allegations involving similar misconduct.
Exhibit A contains a complaint form which describes the allegations, and the details of the incident and that the action was disciplinary. The administrative insight portion of the complaint indicates that the officer had two prior complaints which received dispositions of "Not Resolved." The form states as to each complaint that although the investigation was classified as "Not Resolved," the allegations bear some similarities to the allegations in the complaint. The trial court sustained the City's objection to introducing Exhibit A into evidence since foundational information was redacted.
In its opening brief, LAPPL argues that Exhibit A was admissible under the Evidence Code section 1280 hearsay exception. The statute makes records made by public employees admissible into evidence despite their hearsay nature. However, Evidence Code section 1280 sets foundational requirements that must be met before a record made by a public employee can be admitted into evidence. First, the writing must be "made by and within the scope of duty of a public employee." Second, the writing must be "made at or near the time of the act, condition, or event." Lastly, the "sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1280.)
Exhibit A fails to meet foundational requirements to be admitted into evidence. There is no information as to who made the record and the scope of his or her authority, there is no indication when the writing was made, and there is no indicia of trustworthiness in the document warranting its admission into evidence under Evidence Code section 1280. LAPPL argues in its brief that the information was redacted from the Personnel Complaint to protect the confidentiality of the public employees under Penal Code sections 832.7 and 832.8. However, the City correctly notes that Penal Code sections 832.7 and 832.8 apply only to the disclosure of confidential information by the governmental agencies, which exclude LAPPL. Thus, LAPPL was not bound by those sections to redact the information necessary to lay the proper foundation under Evidence Code section 1280. Hence, the trial court correctly excluded Exhibit A from evidence.
The statements made by Gonda, however, that he was personally involved in a disciplinary proceeding where "Not Resolved" adjudications were used was relevant and admissible to show that such a scenario was possible.
D. The declarations of John Hackman and Andres Sandoval
The paragraph that the trial court struck from evidence in both declarations is identical. It reads:
Unless and until the Court requires the Los Angeles Police Department to provide an opportunity for administrative appeal respecting such "Not Resolved" complaint adjudications, [o]fficers as myself will be unable to timely administratively challenge such stigmatizing allegations.
The trial court sustained the City's objection to the above quoted paragraph as "conclusory." Both Hackman and Sandoval declared that they have served in the LAPD for approximately five years, have received adjudications of "Not Resolved," and have the "understanding" that the LAPD uses "Not Resolved" adjudications to establish a pattern of conduct.
As we explained while discussing the Cliff Armas declaration, Evidence Code section 800 allows lay opinion into evidence if it is rationally based on a witness's perception and it is helpful to understanding the witness's testimony. Under the standard used by section 3304 and the cases which have applied it, these declarations establish that there is a potential for the "Not Resolved" adjudications to result in punitive action. As such, the declarants' statements that Not Resolved classifications may be used to show a pattern of conduct constituted admissible opinion evidence.
E. Thomas Casper declaration
Thomas Casper's declaration, which was submitted in the Officer Mudgett case, was incorporated by reference in the City's opposition to the petition. The superior court did not rule on this request for judicial notice. Casper states that complaints with Not Resolved classifications are available for review when personnel complaints are ruled upon and that evidence of underlying actions may be used to sustain a complaint if there is a pattern of conduct. Under the standards of Hopson and Caloca, this declaration established the right to administrative appeal under section 3303.
3. Conclusion
Since we have concluded that the trial court erroneously sustained objections to portions of the Armas, Salzman, Rico, Gonda, Hackman, and Sandoval declarations, we review the evidence presented by LAPPL in support of its petition. Viewed in this light, it is clear LAPPL established that there are times and situations when a Not Resolved classification could be used as unfavorable evidence against an officer. Under the standard enunciated by Caloca, supra, 72 Cal.App.4th at page 1223, that is, whether the personnel action may lead to adverse consequences, the declarations establish that Not Resolved adjudications should trigger the right to an administrative appeal.
As a result, the trial court's order denying LAPPL's petition was in error.
As a result of this ruling, we need not address the contention that the judgment erroneously granted declaratory relief in favor of respondents, but do note that LAPPL is correct that the City and Chief Beck did not seek declaratory relief by way of a cross-complaint.
DISPOSITION
The trial court shall vacate its order denying LAPPL's petition and enter a new and different order granting the petition. LAPPL shall recover its costs on appeal.
WOODS, Acting P. J.
We concur:
ZELON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
--------