NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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(San Francisco County Super. Ct. No. CGC15549608)
Mark Strehlow appeals from the denial of his special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) Strehlow rented an apartment in San Francisco owned by Mary Nichols. When Nichols informed Strehlow she intended to sell his apartment, Strehlow claimed to be a disabled tenant. Nichols filed a lawsuit seeking, among other things, a judicial declaration Strehlow was not disabled. Strehlow filed a special motion to strike the complaint, which the trial court denied. Strehlow contends the trial court erred because his disability claim was protected activity within the meaning of the anti-SLAPP statute. Strehlow also contends Nichols cannot establish a probability of prevailing on the merits. We affirm.
Unless noted, all further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Nichols owns a two-unit building in San Francisco. In 2004, Strehlow signed a written lease with Nichols and moved into the three-bedroom, upstairs apartment. In October 2015, Nichols sent Strehlow a letter stating she planned to sell his unit. Nichols's realtor sent Strehlow a "Request for Information Under . . . the San Francisco Residential Rent Stabilization and Arbitration Ordinance" (the estoppel certificate). The form stated: "[T]he San Francisco Residential Rent Stabilization and Arbitration Ordinance . . . provide[s] that within 30 days of personal service on you of this request for information, you must submit a statement, along with supporting evidence, to the landlord, if you claim to be a . . . protected [tenant] . . . . Failure to submit a statement to your landlord with supporting evidence within the 30-day period shall be deemed an admission that you are not protected . . . ."
The following facts are taken from Nichols's complaint, and the declarations and evidence submitted in connection with Strehlow's special motion to strike. (§ 425.16, subd. (b)(2).) Strehlow's opening brief contains virtually no citations to the record as required by California Rules of Court, rule 8.204(a)(1)(C). Parties are "required to provide specific page citations to the record to support their factual recitations in their briefs. [Citations.] The court is not required to make an independent search of the record and may disregard any claims when no reference is furnished." (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406.) While Strehlow attaches to his opening brief pages of the record as permitted by California Rules of Court, rule 8.204(d), conspicuously absent from the attachments are their page numbers from the Clerk's Transcript.
The document stated "certain tenants cannot be evicted from occupancy of their units for use by an owner or his or her relatives." Protected tenants include "disabled tenants who have resided in the unit for 10 years or more . . . . You are disabled if you are disabled . . . within the meaning of the Federal Supplemental Security Income/California State Supplemental Program (SSI/SSP) and are determined by SSI/SSP to qualify for that program, or you satisfy such requirements through any other method of determination as approved by the Rent Board."
After receiving guidance from the rent board, Strehlow returned the estoppel certificate to Nichols. Strehlow stated he was "disabled and has been diagnosed with tinnitus auriums, nocturnal myopia, renal lithiasis, nephrolithiasis, L5-S1 herniated nucleus pulposus with lateral recess stenosis and pinched sciatica nerve. He has undergone microdiscetomy surgery on his back . . . [and] requires ongoing treatment for all the above conditions."
The Underlying Litigation
Nichols filed a complaint against Strehlow alleging causes of action for declaratory relief, intentional and negligent interference with prospective economic advantage, and elder abuse. Nichols sought a judicial declaration Strehlow was not a protected tenant under the San Francisco Residential Rent Stabilization and Arbitration Ordinance (the rent ordinance). Nichols alleged Strehlow claimed to be disabled on the estoppel certificate to make it more difficult for her to sell his unit. Nichols further alleged Strehlow had "no significant mental or physical impairments rising to the level of being disabled . . . because . . . he works full time without restriction, [and] is physically active, having even done the Alcatraz triathlon."
In her cause of action for intentional interference with prospective economic advantage, Nichols alleged Strehlow "has acted to prevent a sale of the property" and to discourage prospective buyers because he wanted to buy the unit himself, and that he knew Nichols's economic circumstances were forcing her to sell. She alleged Strehlow offered to purchase the unit for "almost $500,000.00 less than fair market value." Nichols alleged she has been damaged by Strehlow's conduct because she has been unable to sell the unit.
The Special Motion to Strike
Strehlow moved to strike the complaint pursuant to section 425.16, arguing "making a claim of disability . . . on an estoppel certificate is protected activity" because he made the claim in anticipation of defending an eviction action and it was "a legally required pre-requisite for asserting his disability eviction defenses in an unlawful detainer [action] . . . ." Strehlow also contended his disability claim was made in furtherance of his constitutional rights of free speech and petition in connection with an issue of public interest.
Asserting he had met his threshold burden that the challenged cause of action arose out of protected activity, Strehlow further argued Nichols could not establish a probability of prevailing on the merits because she had no evidence to refute his claim of disability. In a supporting declaration, Strehlow averred that tinnitus auriums impacted his ability to sleep and concentrate, nocturnal myopia made it difficult for him to see and drive at night, and renal lithiasis caused severe pain requiring hospitalization. He also stated he suffered from lumbar degenerative disc disease, which limited his ability to sit and stand in one position for extended periods, and has undergone surgery to alleviate a herniated disc that severely pinched his sciatic nerve. He has ongoing back pain and stiffness, and continues to undergo treatment and physical therapy. Strehlow requested an award of attorney's fees and costs.
In opposition, Nichols argued Strehlow could not establish his disability claim was protected activity. According to Nichols, Strehlow's concern about defending an owner move-in eviction was "sheer speculation" because the rental unit had not been sold, and an unlawful detainer action was not contemplated in good faith and under serious consideration. Nichols argued it was probable she would prevail on the merits because Strehlow's employment made it impossible for him to qualify as disabled. Nichols's attorney filed a declaration attaching printouts from LinkedIn and other websites to show Strehlow's employment. Nichols requested an award of attorney's fees incurred opposing the motion, which, she argued, was both frivolous and intended to cause delay.
In reply, Strehlow reiterated his arguments from his opening memorandum of points and authorities, and Strehlow argued the rent board can determine a tenant is disabled even if he works. Strehlow also objected to the evidence in support of Nichols's opposition.
At the hearing on the motion, the trial court denied it. In a written order, the trial court concluded Strehlow "failed to sustain . . . [his] burden under CCP 425.16's first prong. [Strehlow's] claim for disability is not protected activity within the meaning of CCP 425.16(e)(1) or (4). [Strehlow's] claim is not conduct in 'connection with a public issue or an issue of public interest.' [Strehlow's] claim also was not made in 'relat[ion] to litigation that is contemplated in good faith and under serious consideration.' " The court's order did not address the second prong of the anti-SLAPP analysis, and did not rule on Strehlow's evidentiary objections, or rule on Nichols's request for attorney's fees.
On appeal, Strehlow argues his disability claim was protected activity and Nichols did not show a probability of prevailing on the merits.
Governing Law and Standard of Review
Section 425.16 authorizes a defendant to file a special motion to strike when a cause of action arises from "any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . ." (§ 425.16 (b)(1).) The purpose of the statute is to curb the chilling effect certain litigation may have on the valid exercise of the rights of free speech and petition for the redress of grievances, and courts interpret the statue broadly to accomplish that goal. (§ 425.16, subd. (a).)
There are two prongs to the anti-SLAPP analysis. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)' [Citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) We review orders granting or denying a special motion to strike under section 425.16 de novo. (Contreras v. Dowling (2016) 4 Cal.App.5th 774, 785 (Contreras).)
Strehlow Did Not Meet His Burden of Showing His Disability Claim Is Protected, Pre-
Strehlow contends his disability claim on the estoppel certificate was "a protected, pre-litigation communication." We disagree.
A. Protected Pre-Litigation Activity
An " 'act in furtherance of a person's right of petition or free speech . . .' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, . . . or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
"[S]ection 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body." (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113 (Briggs).) "Thus, statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute . . . ." (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) "The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16." (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 (Birkner).)
Courts look to the litigation privilege of Civil Code section 47, subdivision (b), "as an aid in construing the scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry." (Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323 (Flatley); Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263 (Neville); Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479 (Feldman).) " '[J]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such statements are equally entitled to the benefits of section 425.16.' " (Briggs, supra, 19 Cal.4th at p. 1115; accord, Flatley, supra, 39 Cal.4th at p. 322, fn. 11.) Nevertheless, "the litigation privilege and the anti-SLAPP statute are substantively different statutes that serve quite different purposes." (Flatley, supra, 39 Cal.4th at p. 322.)
Courts view a pre-litigation communication as privileged under Civil Code section 47 if it "relates to litigation that is contemplated in good faith and under serious consideration." (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.) Similarly, courts construe the anti-SLAPP statute as protecting pre-litigation communications if they concern the subject of the dispute and are made in anticipation of litigation contemplated in good faith and under serious consideration. (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 824 (Anapol); Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789-790; Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 887; Neville, supra, 160 Cal.App.4th at p.1268.)
In certain types of actions, it is necessary to serve or record a document prior to the commencement of litigation, and courts consider the satisfaction of these statutory prerequisites as protected pre-litigation conduct. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285 [recording of notice of rescission as necessary prerequisite to filing rescission action]; Feldman, supra, 160 Cal.App.4th at p. 1480 [service of notice to quit as statutory prerequisite to filing unlawful detainer action]; Birkner, supra, 156 Cal.App.4th at p. 282 [service of notice terminating tenancy as prerequisite to filing unlawful detainer action].) This conduct is protected because it is preparatory to, or in anticipation of, bringing an action. (Feldman, supra, 160 Cal.App.4th at p. 1480.)
B. Strehlow's Disability Claim Was Not Protected Pre-Litigation Activity
"The first prong of the anti-SLAPP analysis involves two related inquiries: (1) whether the Complaint alleges activity protected by section 425.16 and (2) whether the cause or causes of action alleged arise from those activities." (Contreras, supra, 4 Cal.App.5th at p. 788.) Relying on Birkner, Strehlow contends his disability claim was protected activity because it was "a legally required pre-requisite for asserting protected disability status as an affirmative defense to an unlawful detainer action . . . ." We are not persuaded the anti-SLAPP statute protects Strehlow's disability claim.
Birkner does not assist Strehlow. In Birkner, the landlord served a termination notice, and sought possession of the plaintiffs' apartment to allow his mother to reside in the building. (Birkner, supra, 156 Cal.App.4th at p. 279.) The tenants told the landlord he could not evict them because they were protected tenants, but the landlord refused to rescind the notice. (Ibid.) Shortly afterwards, the landlord's mother died, so he did not file an unlawful detainer action. (Ibid.) The tenants sued the landlord for violation of a rent ordinance, negligence, breach of the covenant of quiet enjoyment, and intentional infliction of emotional distress. (Id. at p. 278.) The landlord moved to strike the complaint. (Ibid.) Both the landlord and his attorney filed declarations stating that if the landlord's mother had not died, they would have filed an unlawful detainer action. (Id. at p. 280.) The trial court denied the landlord's special motion to strike, but the court of appeal reversed, viewing the landlord's service of the termination notice, and his refusal to rescind it, as communications preparatory to and in anticipation of litigation. (Id. at pp. 278, 280, 284-285.) Thus, the Birkner court determined the tenants' complaint arose from the landlord's acts in furtherance of the landlord's right to petition. (Id. at p. 283.)
Here, in contrast to Birkner, Strehlow has not shown the complaint filed against him arose from conduct in furtherance of his right to petition. In her complaint, Nichols alleged she was actively marketing an interest in her two-unit building, that Strehlow falsely claimed in the estoppel certificate to be a disabled tenant, and Strehlow did so to discourage prospective buyers, and to force Nichols to sell the interest to him at a price below market value. There is nothing in Nichols's complaint to suggest Strehlow's disability claim was a prerequisite to a lawsuit he intended to file, nor does he argue it was.
Instead, Strehlow argues his disability claim was a legally required prerequisite to preserving an affirmative defense in an unlawful detainer action. But Nichols did not serve Strehlow with a termination notice or otherwise indicate she intended to evict him. Instead, she told him she planned to sell his unit, and her realtor sent the estoppel certificate to ascertain whether he claimed to be a disabled tenant, a matter of obvious interest to prospective purchasers. Strehlow points out that "[i]t is no secret that new owners evict long-term, rent-controlled tenants, especially in buildings with two units." But the mere possibility a new owner might seek to evict Strehlow is not sufficient to show litigation was anticipated or under serious consideration when he made his disability claim. (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 ["The statute does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding."]; Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 36 ["the mere potential or 'bare possibility' that judicial proceedings 'might be instituted' in the future is insufficient to invoke the litigation privilege"].)
Citing Beach v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82 (Beach), Strehlow points out that the right of petition "is not one way. Just as a plaintiff invokes the right of petition by filing a lawsuit or seeking administrative action, a defendant, when responding to such an action, exercises the same constitutional right." (Id. at pp. 93-94.) But Strehlow was not responding to an action; he was protecting his ability to possibly assert an affirmative defense. "[T]he fact that a dispute exists that might ultimately lead to [a judicial proceeding] does not make every step in that dispute part of a right to petition." (Beach, supra, 110 Cal.App.4th at p. 94.)
In his opening brief, Strehlow cites California Physicians' Service v. Superior Court (1992) 9 Cal.App.4th 1321 in support of his contention that "[s]tatements made in furtherance of affirmative defenses are protected." At oral argument, Strehlow relied on this case to argue taking the steps necessary to preserve an affirmative defense constitutes protected activity under the anti-SLAPP statute. But California Physicians' Service concerned neither pre-litigation conduct, nor the anti-SLAPP statute. Instead, the court held the litigation privilege protected statements made in a defensive legal pleading, an answer to a complaint. (Id. at pp. 1324, 1330.) Unlike the affirmative defenses in California Physicians' Services, Strehlow's disability claim on the estoppel certificate was not part of a legal pleading. While affirmative defenses are privileged publications under Civil Code section 47, subdivision (b), it does not follow that the anti-SLAPP statute is designed to protect the ability to possibly assert an affirmative defense to litigation the actor speculates may be filed against him. (See Flatley, supra, 39 Cal.4th at p. 325 [rejecting argument that activity privileged under the litigation privilege "is necessarily protected under the anti-SLAPP statute."].)
It is Strehlow's burden to demonstrate he made his disability claim in connection with litigation contemplated in good faith and under serious consideration. (Anapol, supra, 211 Cal.App.4th at pp. 828-830 [affirming denial of anti-SLAPP motion where attorneys failed to make prima facie showing they submitted insurance claims in anticipation of litigation].) In his reply brief, Strehlow attempts to distinguish cases like Anapol by arguing claims for contractual benefits are different from claims that are statutory prerequisites to litigation. This argument is not persuasive. First, as we have explained, Strehlow has not shown his disability claim was a statutory prerequisite to litigation he intended to file. Second, depending on the circumstances, an insurance claim can be either or both a claim for contractual benefits or a prerequisite to litigation. (Id. at p. 827.) Courts must consider the circumstances to determine if the defendant submitted the claim in anticipation of litigation. (Ibid.) Those circumstances were not present in Anapol. (Id. at pp. 827-830.) They are also not present here.
As pointed out in Birkner, the bar is low for satisfying the first prong of the anti-SLAPP analysis: "[it] is satisfied so long as the record does not show as a matter of law that [the movant's] conduct had 'no "connection or logical relation" to an action and [was] not made "to achieve the objects" of any litigation.' " (Birkner, supra, 156 Cal.App.4th at p. 284.) Strehlow fails to satisfy this low bar. He does not show his disability claim was connected or related to an action or made to achieve the objects of any litigation. Thus, he fails to show Nichols's complaint alleged or arose from protected activity. Consequently, we do not need to determine whether Nichols demonstrated a probability of succeeding on the merits. The trial court correctly denied Strehlow's anti-SLAPP motion.
C. Nichols's Request for Attorney's Fees
Nichols argues we should award her costs and reasonable attorney's fees. Section 425.16, subdivision (c)(1), provides: "If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." Section 128.5, subdivision (a), provides: "A trial court may order a party, the party's attorney, or both to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay."
The court's order denying Strehlow's special motion to strike was silent regarding attorney's fees. We asked the parties to provide supplemental briefing addressing whether we have jurisdiction to consider Nichols's request for attorney's fees under this circumstance. Having reviewed the supplemental briefing, we conclude we do not have jurisdiction to consider Nichols's request.
"An order granting or denying a special motion to strike shall be appealable under Section 904.1." (§§ 425.16, subd. (i); 904.1, subd. (a)(13).) If a court denies an anti-SLAPP motion, and, in the same order, grants or denies the prevailing party's request for attorney's fees, then we can review both rulings on appeal from the order on the anti-SLAPP motion. (Baharian-Mehr v. Smith (2010)189 Cal.App.4th 265, 273-275 (Baharian-Mehr), disagreeing with contrary dicta in Doe v. Luster (2006) 145 Cal.App.4th 139, 150 (Doe); Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 680, fn. 2; Moore v. Shaw (2004) 116 Cal.App.4th 182, 186.) Here, the order denying Strehlow's anti-SLAPP motion did not address whether the motion was frivolous or solely intended to cause unnecessary delay, and it did not grant or deny Nichols's request for attorney's fees.
As a general matter, "[a] postjudgment order awarding attorney fees is separately appealable," and "failure to appeal an appealable order ordinarily deprives the appellate court of jurisdiction to review the order." (R.P. Richards, Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 158; Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 631-632 (Martin) [in the SLAPP context].) There is an exception where a judgment expressly recognizes an entitlement to attorney's fees, but the amount is determined in a later order. As the courts have observed, "requiring a separate appeal from [the fee] order when the judgment expressly makes an award of costs and/or fees serves no apparent purpose." (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997, italics omitted.) However, when a judgment is silent as to a particular party's entitlement to fees, a separate notice of appeal must be filed from any subsequent fee order. (Robinson v. City of Yucaipa (1994) 28 Cal.App.4th 1506, 1517-1518.)
In her supplemental letter brief, Nichols makes multiple arguments as to why we have jurisdiction to consider her request for attorney's fees, none of which have any merit. Importantly, it was Nichols who failed to obtain a ruling on her request for attorney's fees. Having failed to obtain a ruling and an order, her arguments regarding jurisdiction fail.
First, in her attempt to distinguish Martin, supra, 198 Cal.App.4th at pp. 631-632, Nichols concedes she filed no motion for attorney's fees and she obtained no ruling regarding attorney's fees. Without authority, Nichols flatly declares "no separate appeal, or cross-appeal was required for this Court to have jurisdiction over the fees' [sic] issue." Her claim is meritless. Second, as to Doe, supra, 145 Cal.App.4th at pp. 146-147, Nichols infers the case is distinguishable because "[i]t does not address an appeal that encompasses both the anti-SLAPP decision and an attorneys' fees decision . . . ." Of course, there was no attorney's fee decision in the appeal before us. As we have explained, we have no jurisdiction. Third, Nichols claims her situation is "closer" to Baharian-Mehr, supra, 189 Cal.App.4th at pp. 274-275, where the court held it had jurisdiction over the attorney's fees issue because the anti-SLAPP decision "encompassed an attorneys' fees decision." But here the anti-SLAPP decision did not address attorney's fees so Baharian-Mehr is not analogous.
Nichols proffers a number of "other approaches to find appellate jurisdiction," and suggests we provide instructions to the trial court. We have considered those arguments, and we reject them. Finally, Nichols asserts the appeal is frivolous and merits sanctions. We decline to consider Nichols's claim. Nichols has not filed a motion in this court for attorney's fees as sanctions for filing a frivolous appeal under California Rules of Court, rule 8.276. For these reasons, we do not address Nichols's request for attorney's fees.
D. Ancillary Matters
Both Strehlow and Nichols discuss DeLaura v. Beckett (2006) 137 Cal.App.4th 542 (DeLaura), in which Division Three of the First Appellate District affirmed the trial court's sustaining of a demurrer where the landlord sought a declaration her tenant was not protected under the rent ordinance. (Id. at pp. 543-544.) Nichols requests that we overrule DeLaura. But DeLaura, which discusses the standard for seeking declaratory relief, has no relevance to our analysis of Strehlow's anti-SLAPP motion. We decline to opine on DeLaura in obvious dicta. We also deny Nichols's request for judicial notice of official government records posted on two websites because the request pertains to Nichols's arguments DeLaura should be overruled, and to her argument that she would likely prevail on the merits. As explained above, there is no need for us to consider these arguments.
Nichols also requests that we transfer this case to Division Three so that it can overrule DeLaura. We decline to entertain this suggestion. (Ct. App., First Dist., Internal Operating Practices and Proc., III A.2.) --------
Finally, in his reply brief, Strehlow states Nichols and her attorney should be sanctioned for stating Strehlow offered to purchase Nichols's rental unit for half a million dollars less than market value. Nichols made the same allegation in her complaint, but there is no indication Strehlow sought sanctions in the trial court, or on what basis he could seek sanctions. We deny Strehlow's request for sanctions in this court because Strehlow has not filed a motion or supporting declaration. (Cal. Rules of Court, rule 8.276.)
The order denying Strehlow's special motion to strike is affirmed. Nichols is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________