Opinion
D075721
06-09-2020
JAMES LINLOR, Plaintiff and Appellant, v. GEICO GENERAL INSURANCE COMPANY, Defendant and Respondent.
James Linlor, in pro. per., Plaintiff and Appellant. Law Office of Mark W. Hansen and Mark W. Hansen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2017-00049449-CU-IC-NC) APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed. James Linlor, in pro. per., Plaintiff and Appellant. Law Office of Mark W. Hansen and Mark W. Hansen for Defendant and Respondent.
I.
INTRODUCTION
Plaintiff James Linlor, appearing in propria persona in both the trial court and on appeal, appeals from a final judgment entered after the trial court dismissed his action against defendant GEICO General Insurance Company (GEICO). The court dismissed the action because Linlor failed to post the security ordered by the trial court after the court declared Linlor to be a vexatious litigant. Linlor also challenges the trial court's imposition of monetary sanctions against him with respect to four discovery orders.
We affirm the trial court's judgment. As an initial matter, we conclude that Linlor has forfeited his contentions on appeal by failing to comply with applicable Rules of Court and basic tenets of appellate practice. However, even if we were to consider Linlor's contentions on their merits, we would conclude that they fail.
II.
BACKGROUND
Linlor filed a lawsuit against GEICO, his automobile insurance carrier, on December 22, 2017, alleging causes of action for breach of contract and insurance bad faith. The action stemmed from Linlor's dissatisfaction with the manner in which GEICO handled Linlor's claim related to damage to the rear windshield of his 1999 GMC Jimmy SUV. Linlor alleged that GEICO unreasonably delayed the claim approval process and failed to reimburse him for approximately $1,137 in expenses related to replacing the rear windshield.
During the course of the lawsuit, the trial court ruled that Linlor should be required to pay sanctions in connection with four disputes related to discovery that Linlor was seeking from GEICO. The total amount of the four sanction awards imposed is $6,335, which is reflected in the judgment.
GEICO moved to have Linlor declared a vexatious litigant and to require that he post security in order to continue to pursue his lawsuit.
The trial court granted GEICO's motion to declare Linlor a vexatious litigant, and ordered Linlor to post $35,000 as security by February 11, 2019, in order to continue litigating this action.
Linlor failed to post the security as ordered by the court. The trial court entered a judgment of dismissal pursuant to Code of Civil Procedure section 391.4 on March 21, 2019. In the judgment, the court awarded GEICO $6,335, which represents the total amount of unpaid sanction awards imposed against Linlor throughout the litigation.
All further undesignated statutory references are to the Code of Civil Procedure unless otherwise indicated.
III.
DISCUSSION
A. Linlor has forfeited his arguments on appeal by failing to file briefing and a record that comply with the Rules of Court and basic appellate principles
As GEICO notes, Linlor has presented a wholly insufficient record, as well as noncomplying briefs, on appeal. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is an appellant's burden to ensure that the appellate record is adequate to review the appellant's claims, and the failure to provide an adequate record ordinarily results in affirmance of the judgment. (See, e.g., Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [" 'if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed' "]; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [concluding appellant failed to provide adequate record to review ruling granting motion to strike where appellant's appendix failed to include motion to strike, among other documents]; see also Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 ["Where the [appellant] fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him."].)
Linlor chose to proceed on appeal through the use of an Appellant's Appendix (Appellant's Appendix). Under California Rules of Court, rule 8.124(b)(1)(B), an appendix must contain all documents that are "necessary for proper consideration of the issues, including, for an Appellant's Appendix, any item that the appellant should reasonably assume the respondent will rely on." (Italics added.) The Appellant's Appendix filed in this appeal consists of three volumes and comprises 718 pages of documents. The documents in the Appellant's Appendix are not in any discernible order, and, as a result, the Appellant's Appendix is confusing, disorganized, and essentially unusable. Linlor's Appellant's Appendix clearly violates rule 8.144(b)(2)(C), which requires that "[t]he contents [of the record] be arranged chronologically." In addition, some of the documents appear to be incomplete, and it is difficult to determine whether each document included in the Appendix was, in fact, included in the record in the trial court. Further, the index provided does not refer to the titles of many documents, but instead refers to the documents through the use of argumentative assertions regarding the purported meaning of the document.
Further rule references are to the California Rules of Court.
The index also does not indicate the filing date for any of the documents referenced.
In addition to these significant problems, the Appellant's Appendix is also insufficient with respect to the many relevant documents necessary for us to be able to resolve this appeal—in particular, relevant documents filed by GEICO in the trial court. Linlor purports to challenge the trial court's order declaring him to be a vexatious litigant, but the Appendix does not include the moving and reply papers filed by GEICO in support of its motion for an order declaring Linlor to be a vexatious litigant, nor does it include the 34 exhibits that GEICO attached to a declaration submitted in support of the motion.
Although GEICO filed a respondent's appendix (Respondent's Appendix), which includes many of the key missing documents, it was incumbent on Linlor, as the appellant, to provide this court with an adequate appellate record. He clearly did not do so, and as a result, this court was unable to refer to, or utilize, the record that Linlor submitted on appeal in considering the questions raised in this case.
The fact that Linlor is appearing in propria persona does not provide a reason for excusing his failure to provide an adequate record: an appellant "is not exempt from the . . . rules because he is representing himself on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.] Thus, as is the case with attorneys, pro[pria] per[sona] litigants must follow correct rules of procedure." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
In addition to Linlor's failure to provide an adequate record on appeal, his briefing on appeal also fails to comply with basic appellate rules, lacks proper legal arguments, and is generally difficult to understand. "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' " (In re S.C. (2006) 138 Cal.App.4th 396, 408.) This requirement applies to legal authority and factual matters in the record. "It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the pages where the evidence can be found." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011.) "This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Even where an appellant cites general legal principles in support of certain arguments, these principles do not, in and of themselves, demonstrate error. "Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review. The court is not required to make an independent, unassisted study of the record in search of error. The point is treated as waived and we pass it without further consideration." (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078.) " 'We are not bound to develop appellants' arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956, italics added.)
Beyond these basic principles, pursuant to the Rules of Court, appellate briefs are required to "[s]tate each point under a separate heading or subheading summarizing the point, support each point by argument and, if possible, by citation of authority" (rule 8.204(a)(1)(B)), and "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears" (Id., subd. (a)(1)(C)). An opening brief, in particular, must "[p]rovide a summary of the significant facts limited to matters in the record." (Id., subd. (a)(2)(C).)
Linlor's briefing fails to comply with our appellate rules, and also fails to provide this court with any sufficient legal argument to support his claims of trial court error. Linlor makes various assertions of law and fact, without citation to authority or to the record. In addition, his brief consists of ambiguous, confusing statements. For example, he asserts that the "[e]rrors made" by the trial court include "disregarding transcribed telephonic and deposition evidence while recognizing evidence proven as fraudulent, assigning an excessive $35,000 bond to pursue litigation, and disregarding judicial economy to reverse on approved ADR." Linlor recites various grievances, and repeatedly makes factual assertions about a number of individuals involved in the proceedings that do not appear to have any factual basis in the record. Given the state of the record provided by Linlor, as well as the wholly inadequate briefing, we conclude that Linlor has forfeited whatever contentions he is attempting to assert on appeal. (See Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817 ["We consider all points asserted in this appeal to be forfeited as unsupported by 'adequate factual or legal analysis.' "].)
For example, Linlor states at one point, "ADR is now overcome by proven fraudulent and criminal actions by GEICO and Hansen [GEICO's attorney] herein."
However, even if we were to address what we discern to be Linlor's arguments for reversal, we would reject those arguments on their merits, as we explain post. B. Linlor has not demonstrated that the trial court erred in imposing sanctions against him
Linlor titles a short section of his brief, "Plaintiff/Appellant should not have been sanctioned for insisting on discovery required as a right." (Some capitalization omitted.) We understand Linlor to be asserting that the trial court erred in imposing sanctions against him because, according to Linlor, he was entitled to seek certain discovery and seeking discovery to which he was entitled was all that he was attempting to do.
"Under California's discovery statutes, 'information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.' " (Los Angeles Unified School Dist. v. Trustees of Southern California IBEW-NECA Pension Plan (2010) 187 Cal.App.4th 621, 627-628.) Misuse of the discovery process may result in the imposition of a variety of sanctions such as payment of costs, including attorney fees, and evidence preclusion. (§ 2023.030, subd. (a); Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214.) Such misuse includes "[p]ersisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery," and "[e]mploying a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (§ 2023.010, subds. (a), (c).)
Although Linlor fails to set forth the proper standard of review, " '[w]e review the trial court's order imposing [a discovery related] sanction for abuse of discretion. [Citation.] We resolve all evidentiary conflicts most favorably to the trial court's ruling [citation], and we will reverse only if the trial court's action was " ' "arbitrary, capricious, or whimsical." ' " [Citation.]' [Citations.]" (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1285-1286; see also, e.g., Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191 [we review orders arising from discovery disputes for an abuse of discretion].) No abuse of discretion is apparent here.
The record provided by GEICO demonstrates that the trial court imposed discovery sanctions on Linlor on four separate occasions. With respect to the first order imposing sanctions, it appears that Linlor attempted to set a deposition for a person most knowledgeable (PMK) at GEICO. Neither counsel for GEICO nor the person designated as the PMK at GEICO was available on the date that Linlor unilaterally set for the deposition. Although counsel for GEICO attempted to meet and confer with Linlor multiple times regarding setting a different date for the PMK deposition, Linlor refused and suggested that GEICO obtain new counsel, or that GEICO's PMK appear for the deposition without an attorney present. Given Linlor's refusal to cooperate in setting a date workable for all parties, GEICO sought a protective order from the trial court. In a declaration, GEICO's counsel described the efforts that GEICO had expended in attempting to work with Linlor to arrive at a mutually agreeable date for the deposition. Linlor opposed GEICO's request for a protective order and listed a number of grievances and purported slights that he claimed to have suffered, which he attributed to GEICO. After reviewing the parties' filings, the trial court granted GEICO's request for a protective order, and concluded that Linlor's refusal to cooperate in the rescheduling of the deposition was unreasonable; the court imposed monetary sanctions against Linlor in the amount of $1,685. After reviewing the record, it is clear that the trial court did not abuse its discretion in concluding that Linlor acted unreasonably with respect to the scheduling of the PMK deposition, given his complete unwillingness to cooperate with opposing counsel to find a mutually agreeable date on which to set the deposition.
The second order in which the trial court imposed sanctions on Linlor involved Linlor's filing of a frivolous motion against GEICO in relation to the PMK deposition matter just discussed. Rather than cooperate with GEICO in arranging for another date for the deposition of GEICO's PMK, Linlor sought terminating and contempt sanctions against GEICO as a result of its attempt to try to reschedule the deposition date. Linlor not only requested that the court strike GEICO's answer and enter default judgment against GEICO in the amount of $201,282.76 but also sought sanctions in the amount of $5,000 against GEICO's attorney and requested that the court issue an order directing the State Bar to suspend the attorney's license for six months. The trial court rejected Linlor's requests out of hand, and concluded that Linlor's requests that the court order GEICO's attorney's license suspended and for sanctions constituted an attempt to execute on a threat made "to obtain an advantage in this litigation," and as such, went "well beyond violating" the Rules of Professional Conduct, rule 3.10. Because Linlor's requests were entirely without merit, and because the trial court found that Linlor's tactics were in violation of the Rules of Professional Conduct, the trial court granted GEICO's request for sanctions against Linlor for the filing of the motion, in the amount of $1,690, to cover part of the cost to GEICO of having to respond to Linlor's motion. Linlor has offered no argument on appeal as to how or why the trial court's sanction order was an abuse of discretion, and our review of the record demonstrates that the trial court acted well within its reasonable discretion in concluding that Linlor's motion was wholly without merit and justified the imposition of a sanction related to the cost to GEICO of having to defend against the frivolous motion.
Rules of Professional Conduct, rule 3.10, formerly cited as rule 5-100, provides that "[a member] shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute." (Id., subd. (a).) The Rules of Professional Conduct apply to litigants proceeding in propria persona. (See Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
The next sanction imposed against Linlor arose from Linlor's filing of a frivolous motion to compel discovery. Linlor sought to compel GEICO's attorney to sign a medical release form to allow Linlor to obtain the attorney's medical records, as well as to permit Linlor to depose the attorney's physicians in another state regarding the attorney's health. Linlor also sought to compel the deposition of GEICO's PMK, even though that deposition was already the subject of a protective order requiring Linlor to work with GEICO to establish a mutually agreeable date for the deposition. Finally, Linlor sought to compel "[a]ll previously requested [d]iscovery by [p]laintiff," despite the fact that GEICO had already responded to Linlor's discovery requests and Linlor identified no instance in which GEICO had failed to provide a sufficient response. Again, the trial court concluded that Linlor's motion to compel was unmeritorious and that it warranted the imposition of sanctions in the amount of $2,210. The record demonstrates that Linlor's motion to compel was, essentially, frivolous; Linlor was attempting to relitigate issues already decided and was requesting discovery that was irrelevant to the issues in the litigation, including GEICO's attorney's personal medical information. Linlor has failed to demonstrate on appeal that the trial court abused its discretion in ordering sanctions related to this filing.
Linlor apparently believed that he was entitled to this discovery because GEICO's attorney had sought to reschedule the deposition date, in part due to his need to attend a medical appointment on the day before the date that Linlor had unilaterally set for the deposition.
Finally, the trial court imposed sanctions against Linlor with respect to his serving a second deposition subpoena on GEICO for GEICO's PMK, which was basically identical to the first, for yet another deposition date that Linlor chose unilaterally. Linlor served the second deposition subpoena on GEICO despite the fact that GEICO's motion for a protective order with respect to the first deposition subpoena was pending at the time, as were Linlor's two motions that also related to the first deposition subpoena. GEICO attempted to get Linlor to withdraw the second deposition subpoena. When Linlor refused, GEICO was forced to file a motion to quash the subpoena. Given that Linlor's deposition subpoena was essentially duplicative of his prior deposition subpoena, and given that a deposition of GEICO's PMK had already been ordered by the court pursuant to the terms of the protective order, the trial court granted GEICO's motion to quash the subpoena and further imposed a sanction of $750 against Linlor. Linlor has offered nothing to demonstrate that the trial court's decision with respect to GEICO's motion to quash the duplicative subpoena and to impose a sanction for Linlor's service of the duplicative subpoena, and his refusal to withdraw it, which essentially forced GEICO to have to seek court assistance, constituted an abuse of discretion. The court acted well within reason in imposing a discovery sanction for Linlor's abuse of the process.
In sum, Linlor has failed to demonstrate that the trial court acted arbitrarily or outside the bounds of reason in imposing any of the four sanction orders against him for his misuse of the discovery process. C. Linlor has not demonstrated error with respect to the trial court's determination that Linlor is a vexatious litigant
In briefing, Linlor devotes approximately two pages of argument to addressing the trial court's determination that Linlor is a vexatious litigant. This portion of the brief, like the remainder of the brief, lacks discernible legal argument and proper citations to the record demonstrating error. Linlor does assert, in a conclusory manner, that "287+" pages of the Appellant's Appendix demonstrate that the requirement that he have pursued five or more unsuccessful litigations could not have been established because "several" of the cases that GEICO relied on in the trial court were under appeal and were "not for any unmeritorious pursuit." We conclude that Linlor has not demonstrated error with respect to the trial court's vexatious litigant ruling.
"The vexatious litigant statutes (§§ 391-391.7) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants." (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169 (Shalant).) The statutes define a vexatious litigant as, among other things, a person who has commenced, prosecuted, or maintained at least five litigations in propria persona, in the past seven years, that have been finally determined adversely to the person (§ 391, subd. (b)(1)), or a person who, "while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." (Id., subd. (b)(3).)
"The term ' "[l]itigation" ' is defined broadly as 'any civil action or proceeding, commenced, maintained or pending in any state or federal court.' (§ 391, subd. (a).) A litigation includes an appeal or civil writ proceeding filed in an appellate court. [Citations.] A litigation is finally determined adversely to a plaintiff if he does not win the action or proceeding he began, including cases that are voluntarily dismissed by a plaintiff." (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 (Garcia); see Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1172 [distinguishing types of writ proceedings].)
"In pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed. (§§ 391.1-391.6.)" (Shalant, supra, 51 Cal.4th at p. 1171, italics omitted.)
" 'A [trial] court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court's ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment. [Citation.]' [Citations.] Similarly, a court's decision that a vexatious litigant does not have a reasonable probability of success is based on an evaluative judgment in which the court is permitted to weigh evidence. [Citation.] A trial court's conclusion that a vexatious litigant must post security does not, as with a demurrer, terminate the action or preclude a trial on the merits. Rather, it merely requires the party to post security. Accordingly, if there is any substantial evidence to support a trial court's conclusion that a vexatious litigant had no reasonable probability of prevailing in the action, it will be upheld." (Garcia, supra, 231 Cal.App.4th at pp. 407-408.)
The trial court provided two alternative bases for its determination that Linlor is a vexatious litigant. First, the trial court found that "plaintiff has filed more than five lawsuits in seven years that have been determined adversely to the plaintiff." The court also found, in the alternative, that "plaintiff should be deemed vexatious pursuant to [section] 391[, subdivision ](b)(3) based on the fact that plaintiff has repeatedly filed unmeritorious motions in this litigation."
We conclude that Linlor has not shown error. Although Linlor suggests that some of the "litigations" on which the trial court relied have not been finally and conclusively determined against him because some of them are on appeal, even if we assume for purposes of argument that Linlor is correct on this point, Linlor does not address the trial court's alternative basis for declaring him to be a vexatious litigant. Specifically, Linlor does not provide any argument as to why the court's finding that he has repeatedly filed unmeritorious motions, pleadings and other papers is not supported by sufficient evidence, nor has he argued that the trial court's conclusion that he is a vexatious litigant based on this alternative ground constituted an abuse of the court's discretion. Our review of the record demonstrates that there is more than sufficient evidence to support the trial court's finding that Linlor repeatedly filed unmeritorious motions and papers in this matter. Indeed, the trial court concluded that Linlor's filings and conduct with respect to at least four discovery disputes were not only unmeritorious, but were sanctionable, and as we have already concluded, Linlor has failed to demonstrate error with respect to those rulings.
We therefore conclude that Linlor has not demonstrated that the trial court abused its discretion in declaring him to be a vexatious litigant under section 391. Given that the trial court did not abuse its discretion in declaring Linlor a vexatious litigant, and therefore, in requiring the posting of a security, and given that it is undisputed that Linlor failed to post the required security, Linlor cannot demonstrate that the trial court's dismissal of the action constitutes reversible error. D. Linlor's claim that GEICO's counsel was not licensed to practice law is without evidentiary or legal support
Linlor's brief does not seem to refer to, or challenge, other portions of the trial court's order—i.e., the court's determination that GEICO established a reasonable probability that it would prevail in the litigation under section 391.1, or that the court's decision to require security in the amount ordered—i.e., $35,000—was improper. We therefore do not consider those issues.
Linlor spends multiple pages of his briefing on appeal arguing that the trial court should not have accepted, or relied on, any of GEICO's filings because, according to Linlor, GEICO's attorney "did not have standing to practice law in California without a business license." (Some capitalization omitted.)
According to Linlor's logic, GEICO's attorney was required to have a "business license[] in the City of El Cajon where [the attorney] claims to have practiced law throughout this case," and since there is "no evidence in the record on appeal that [the attorney] ever licensed his California law practice in El Cajon or San Diego (or anywhere in California)," GEICO's attorney "did NOT hold legal standing to practice law per California [Business and Professions Code]." There is no authority whatsoever to support Linlor's contention that the lack of a city business license renders an attorney "unlicensed" to practice law in California; a business license issued by a local entity is not the same as a license, issued by the state, to practice law. Further, it is not clear from the record that GEICO's attorney lacked a requisite business license. We decline to give this accusation against GEICO's attorney any additional consideration.
Although GEICO's attorney acknowledges in briefing that he "was tardy in paying a $44 annual fee to the City of El Cajon for business tax for 2018," there is no indication in the record that a "tardy" payment of an annual business tax fee affected the attorney's local business license.
IV.
DISPOSITION
The judgment is affirmed. GEICO is entitled to costs on appeal.
AARON, J. WE CONCUR: MCCONNELL, P. J. HALLER, J.