Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F09902317 Jon Nick Kapetan, Judge.
Daniel K. Martin for Objectors and Appellants, Lexington Insurance and Ajua Bail Bonds.
Woodrow Edgar Nichols, Jr., for Defendants and Respondents, Eduardo Serrano and Veronica Espinoza.
No appearance on behalf of Plaintiff.
OPINION
Poochigian, J.
INTRODUCTION
Respondents Eduardo Serrano and his wife Veronica Espinoza (respondents) were arrested and taken into custody for drug offenses. They were released on bail after they obtained a bond from appellant Ajua Bail Bonds (appellant). Appellant subsequently surrendered respondents and claimed they failed to comply with the terms of the bail bond agreement. The instant appeal involves an order from the Superior Court of Fresno County, which granted respondents’ motion for return of the bail premium pursuant to Penal Code section 1300, subdivision (b). The court granted the motion because it found appellant failed to present competent evidence to show there was good cause for the surrender of respondents into custody.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, appellant asserts the superior court abused its discretion when it granted respondents’ motion because another court had already found there was good cause to surrender respondents. Appellant further asserts there was good cause for respondents’ surrender because respondents violated the terms and conditions of the bail bond agreement. Respondents contend this appeal is frivolous and request sanctions against appellant. We will deny respondents’ request for sanctions and affirm the superior court’s order.
As we will explain, the following facts are from undisputed court records, and declarations signed under penalty of perjury and filed in support of respondents’ motion.
On April 15, 2009, respondents were arrested by the Fresno Police Department and charged with possession of narcotics for sale (Health & Saf. Code, § 11378), possession of marijuana for sale (Health & Saf. Code, § 11359), and two counts of child endangerment (§ 273a, subd. (a)).
After their arrest, respondents were taken to the Fresno County jail. According to respondent Serrano’s sworn declaration, “arrangements were made with representatives from [appellant] to bail us out.” On April 18, 2009, respondents were “bailed out” by appellant.
Respondents were jointly represented in the criminal proceedings by retained counsel, Mario DiSalvo. According to the record before this court, respondents appeared at all scheduled court proceedings with DiSalvo and they remained on bail and out of custody. According to DiSalvo’s sworn declaration, he saw a representative from appellant’s company in the courtroom during every hearing for respondents, and the representative observed respondents were present in the courtroom.
Appellant surrenders respondents
On the morning of June 17, 2009, Judge James Quaschnick convened a pre-preliminary hearing in respondents’ criminal case. DiSalvo appeared with respondents. DiSalvo stated that he was trying to work out a deal on the charges and asked to continue the matter. The prosecutor agreed.
According to the reporter’s transcript, a man interrupted the hearing, identified himself as Manuel Fuentes, said he was appellant’s bail agent, and asked the court to remand respondents into custody “for failure to comply with bail conditions.” The court asked Fuentes to explain. Fuentes, who was not under oath, stated respondents failed to “inform the office as far as court dates. There was no contact with the office, ” respondent Serrano was not working where he claimed to be, and “[w]e just couldn’t get ahold [sic] of them.”
DiSalvo immediately accused Fuentes of lying and stated he had proof that appellant had threatened his clients. DiSalvo stated:
“[Appellant] got paid and wanted more money. I’m contacting the Insurance Commission. [¶ ] My clients have been in compliance. My office called them and they never returned the calls. We’ve been trying to set up a meeting with the owner of the bail bond agency. And we’re reporting them to the Insurance Commission to take action against them. [¶ ] They tried to extort more money from my clients when they had an arrangement.”
Fuentes asked the court if he could call the owner of the bail bond company so she could appear and explain the situation. The court agreed and continued the matter until 10:05 a.m.
When the court reconvened, Raquel Palacios appeared and stated that she was there on behalf of appellant. The court advised Palacios that Fuentes said respondents violated the terms of their bail and should be remanded into custody. Palacios was not sworn or under oath, and she simply addressed the court and stated:
“It has absolutely nothing to do with premium or money; it has to do with no contact. They do not come to my office after they come to their court appearance, which was told to them. Plus, they don’t tell me their court dates.”
Palacios stated that she told respondent Espinoza that she “needed to have another indemnitor sign for her today, ” but Espinoza told Palacios to talk to her attorney. Palacios complained “[t]hat’s not the way this works. I was willing to let her stay out because she has children and she’s gainfully employed, which is why I asked her to do that, but she does not want to comply.” Palacios further stated that respondent Espinoza told her to speak to respondent Serrano at the house. Palacios stated she went to respondent Serrano’s house, but he “just lets loose the pit bull and he never comes out, ” and he “refuses to stay in contact.” Palacios continued:
“And I don’t have enough collateral or nothing. That’s why I told [Espinoza] to come in and bring somebody else. [¶ ] I want to surrender both bonds at this point. It has nothing to do with money at all.”
DiSalvo objected to Palacios’s unsworn accusations and argued that Palacios had to file a motion pursuant to the Penal Code to obtain an order for surrender. DiSalvo advised the court that respondents were constantly in contact with him, they were always in court, and they complied with all court orders. DiSalvo further stated that Palacios and appellant’s office were aware of the court dates because his law office called appellant’s office, but Palacios never returned the calls. Respondents paid the requested premium when they were bailed out, they made payment arrangements, and they had just made a payment two days earlier.
As we will discuss post, DiSalvo’s statutory references were to section 1300.
DiSalvo stated that the Penal Code required good cause for surrender and Palacios failed to state good cause. Palacios replied respondents failed to keep appellant informed about the court dates, DiSalvo never called her office, and she knew their court dates because she kept up with them.
The court stated that it was going to remand respondents into custody. DiSalvo objected and made an oral motion for appellant to return respondents’ bail bond premium (§ 1300, subd (b)). The court replied, “That’s a civil case.” DiSalvo demanded to know the legal cause for remand. The court replied, “For what they stated.” DiSalvo again stated that he kept in contact with appellant. Palacios interjected that he did not. The court suggested that DiSalvo “file a civil action.”
“While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature. [Citation.]” (People v. American Contractors Indem. Co. (2004) 33 Cal.4th 653, 657.)
In response to DiSalvo’s repeated objections, the court replied, “You know, this is not a trial” and asked if he wanted one. DiSalvo stated that the court lacked authority to remand respondents because they had maintained contact with appellant and they had not violated any court orders. DiSalvo stated that Palacios failed to comply with the statutory requirements to obtain remand of his clients because she failed to file a motion, and she was not under oath when making her accusations. DiSalvo complained that the court should believe him, as an officer of the court, instead of someone who was not sworn.
The court offered to set a hearing on DiSalvo’s complaints. DiSalvo asked the court not to remand his clients until that afternoon, because “we’ll have posted bond again. I have another bondsman in court.” Palacios interjected that DiSalvo had another bondsman in court because he “apparently knew they weren’t in contact and knew it was going to happen.” DiSalvo explained that he had just called another bail bondsman to appear.
Lawrence Schwartz of All Pro Bail Bonds stated his presence, and that he needed some time to negotiate everything. The court instructed the parties to return by 2:00 p.m. to have bond posted, and respondents remained out of custody.
When the court reconvened, it accepted the new bail bond notices for respondents, they gave a general time waiver, and the court set the next hearing date.
According to the minute order, the court ordered the surety bond exonerated, the new bail bond was filed, and respondents remained out of custody on the new surety bond.
Respondents’ motion for return of premium
On August 14, 2009, respondents filed a motion pursuant to section 1300, subdivision (b) for return of the bail bond premium they previously paid to appellant. They were represented by attorney Woodrow Nichols, Jr. in the bail bond matter. The motion was supported by declarations signed under penalty of perjury by respondent Serrano, and from DiSalvo, their attorney in the criminal case, setting forth the facts and circumstances of respondents’ arrest and the bail bond from appellant.
DiSalvo’s declaration stated that appellant’s owner had “actively slandered” him to respondents and told them to hire another attorney.
Respondents asserted the court improperly ordered their surrender at the June 17, 2009, hearing, and it should have granted respondents’ oral motion for return of the bail premium because they appeared at all scheduled hearings, appellant’s representative was present for every hearing, and appellant was aware of the case status. Respondents further argued there was no competent evidence to support the court’s decision to exonerate the bond because appellant failed to comply with section 1300, subdivision (a), and never introduced any of the required documents to show good cause. Respondents sought the return of $5,140 in premium payments that they made to appellant.
According to respondent Serrano’s sworn declaration, he paid appellant a total of $7,140, but appellant unlawfully charged him $2,000 on a disputed credit card transaction. Serrano declares that the disputed credit card charge was reversed, so that respondents actually paid appellant $5,140 in premium payments.
The record implies that appellant filed a response to respondents’ motion, but that opposition is not in the instant appellate record.
Further proceedings
On September 28, 2009, Judge Jon Nick Kapetan conducted a hearing on both the pending criminal charges and respondents’ motion for return of the bail premium. Respondents were present and represented by Nichols in both matters. Attorney Daniel Martin appeared for appellant. The court granted respondents’ motion to continue the criminal matter.
The court turned to respondents’ motion for return of the bail bond premium. Nichols stated that respondents were never given a copy of the bail bond agreements that they signed and argued appellant engaged in egregious behavior when it demanded their surrender. Nichols stated that respondent Serrano “picked up a new offense” while on bail, but “that offense was never filed” and it could not be used against him under the bail bond.
Martin argued that Judge Quaschnick “already decided this issue” at the June 17, 2009, hearing, and Judge Kapetan was bound by “res judicata” from addressing whether there was good cause to surrender under section 1300. Martin also argued there was good cause to surrender respondents because they violated the terms of the agreement since they failed to stay in contact, they refused to talk to appellant, they failed to find an indemnitor, and respondent Serrano was arrested on another offense.
Nichols replied that there was no evidence as to the actual terms and conditions of the bail bond since the agreement was not part of the record. Martin replied that respondents never filed any discovery motions to obtain a copy of the contract.
Judge Kapetan complained that the record was incomplete and he was not sure that Judge Quaschnick actually ruled upon respondents’ oral motion for return of the bail bond premium at the June 17, 2009, hearing. Judge Kapetan believed that Judge Quaschnick simply ordered the surety bond exonerated.
The court further noted that while appellant filed declarations in support of its response to respondents’ motion, those declarations were not filed under penalty of perjury and he could not accept them. The court stated the purported declarations just consisted of “some statement[s]” that were made and were inadmissible. The court stated that appellant had the burden of showing good cause under section 1300, and it could not find good cause because “I don’t know what the agreement was.” Martin asked if the court was “inviting” an evidentiary hearing on the terms of the agreement. The court replied that it was “just inviting somebody to give me a declaration from [appellant] that is an actual declaration, other than just some statements here.”
The court continued the matter and ordered appellant to provide a copy of the bail bond agreement and “further declarations at your peril, as long as they comport with what I believe to be a declaration made [sic].” The court set the next hearing for October 19, 2009.
The court’s order
On October 19, 2009, the court convened the continued hearing on respondents’ motion for return of the bail bond premium and the status of the criminal proceedings. Respondents were present and represented by Nichols. The prosecutor for the criminal case was present. Martin was not present and there was no one representing appellant when the hearing convened.
Nichols stated appellant had failed to file or introduce any evidence in opposition to respondents’ motion for return of the bail bond premium, contrary to the court’s orders at the last hearing. The prosecutor stated that Martin, appellant’s attorney, had someone “drop off” some forms that morning, which asked for a continuance because Martin was going to be in trial for six days.
The court decided to continue the matter for one day “simply for the ruling” on respondents’ motion. The court stated:
“I will not accept any further documents or evidence from Mr. Martin. I have none in my file today, nothing has been filed. There’s no good cause for the continuance. [Martin’s motion for a continuance] is also untimely. I’ve heard no good cause why it wasn’t filed prior. I will reserve the issue of sanctions as well.”
On October 20, 2009, the court held another hearing on respondents’ motion. Respondents were present and represented by Nichols. Martin was present on behalf of appellant. The court advised Martin that the hearing had previously been continued to October 19, 2009, for appellant to file appropriate declarations and affidavits, but it failed to do so. The court further noted that Martin’s request for a continuance was untimely.
Martin stated that two of appellant’s employees were present in court to provide testimony as to whether there was good cause to surrender respondents. The court replied that Martin was supposed to have appeared the previous day to introduce evidence and cure the defects in the declarations, and the court only trailed the matter one more day so Martin could be present for the court’s ruling.
Martin explained he attempted to file a continuance because he was in trial. The court replied that “all you needed to do was file the affidavits under penalty of perjury. Three weeks went by and nothing happened.”
The court granted respondents’ motion and ordered appellant to return their bail bond premium of $5,140.
DISCUSSION
Appellant argues the court abused its discretion when it granted respondents’ motion to return their bail bond premium pursuant to section 1300, subdivision (b). We will review the applicable provisions of that statute and then explain why appellant’s contentions are meritless.
A. Bail bonds
“A bail bond is in the nature of a contract between the government and the surety, in which the surety acts as a guarantor of the defendant’s appearance under risk of forfeiture of the bond. [Citation.] ‘In general the state and surety agree that if the state will release the defendant from custody, the surety will undertake that the defendant will appear personally and at a specified time and place.… If the defendant fails to appear at the proper time and place, the surety becomes the absolute debtor of the state for the amount of the bond.’ [Citation.]” (People v. Amwest Surety Ins. Co. (1991) 229 Cal.App.3d 351, 356.)
“ ‘When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment.’ [Citations.]” (People v. Lexington National Ins. Co. (2007) 147 Cal.App.4th 1192, 1198 (Lexington National).) “It is the obligation of the sureties on a bail bond to produce the principal at the time and the place specified in the bond. [Citation.]” (People v. Amwest Surety Ins. Co. (1986) 180 Cal.App.3d 444, 447.)
When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (People v. American Contractors Indem. Co., supra, 33 Cal.4th 653, 658.)
In contrast, “ ‘[w]hen the bail has served its purpose, the surety will be “exonerated, ” i.e., released from the obligation. Exoneration normally occurs on termination of the proceedings in some manner or on return of the defendant to custody. [Citations.]’ [Citation.] Thus, for example, bail will be exonerated when the action is dismissed against the defendant [citation], when the trial court grants a motion to set aside the indictment or information [citation], when a defendant is committed after being convicted [citation], and when a defendant appears for sentencing [citations].” (Lexington National, supra, 147 Cal.App.4th at p. 1198.)
B. Surrender and exoneration
“Although a bail bond may secure a defendant’s freedom, a bonding company has the statutory right to surrender its bond at any time to return a defendant to the court’s custody. [Citation.]” (Indiana Lumbermens Mutual Ins. Co. v. Alexander (2008) 167 Cal.App.4th 1544, 1547 (Alexander); LexingtonNational, supra, 147 Cal.App.4th at p. 1198.) Section 1300, subdivision (a), permits the bonding company to obtain exoneration of its bond by surrendering defendant to the court “[a]t any time” before the forfeiture of the bond, “with or without good cause.” (People v. Smith (1986) 182 Cal.App.3d 1212, 1220, fn. 5 (Smith); § 1300, subd. (a).)
Section 1300, subdivision (a) thus provides for the bail to be exonerated “when the surety, fearful that a defendant will not appear as required, surrenders the defendant to the court.... [Citation.]” (Lexington National, supra, 147 Cal.App.4th at p. 1198.) The statute provides that upon surrender, the bail bond company must make reasonable efforts to notify that party’s attorney, and the party must be brought before the court within 48 hours of surrender. (§ 1300, subds. (a)(2) & (a)(3).) The bail bond company is also statutorily required to perform the following act in order to surrender the party:
“A certified copy of the undertaking of the bail, a certified copy of the certificate of deposit where a deposit is made, or an affidavit given by the bail licensee or surety company listing all that specific information that would be included on a certified copy of an undertaking of bail, must be delivered to the officer who must detain the defendant in his custody thereon as upon a commitment, and by a certificate in writing acknowledge the surrender.” (§ 1300, subd. (a)(1), italics added.)
As applied to the instant case, representatives from appellant appeared during a scheduled hearing in respondents’ criminal case on June 17, 2009, and surrendered respondents to the court’s custody pursuant to section 1300, subdivision (a), based on respondents’ purported violations of the bail bond agreement. Appellant’s representatives did not present the court with the bail bond agreement, and they did not offer any sworn testimony or declarations to support their allegations. While the court never ordered respondents into actual physical custody, it still ordered their surrender and the exoneration of the surety bond based on the unsworn statements of appellant’s representatives.
As noted by respondents’ attorney, appellant’s representatives never delivered to the court any of the documents required by section 1300, subdivision (a)(1), “[a] certified copy of the undertaking of the bail, a certified copy of the certificate of deposit where a deposit is made, or an affidavit given by the bail licensee or surety company listing all that specific information that would be included on a certified copy of an undertaking of bail.…”
C. Return of Premium
While appellant failed to comply with section 1300, subdivision (a)(1) when it sought respondents’ surrender on June 17, 2009, respondents did not lack a statutory remedy. Whenever a bonding company exercises the statutory right to surrender without good cause, section 1300, subdivision (b) “permits the court to order the bonding company to refund the defendant’s premium.” (Alexander, supra, 167 Cal.App.4th at p. 1547.)
Section 1300, subdivision (b) states:
“[I]f the court determines that good cause does not exist for the surrender of a defendant who has not failed to appear or has not violated any order of the court, it may, in its discretion, order the bail or the depositor to return to the defendant or other person who has paid the premium or any part of it, all of the money so paid or any part of it.” (§ 1300, subd. (b), italics added.)
The purpose of section 1300, subdivision (b) is “to temper the bonding company’s virtually unlimited power over the defendant’s freedom. [Citation.] By constraining the bonding company, the statute prevents the inequity of a bonding company’s pocketing a defendant’s premium, only to turn around and hand the defendant back to the authorities. [Citation.]” (Alexander, supra, 167 Cal.App.4th at p. 1547.)
Good cause for surrender under section 1300 “is not limited to a defendant’s failure to appear or violations of a court order.” (People v. Smith, supra, 182 Cal.App.3d at p. 1215.) “It is implicit in the statute that even where a defendant has not failed to appear and has not violated any order of the court, good cause may exist so as to preclude the return of the premium.” (Id. at pp. 1217-1218, italics in original.)
The determination of good cause under section 1300, subdivision (b) is addressed to the court’s discretion. (Smith, supra, 182 Cal.App.3d at pp. 1218, 1221.) The court has the discretion “to deny the return of the premium, or a part of it, upon a reasonable showing.” (Id. at p. 1218, italics in original.)
“In other words, good cause will ordinarily exist where a defendant has failed to appear or has violated an order of the court, absent a proper showing of a justifiable excuse put forth at the hearing. However, those are not the sole events which may give rise to good cause. The trial court still has discretion to find good cause for surrender, for other good and sufficient reasons.” (Smith, supra, 182 Cal.App.3d at p. 1218, italics in original.)
D. Res Judicata/Collateral Estoppel
As we have explained, Judge Kapetan granted respondents’ written motion for return of their bail premium pursuant to section 1300, subdivision (b), at the October 20, 2009, hearing. Appellant asserts that Judge Kapetan was barred from addressing respondents’ written motion, because Judge Quaschnick purportedly denied respondents’ oral motion for return of their bail premium during the June 17, 2009, hearing. Appellant argues the doctrines of res judicata and collateral estoppel prevented Judge Kapetan from subsequently hearing and granting respondents’ motion.
Appellant’s collateral estoppel arguments are refuted by the record. At the June 17, 2009, hearing, respondents’ attorney, DiSalvo, made an oral motion for return of the bail bond premium immediately after the court ordered respondents’ surrender. The court repeatedly refused to hear DiSalvo’s arguments and directed him to file another action. While the minute order states that the court ordered respondents’ surrender and it exonerated the surety’s bond, there is no reference to the court ruling upon respondents’ oral motion for return of the bail bond premium. Judge Quaschnick never ruled on respondents’ oral motion for return of the bail bond premium, and the doctrines of res judicata and collateral estoppel did not bar Judge Kapetan from granting respondents’ subsequent written motion.
E. Abuse of discretion
In the alternative, appellant argues Judge Kapetan abused his discretion when he granted respondents’ written motion for return of the bail bond premium. Appellant contends it entered into an agreement with respondents in which it “agreed to post bond” for them and “in exchange” they “agreed to stay in contact” with appellant, respondents agreed to pay the remaining premiums, and respondent Espinoza agreed to provide an indemnitor. Appellant argues good cause existed to surrender respondents because they failed to perform under the agreement. Appellant asserts that respondent Serrano moved, he failed to provide a new address, he was arrested for another charge, respondent Espinoza failed to provide an indemnitor, and both respondents failed to maintain contact with appellant.
These reasons may have constituted good cause to surrender respondents pursuant to section 1300, subdivision (b). However, appellant never introduced any competent evidence to prove the terms and conditions of the bail bond agreement, or to prove that respondents committed the claimed violations. As we have explained, the obligations between the parties are defined by the written contract. (People v. Amwest Surety Ins. Co., supra, 180 Cal.App.3d at p. 447.) A court has discretion to grant or deny a motion pursuant to section 1300, subdivision (b) “upon a reasonable showing.” (Smith, supra, 182 Cal.App.3d at p. 1218, italics in original [good cause found where two witnesses testified about violations of bail agreement].) “[T]here are three modes of testimony permitted to show a fact: affidavit, deposition, and oral testimony. [Citation.] Oral testimony is sworn. A written deposition is also made under oath, with notice to the adverse party. [Citation.] An affidavit is a written declaration made under oath, but without notice to the adverse party. [Citation.] An affidavit, as a means of testimony, is evidence capable of proving a fact.” (People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 967.) A writing or affidavit made under penalty of perjury is “a sworn evidential statement, and thus may have evidentiary status.” (Id. at p. 968.)
Appellant failed to introduce any competent evidence, at any time during this proceeding, to show there was good cause to surrender respondents. At the June 17, 2009, hearing, two of appellant’s representatives appeared in court and stated that respondents had violated the terms of the bail bond agreement. They were not sworn or under oath when they made these statements. They did not present the actual bail agreement or any sworn declarations to establish these purported facts.
After respondents filed their written motion for return of the bail bond premium, appellant apparently filed some type of response. However, Judge Kapetan stated appellant’s response was supported by statements that were not sworn to or signed under penalty of perjury. Appellant’s attorney did not disagree with the court’s description about the absence of sworn declarations. (See, e.g., Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 992 [sworn affidavits under penalty of perjury setting forth facts within affiants’ personal knowledge are competent evidence of a fact]; McDonald v. Superior Court (1994) 22 Cal.App.4th 364, 370 [personal declaration under penalty of perjury competent evidence of a fact].)
The court continued the matter for nearly three weeks so that appellant could introduce competent evidence to explain why there was good cause to surrender respondents. The court specifically advised appellant that live testimony was not required, and ordered appellant to produce the actual bail bond agreement and file appropriate declarations signed under penalty of perjury. Appellant completely failed to introduce any evidence and failed to give a reason for its failure to do so.
Judge Kapetan did not abuse his discretion when he granted respondents’ motion for return of the bail bond premium given appellant’s complete failure to introduce any competent evidence to show good cause for the surrender of respondents.
F. Sanctions
Finally, respondents request this court to impose sanctions against appellant for filing a frivolous appeal. (See, e.g., Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276.) “[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] [¶ ] However, any definition must be read so as to avoid a serious chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, italics in original.) “Sanctions are to be ‘used most sparingly to deter only the most egregious conduct.’ [Citation.]” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.) We find no evidence of improper motives or egregious conduct and deny respondents’ request for sanctions.
DISPOSITION
The judgment is affirmed. Respondents’ motion for sanctions is denied. Costs are awarded to respondents.
WE CONCUR: Gomes, Acting P.J., Detjen, J.