PATTERSON v. DOMINOS PIZZA

Appellant’s Answer to Petition for Review

Cal.August 24, 2012

pu. SUPREME COURT No.: $204543 FILED AUG 2 4 2012 | IN THE SUPREMECOURT Frank A. McGuire Clerk OF THE STATE OF CALIFORNIApana TAYLOR PATTERSON., Court ofAppeal No. B235099 Plaintiff and Appellant, Ventura County Superior Court No.: 56-2009-00347668- CU-OE-SIM VS. DOMINO’SPIZZA LLC,etal,, Defendants and Respondents. e e e e d e e e Appeal from a Judgment ofDismissal Honorable Barbara Lane, Judge ANSWERTO PETITION FOR REVIEW Alan Charles Dell’Ario, #60955 Alexis S. McKenna, #191120 ALAN CHARLES DELL’ARIO, P.C. . Kent F. Lowry, #227462 1970 Broadway, Suite 1200 WINER & MCKENNA, LLP _ Oakland, California 94612 21900 Burbank Blvd., 3Floor Phone (510) 763-7700 WoodlandHills, California 91367 Fax: (510) 451-4115 Phone:(818) 992-3131 Attorneys for Appellant Taylor Patterson Zz No.: 8204543 IN THE SUPREMECOURT OF THE STATE OF CALIFORNIA TAYLOR PATTERSON., Court of Appeal No. B235099 Plaintiff and Appellant, Ventura County Superior Court No.: 56-2009-00347668- CU-OE-SIM VS. DOMINO’S PIZZA LLC,et al,, Defendants and Respondents. N e w r e e e e e e e e e e e e e e Appeal from a Judgment of Dismissal Honorable Barbara Lane, Judge ANSWERTO PETITION FOR REVIEW Alan Charles Dell’ Ario, #60955 Alexis S. McKenna, #191120 ALAN CHARLES DELL’ARIO,P.C. Kent F. Lowry, #227462 1970 Broadway, Suite 1200 WINER & MCKENNA, LLP Oakland, California 94612 21900 Burbank Blvd., 3Floor Phone (510) 763-7700 Woodland Hills, California 91367 Fax: (510) 451-4115 Phone: (818) 992-3131 Attorneys for Appellant Taylor Patterson TABLE OF CONTENTS TABLE OF AUTHORITIES ...............00 00000. c cea il ANSWERTO PETITION FOR REVIEW ................... 1 I. A franchisor is vicariously liable for acts of its franchisee if their relationship amountsoneof principal and agent. Whetheragency exists is ordinarily a question of fact. The Court of Appeal’s opinion is but a modern application of these two well-settled principles. eeeee eee eee eee eee eee eae 2 II. The Court of Appeal treated the judgment from which the appeal wastakenas the one,final judgmentjust as the trial court and parties intended. Domino's motion to dismiss camefar too late in any event .. 10 CONCLUSION ..... 0.00.eae 16 WORD COUNT CERTIFICATE ...........0.00..0 00.0000. 17 TABLE OF AUTHORITIES Cases: Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894 2.00...eeeee 10 Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284 ..........00...00.00....... 3 Denham v. Superior Court (1970) 2 Cal.3d 557 2.ccceee eee 12 Fireman’s Fund Ins. Co. v. Worker's Compensation Appeals Bd. (2010) 181 Cal.App.4th 752 .........0......0...0..... 15 Hollister Convalescent Hospital, Inc. v. Rico (1975) 13 Cal.3d 660 .................0.0..00000. 12,14 In re Adoption ofAlexanderS. (1988) 44 Cal.3d 857 2...eeeeee 14 Kerl v. Dennis Rasmussen, Inc. (2004) 273 Wis.2d 106........0. 0.0.00... cece eee 6 Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541 2.20.0...eee eee 3 Leone v. Medical Board ofCalif. (2000) 22 Cal.4th 660 .......0...0 0.0.2.0... cc eee eee 14 Nichols v. Arthur Murray, Inc. (1967) 248 Cal.App.2d 610 .........0000.........00.. 3 People v. American Contractors’ Indemnity Co. (2004) 33 Cal.4th 653 2.2... cee cee eee 13 Rainey v Langen (Maine 2010) 998 A.2d 342 ... 0.0... 2. eee eee 6 li Slater v. Friedman (1923) 62 Cal.App. 668 .....0.0.000 0.0.0... cece eee 6 Constitution, Statutes and Rules: IS U.S.C. § 1125 2.ccceee eens 9 Cal. Constitution, Art. VI,§ 11 .....................2.... 13 Cal. Rules of Court, rule 8.268 ..........0.0.0..00000 0c cee aun 15 Cal. Rules of Court, rule 8.500 ......................... 1,10 Corporations Code section 31000 ................0. 0.00000. 9 Other Authorities: 9 Witkin, California Procedure 5th (2008) Appeal, §137...... 15 3 Witkin, Summary of Calif. Law 10th (2005) Agency, § 166 ...9 J. Eisenberg,et al., Civil Appeals & Writs (Rutter Gp., 2011 rev.) 2215ceeeee eee eee ene eees 13 ili ANSWERTO PETITION FOR REVIEW Taylor Patterson was sixteen when she wentto workfor Domino's Pizza in Thousand Oaks. One weeklater she began experiencing serious, unwelcome sexual harassmentfrom her supervisor.’ Domino’s employeestold the franchisee to “get rid of” the supervisor.” When herandherfather’s other complaints to local management and Domino's corporate offices went unheeded, she quit® andlaterfiled this action. The trial court granted Domino’s motion for summary judgmentbut the Court of Appeal reversed finding a triable issues of material fact on the question of whether Domino's franchisee wasalso its agent such that Domino’s would have vicarious responsibility for the franchisee’s misconduct. Domino's seeks review asserting twoissues, neither of which it raised properly below. First, it claims that California's well-established standardsfor vicariousliability of franchisors should be changed. Secondly, it claims Patterson’s appeal was untimely so that the Court of Appeal was without jurisdiction. i 1 JA 5-6. (JA = Joint Appendix.) ° Opn. 2. Domino’s did notfile a petition for rehearing challenging the factual statements in the Court of Appeal’s opinion. (Cal.Rules Court, rule 8.500, subd.(c)(2).) ; 1 JA 6-7. Domino’s did notraise the first claim at all below;it presented the second two days before the Court of Appeal’s opinion became final, well after the deadline for a petition for rehearing. But both mustbe rejected in any event. The Court of Appeal’s opinion does not create a conflict in the appellate decisions. Ratherit follows them and concludes, on the evidence presented, that triable issues of material fact exist. Patterson took her appeal from the only ruling in the case thetrial court andthe parties intended would be final judgment. To the extent they were mistaken, the mistake did not affect the Court of Appeal’s fundamental appellate jurisdiction and provides no cause to disturb the court's opinion. I. A franchisor is vicariously liable for acts of its franchisee if their relationship amounts one of principal and agent. Whether agencyexists is ordinarily a question of fact. The Court of Appeal’s opinion is but a modern application of these two well-settled principles. Although Domino's would have the Court believe otherwise, the Court of Appeal did nothing more than acknowledge and apply the well-settled principles for determining vicarious liability of a franchisor. The opinion provides no groundsfor the Court’s review. Domino’s simply does notlike the result. 2 Whethera franchisoris vicariously liable for injuries to a franchisee's employee dependson the natureof the franchise relationship. “[A] franchisee may be deemedto be the agentof the franchisor.” ( Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 547,[].) “The general rule is where a franchise agreementgives the franchisor the right to complete or substantial control over the franchisee, an agency relationship exists.” ( Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284, 1288,[]is the right to control the means and mannerin which the result is achieved thatis significant in determining whethera principal-agency relationship exists.’ ” ( Ibid.) Consequently, a franchisee may be found to be an agent of the franchisor even where the franchise agreementstates it is an independent contractor. ( Kuchta, at p. 548,[].) If the franchisor has substantial control over the local operationsof the franchisee, it may potentially face liability for the actions of the franchisee's employees. ( Nichols v. ArthurMurray, Inc. (1967) 248 Cal.App.2d 610,[]) (Opn.3.) The authorities cited by the court reflect a body of case law that has developed over the years into today’s standards. The parties relied exclusively on that law in the Court of Appeal. A quick scan of Domino's Respondent’s Brief reflects it relies on the very cases cited above in the opinion. “[A] principal-agency relationship exists only whenthe franchisor retains complete or 3 substantial control of the franchisee’s business.” (RB 11.) The Court of Appeal applied that principle in its opinion. “But the franchisor maybe subject to vicarious liability where it assumes substantial control over the franchisee's local operation,its management-employee relations or employeediscipline. (Citations.)” (Opn.4.) In applyingthat principle, the court exercisedits independent judgment on whether the evidence presented by the parties wassuch that Domino's wasentitled to judgment as a matter of law. It was not, said the court. Like most questions involving whether a principal-agentrelationship exists, this one involved issues of fact. “Patterson met her burden to showtriable issues of fact involving the extent of Domino’s control over [the franchisee].” (Opn. 8.) In other words, the opinion breaks no new groundorblurs lines previously drawn. Whetheror not the franchisee was Domino's agent turns on whetherit had “substantial control” of the franchisee’s business and that is a question of fact on this record. It is nothing more than a modern application of settled law that needs no further refinement from this Court. But Domino's wants a new rule. Citing a “modern trend” supposedly supporting its view, Domino’s would have the Court promulgate a new test that would “focus” on the “activities that relate to the conductat issue.” (Pet. 3.) Instead of a “simple 4 agency analysis,” the franchisor must havecontrolof the particular “instrumentality” that causes harm. (Pet. 12.) In other words,if Domino's dictates the brand of pepperoni and the victim is poisoned by it, Domino’s might be liable but notif the victim slips on a greasy pizza carton left uncollected where Domino's has not promulgated rules for policing the public areas.* But Domino's never raised this issue in the Court of Appeal in its Respondent's Brief or by way of Petition for Rehearing. Ratherit stood by its position that, under the existing case law, the evidence established that its franchisee was an independent contractor becauseit lacked substantial control over the franchisee. (RB 42.) So the Court of Appeal was nevercalled upon to address the issue in thefirst instance. Domino’s advances no argument why the Court should consider the issue and depart from its policy not to do so. Moreover, the so-called “modern standard”or trend Domino’s refers to is merely a productof its wishful thinking. The cases on whichit relies either come from jurisdictions that have 4 The point is rhetorical. Domino's does,in fact, dictate to franchisees the procedures for “Refuse Collection and Removal.” (2 JA 458-459.) 5 Cal. Rules of Court, rule 8.500, subd. (c)(1). “As a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal.” markedly different standards of respondeat superior than does California or do not actually employ the test it urges. Domino's relies heavily on Wisconsin law, for example. (Pet. 3, 11, 12.) But in Wisconsin, a principal is not necessarily vicariously responsible for the acts of its agents. “The master/servantrelationship is a species of agency;all servants are agents but not every agentis a servant. (Citations.) Unless an agent is also a servant, his principal will not be vicariously liable for his tortious conduct except undercertain limited circumstances.” (Kerl v. Dennis Rasmussen, Inc. (2004) 273 Wis.2d 106, 116.) No such distinction exists in California. (Slater v. Friedman (1923) 62 Cal.App. 668, 672.) Wisconsin law cannot provide any guidanceonthis issue. The other jurisdictions Domino’s points to employ a “right- to-control” test that bears no difference from California’s agency test. For example, Maine adopted such a test in Rainey v Langen (Maine 2010) 998 A.2d 342, 347. “In evaluating the requisite level of control, courts commonly distinguish between control over a franchisee's day-to-day operations and ‘controls designed primarily to insure ‘uniformity and the standardization of products andservices.’ (Citations.)” Underestablished California law applied here by the Court of Appeal, this right of control is the salient feature in determining the existence of a principal-agent relationship. “[A franchisor] may control its trademarks, products and the quality of its services. But the franchisor may be subject to vicarious 6 liability where it assumes substantial control over the franchisee's local operation, its management-employee relations or employee discipline.” (Opn. 4.) To the extent the sister-state cases utilize different phraseology in their formulations, the distinctions are without difference. The Court of Appeal recited a litany of factors in the Domino's-franchisee relationship from which it concluded triable issues of material fact existed as to whether the franchisee was an agent. In the area of personnel managementalone,it pointed to: Domino's Manager's Reference Guide (MRG)* describes the specific employment hiring requirementsforall “personnel involved in productdelivery,” and it describes the documents that mustbe included in their personnelfiles.It requires all employees to submit “[t]ime cards and daily time reports.” It specifies standards for employee hair, facial hair, “[d]yed hair,” jewelry, tattoos, fingernails, nail polish, shoes, socks, jackets, belts, gloves, watches, hats, skirts, visors, body piercings, earrings, necklaces, wedding 6 The Mater Reference Guide has 23 sections covering everything from “Product” to “Learning and Development”to “Human Resources”to “Sanitation.” (2 JA 444.) The “Standards” section alone is over 100 pages, single-spaced with small type, andlists standards for every aspect of a franchisee’s operation. (2 JA 445 - 3 JA 563.) 99 6rings, “[tlongue rings,” “clear tongue” retainers, and undershirts. (Opn.5-6.) In addition, the franchisee testified by deposition that “Domino's provided guidelines about the employeeshe could hire. They hadto ‘look and act a certain way,’ and he implemented those policies when he hired applicants. Domino's guidelines also included policies on employee “attendance” and sexual harassment. Poff's [the franchisee] testimony suggests that Domino's oversightof his franchise was extensive.” (Opn.7.) Altogether, the Court of Appeal devoted over four pagesofits nine-page typed opinion describing the overwhelmingindicia of control that Domino’s exercised over this particular franchisee. (Opn. 4-8.) And noneof them could be justified as defense of the trademarkor brand. Domino’s wants an outright departurefrom the settled California concepts of agency and respondeat superior. The doctrine of respondeatsuperioris “‘a rule of policy, a deliberate allocation of a risk. The losses caused bythetorts of employees, which as a practical matter are sure to occur in the conductof the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business.” (Hinman v. WestinghouseElec. Co. (1970) 2 Cal.3d 956, 959-960.) “[T]hree reasons exist for applying the doctrine: (1) to prevent recurrenceof the tortious conduct, (2) to give greater assurance of compensation for the 8 victim, and (3) to ensurethatthe victim's losses will be equitably borne by those whobenefit from the enterprise that gaverise to the injury. (Citations.)” (3 Witkin, Summary of Calif. Law 10th (2005) Agency, § 166, p. 210.) Thus understood, the doctrine of respondeat superior applies with full force under the settled principles wheneverfranchisors exercise substantial control over franchisee operationsso as to characterize their relationships as ones of agency. Domino’s refers to whatit calls the “highly regulated” nature of the franchise industry and the needto protect its brand. But nothing in the Franchise Investment Law’ speaks to relations between the franchised business and its employees or third parties. Nothing in the Lanham Act® directs the form of business entity a trademark holder mustutilize. Domino’s wants to have all the benefits of its national “brand,” controlling the minutia of its franchisees’ operations, without any of the responsibilities, leaving victims such as Patterson to pursue financially-irresponsible franchisees.” Even if the Court were inclined to consider this belatedly-asserted issue, no reason exists to adopt a newrule that finds support only 7 Corp. Code, § 31000,et seq. 8 15 U.S.C., § 1125. ? The Court of Appeal observed that the franchisee here went bankruptinstead of defending the action. (Opn.2.) 9 in jurisdictions that view agency andvicarious responsibility differently from California. Il. The Court of Appeal treated the judgment from which the appeal was taken as the one,final judgmentjust as the trial court and parties intended. Domino’s motion to dismiss came far too late in any event. In resolving issues that could limit a party's right to appeal, the Court has followed the well-established policy of “according [the] right [to appeal] in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ (Citations.)” (Alan v. American Honda MotorCo., Inc. (2007) 40 Cal.4th 894, 901.) No violence occurs where, as here, the trial court, the plaintiff Patterson, the Court of Appeal and the Domino's defendants all intended and treated the June 20, 2011 judgmentasthe one,final judgmentin the case. (4 JA 856-871.) Only Domino’s new lawyer, apparently hired after the time to petition for rehearing had expired, sees the case differently. Just two days before the Court of Appeal’s decision becamefinal, Domino’s filed a motion to dismiss, citing the principle that a void 10 judgmentcan be attackedat any time.’° The decision became final without the Court of Appeal issuing a formalruling." Although the April 11, 2011 “Judgment” seemingly resolved all the causesof action of Patterson against Domino’s, the trial court’s and parties’ subsequent actions demonstrate that the no one intendedit to be a judgment from which an appeal could be taken. (4 JA 859-871.) The June 21 judgmentrefers to the former as “an interlocutory judgmentof dismissal” and describes itself as the “final judgment.” (4 JA 885, 886.) The transcript of the June 7 hearing on plaintiffs motion to tax costs reflects the trial court’s understanding of the effect of the prior ruling. (RT 9.) After counsel for Patterson expressed his view that the prior ruling might be appealable (and there wasstill time to do so), the court stated: I don’t think you can appealit. I think you need to — I think you need final judgment. Solet’s get a final judgment prepared immediately as soon as the dismissals come in. (RT 9-10.) ‘© Domino’s does not address the Court's policy of not considering issues that were not timely raised below. (Cal.Rules of Court, rule 8.500, subd. (c)(1).) nN In this regard, Domino’s mis-speaks whenit refers to a “ruling” of July 30. (Pet. 1 and Exhibit B.) Exhibit B is nothing more that a printout from the Court of Appeal’s online docket with the clerk’s notation that the motion was denied by operation of law. 11 So Patterson waited for that final judgmentandfiled her notice of appeal some 45 dayslater. (4 JA 890.) In her opening brief she laid out the sequence of events and pleadings, describing the April 21 judgmentas interlocutory and the June 21 judgment as the “final judgment.” (AOB 3-4.) In its brief, Domino's did not even reference the April judgment but simply referred to the June 21 judgmentas the operative one. “It is from that final judgment that Appellant has brought forth this appeal. (RB 3.) Asthis Court has noted, there are many cases in which the policy of recognizing the right of appeal in doubtful cases, “implemented in accordance with ‘applicable rules,’ will lead to a determination, based on construction and interpretation, that timely and proper notice of appeal must be deemedin law to have been filed within the jurisdictional period.” (Hollister Convalescent Hospital, Inc. v. Rico (1975) 13 Cal.3d 660, 674.) This is such a case. And the Court must presumethat the Court of Appeal thoughtso, too. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [judgments are presumedcorrect].) A further problem with Domino’s eleventh-hourposition is that it confuses void and voidable judgments. A judgment entered where the court lacks fundamental jurisdiction is said to be void while one where the court's jurisdiction can be exercised in only one wayis said to be voidable. “‘Lack of jurisdiction in its most fundamental or strict sense meansan entire absence of powerto hear or determine the case, an absenceof authority over 12 the subject matter or the parties.’ (Citations.)” (People v. American Contractors’ Indemnity Co. (2004) 33 Cal.4th 653, 660.) The conceptof lack ofjurisdiction can also “‘be applied to a case where, though the court has jurisdiction over the subject matter and theparties in the fundamental sense,it has no‘jurisdiction’ (or power) to act except in a particular manner,or to give certain kindsof relief, or to act without the occurrence of certain procedural prerequisites.’ (Citation.) ‘[W]hen a statute authorizes {a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceededits jurisdiction.” (Citation.)Ud., at p. 661.) “When a court has fundamental jurisdiction, but acts in excessofits jurisdiction, its act or judgmentis merely voidable. (Citations.)” (Ibid.) Underthis circumstance, “its act or judgmentis valid until it is set aside, and a party may be precludedfrom setting it aside by principles of estoppel, disfavor of collateral attack or res judicata.’ (Citation.)” Ubid.) Here, the Court of Appeal had fundamentaljurisdiction conferred by the California Constitution. The courts of appeal have “appellate jurisdiction when superior courts haveoriginal jurisdiction.” (Cal. Const., Art. VI, § 11.) “Appellate jurisdiction” refers to the reviewing court's power to review for and correct error in trial court judgments and orders. That constitutionally- conferred poweris distinct from civil litigants’ right to obtain review,whichis notof constitutional dimension.” (J. Eisenberg, et al., Civil Appeals & Writs (Rutter Gp., 2011 rev.) J[ 2:15, p. 2-13 13 citing Leone v. Medical BoardofCalif. (2000) 22 Cal.4th 660, 666-668.) All the cases dealing with the timeliness of a notice of appeal speak ofjurisdiction in the sense that the appellate courts, once a matter is before them, mayact in only one way. (See, e.g., Hollister Convalescent Hospital, Inc. v. Rico, supra,13 Cal.3d at p. 674 [court “lacks all power to consider the appeal on its merits and must dismiss, on its own motion if necessary”].) This is the hallmarkof a voidable, not void, judicial act. The Court has indicated that exceptions mayexist to the timeliness requirement. (In re Adoption ofAlexander S. (1988) 44 Cal.3d 857, 865.) Were the matter one of fundamental jurisdiction, no exceptions could be said to exist. The Chief Justice, writing for the Court of Appeal in a case cited by Domino's, madethedistinction. “‘Speaking generally, any acts which exceed the defined powerof a court in any instance, whetherthat powerbe defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed underthe doctrine of stare decisis, are in excess of jurisdiction....’ (Citation.) The distinction is critical, because ‘[a]ction “in excess of jurisdiction” by a court that has jurisdiction in the “fundamental sense”(i.e., jurisdiction over the subject matter and the parties) is not void, but only voidable. 14 (Citations.)” (Fireman’s FundIns. Co. v. Worker’s Compensation Appeals Bd. (2010) 181 Cal.App.4th 752, 767 [emphasisoriginal].) In other words, presented with an untimely appeal, an appellate court may bestatutorily constrained to exercise that jurisdiction only one way-to dismiss. Butits failure to do, particularly in light of the absence of objection from the respondentbefore the timeto file a petition for hearing has expired, does not render its judgment void. Domino’s had a doubly-long period after the Court of Appeal rendered judgment in this case to call jurisdiction into question. Theoriginal judgmentwasfiled on June 4, 2012 and ordered published on June 27. Domino’s missed two rehearing deadlines before new counsel filed the motion to dismiss. (Cal. Rules of Court, rule 8.268.) Nothing aboutthis aspect of the case makesit a worthy candidate for review. Since Domino’s neverraised the issue in timely way, the opinion belowis silent on it. Witkin describes the situation wherethe parties mistakenly treat a final judgmentas interlocutory as “rare.” (9 Witkin, Cal. Proc. 5th (2008) Appeal, § 137, p. 210.) Under the unique circumstancesof this case, the Court of Appeal waswell within its discretion to reject, by operation of law, the tardy motion to dismiss. 15 CONCLUSION Nothing worthy of this Court’s intervention attends this case. Neither issue presented was raised in a timely manneror at all. The merits turn on disputed issues of fact driven by the conflicting evidence. Did Domino’s exercise substantial control overits franchisee? No need exists for a different test and policy considerations militate against one. Likewise, no basis exists to disturb the Court of Appeal’s judgment as a matterof procedure. No “violence to applicable rules” will be worked. Thepetition should be denied. Dated: August 23, 2011 ALAN CHARLES DELL’ARIO, P.C. WINER & MCKENNA, LLP Alan Charles Dell’Ario Attorneys for Taylor Patterson 16 WORD COUNT CERTIFICATE I certify that the foregoing Answerto Petition for Review contains 3,449 words as returned by WordPerfect X5. (Choteuydui Alan Charles Dell’Ario 17 PROOF OF SERVICE BY MAIL I declare that: I am employed in the County of Alameda, California. I am over the age of eighteen years and not a party to the within cause; my business address is 1970 Broadway, Suite 1200, Oakland, California 94612. On August 23, 2012, I served the within Answerto Petition for Review on the below namedparties in said cause, by placing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States mail at Oakland, California addressed as follows: Kolar & Associates Snell & Wilmer LLP Elizabeth L. Kolar Mary-Christine Sungaila 12241 Newport Ave. 600 Anton Blvd., Suite 1400 Santa Ana, CA 92705 Santa Ana, CA 92626 Hon. Barbara Lane Court of Appeal Ventura County Superior Court Second Appellate District, Division Six 800 S. Victoria Ave. 200 East Santa Clara Ventura, CA 93009 Ventura, CA 93001 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on August 23, 2012 at Oakland, California. ().¢Lortnls Alan Charles Dell’Ario