Filed 1/31/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re R.H., a Person Coming 

Under the Juvenile Court Law.

2d Juv. No. B282855

(Super. Ct. No. J070951)

(Ventura County)

VENTURA COUNTY HUMAN

SERVICES AGENCY,

 Plaintiff and Respondent,

v.

A.N.,

 Defendant and Appellant.

A.N. (mother) appeals the juvenile court’s order 

terminating her parental rights to R.H., an Indian child, and 

selecting adoption as his permanent plan. (Welf. & Inst. Code,1

§ 366.26.) Mother contends the court erred in finding good cause 

to depart from the placement preferences set forth in the Indian 

 

1 All statutory references are to the Welfare and 

Institutions Code unless otherwise stated.
2

Child Welfare Act (ICWA).2 She also asks us to take as 

additional evidence a letter her appellate counsel received from 

R.H.’s tribe over three months after the judgment was rendered 

indicating that the tribe—which repeatedly declined the 

opportunity to intervene below—wants to “be involved in the 

case.” Although an Indian tribe may intervene in state court 

dependency proceedings at any time (25 U.S.C. § 1911(c)), R.H.’s 

tribe has yet to intervene here. Accordingly, we deny mother’s 

request and affirm. 

FACTS AND PROCEDURAL HISTORY

R.H. was born in December 2015. In April 2016, mother

was arrested on an outstanding warrant. The Ventura County 

Human Services Agency (HSA) filed a dependency petition as to 

R.H. alleging failure to protect, no provision for support, and 

abuse of a sibling (§ 300, subds. (b), (g), & (j)). The petition 

alleged that mother and R.H.’s father (father)3 both have 

histories of drug use, mental health issues, and domestic 

violence. Two of R.H.’s elder siblings were removed from mother 

and father’s custody in Washington and were under a legal 

guardianship with the consent of the Round Valley Indian Tribes

(the Tribe).4 

 

2 25 U.S.C. § 1901 et seq.; § 361.31, subds. (c) & (h) 

(hereinafter § 361.31(c) & § 361.31(h)); Cal. Rules of Court, rule 

5.484(b). All rule references are to the California Rules of Court.

3 Father is not a party to this appeal.

4 Although the Tribe refers to itself as a single tribe, it is 

actually “a sovereign nation of [six] confederated tribes” on the 

same reservation. 
3

After R.H. was detained and placed in a foster home, 

mother and father indicated he had Native American ancestry 

with the Tribe. HSA notified the Tribe of the April 15, 2016 

detention hearing and a copy of the dependency petition was sent 

to the Tribe and the Bureau of Indian Affairs (BIA). 

At the detention hearing, the court found that ICWA might 

apply to R.H. Prior to the jurisdiction and disposition hearing, 

HSA filed a memorandum stating that father had reported he is a 

member of the Tribe but has no involvement with it and “has 

minimal contact with the paternal family.” HSA sent the ICWA 

030 notice to the Tribe and encouraged father to provide any 

information he might have or obtain about the paternal family. 

In its jurisdiction and disposition report, HSA indicated 

that all of R.H.’s known paternal relatives had been solicited as 

possible placements for R.H. and that none of them were either 

able or willing to provide a permanent placement. Mother 

refused to provide contact information for her parents because 

she did not believe they would be able or willing to provide a 

placement for R.H. She also refused to provide any of her eight 

siblings’ names or contact information.

At the June 2016 jurisdiction and disposition hearing, R.H. 

was declared a dependent and reunification services were ordered 

for mother and father. The following month, HSA received a 

letter from the Tribe stating that R.H. was eligible for 

enrollment. The Tribe did not express any intent to intervene in 

the case at that time. HSA submitted the application and the 

necessary documents for R.H.’s enrollment to the Tribe. At the 

July 6, 2016 ICWA review hearing, the court found that ICWA 

applied. On October 12, 2016, HSA received a letter from the 

Tribe stating that R.H. had been formally enrolled. The letter, 
4

which was signed by Tribe President James A. Russ, made no 

reference to any intent to intervene in the proceedings.

In anticipation of the six-month review hearing, HSA 

submitted a memorandum documenting its ongoing efforts to

communicate with the Tribe. HSA’s ICWA paralegal Lauren 

Lara left the Tribe voicemails on May 11 and 12, 2016. On June 

15, Lara spoke on the telephone with Steve Luna, the Tribe’s 

Director and ICWA representative. On July 7, Lara left a 

voicemail message requesting that an ICWA representative 

testify on behalf of the Tribe. On July 22, Ventura County 

Counsel Linda Stevenson sent the Tribe an email requesting a 

response. On August 22, Lara spoke on the phone with Tribe 

representative Elizabeth Ranger. The following day, Stevenson 

sent Ranger an email requesting a response. Finally, on 

November 16, HSA social worker Tiffany Moody left the Tribe 

two voicemail messages requesting a return call. As of November 

18, 2016, she had received no response. 

HSA also submitted a declaration from ICWA expert 

witness Phillip Powers,5 who opined that HSA had made active 

 

5 Section 224.6, subdivision (b)(1) provides that a juvenile 

court considering whether to terminate the parental rights of a 

parent of an Indian child shall “[r]equire that a qualified expert 

witness testify regarding whether continued custody of the child 

by the parent or Indian custodian is likely to result in serious 

emotional or physical damage to the child.” If the parties so 

stipulate, the court may accept a declaration or affidavit from a 

qualified expert in lieu of live testimony. (§ 224.6, subd. (e).) 

Mother does not dispute that Powers’ declaration was properly 

accepted, or that he met the qualifications for an ICWA expert 

witness as set forth in subdivision (c) of section 224.6.
5

efforts to provide remedial and rehabilitative services to prevent 

the breakup of the Indian family and that those efforts had been 

unsuccessful. He also opined that returning R.H. to either parent 

would cause him severe emotional and physical harm. He was 

unable to determine the Tribe’s position on the matter because he 

had “left several telephone messages for [the Tribe] without a 

return call” and had been “advised that [HSA] had been 

unsuccessful in establishing any meaningful contact with the 

tribe throughout [t]his case.” 

In a December 16, 2016 memorandum, HSA documented 

its continuing efforts to communicate with the Tribe about R.H.’s 

case. On November 29, Moody sent an email to Luna and Tribe 

ICWA representative Jamie Bloom. In that email, Moody 

identified herself as the HSA social worker assigned to R.H.’s 

case and noted that HSA had made numerous attempts to speak 

with a Tribe representative about the matter. Moody requested 

that a Tribe representative appear telephonically at the 

upcoming hearing on December 21 via CourtCall6 and offered to

arrange for the call if needed. 

On November 30, 2016, Moody received an email from 

Ranger requesting additional documentation regarding the case.

The following day, Moody sent Ranger HSA’s most recent status 

review report, the juvenile court’s case plan and findings and 

orders, and Powers’ declaration. On December 7, Moody left 

Ranger a voicemail requesting a return call to discuss the case 

and the Tribe’s recommendation. 

On December 13, 2016, Moody spoke with Luna, who said 

he had not received the documents she sent to Ranger. In 

 

6 CourtCall is a service that facilitates telephonic court 

appearances.
6

addition to those documents, Luna requested additional 

information about R.H.’s foster parents. The following day, 

Moody sent Luna the home inspection report for the foster 

parents and additional information regarding the confidential 

foster home. She also resent the documents she had sent Ranger

along with HSA’s detention and jurisdiction and disposition 

reports. 

On December 15, 2016, Moody called Ranger seeking the 

Tribe’s input regarding HSA’s proposed recommendation that 

parental rights to R.H. be terminated and that the matter be set 

for a section 366.26 hearing to implement a permanent plan of 

adoption by the foster parents. Ranger said she had not yet 

reviewed the documents Moody sent her but would do so and 

reply back the next day. After Ranger failed to reply, Moody left 

a voicemail message requesting a return call.

In a December 21, 2016 memorandum, Moody reported she 

had spoken to Ranger on December 19. Ranger confirmed she 

had read the documents Moody sent her and requested updates 

regarding the parents’ efforts to comply with their case plans. As 

to HSA’s proposed recommendation, “Ranger stated that while 

[R.H.] has been in the current foster home for 8 months, she was 

not comfortable with moving forward with respect to permanency 

with the foster family and stated that the tribe needed to explore 

extended paternal family members and determine if there are 

any paternal relatives that are able to take placement of the 

child.” Ranger also confirmed that she or Luna would 

telephonically appear at the December 21, six-month review 

hearing via CourtCall as arranged by Moody. 

When the matter was called for hearing on December 21, 

R.H.’s attorney stated that no one from the Tribe had called in to 
7

CourtCall and that the operator had left the line open for 

approximately 50 minutes before terminating the call. After all 

of the relevant documents were admitted into evidence, Powers 

offered testimony reiterating the opinions stated in his 

declaration. Mother was present and testified. Father did not 

appear, but his counsel made an offer of proof as to what his

testimony would have been. At the conclusion of the hearing, the 

court found HSA had made active efforts to avoid breaking up the 

Indian family and that returning R.H. to his parents would likely 

cause serious emotional or physical harm. Reunification services 

were terminated and the matter was set for a section 366.26 

hearing. Notice of the hearing was served on the Tribe and the 

BIA by certified mail. 

In its section 366.26 report, HSA recommended that 

parental rights to R.H. be terminated and that he be placed for 

adoption with his foster parents (the prospective adoptive 

parents). HSA reported that R.H. “appears to have a strong 

attachment to the prospective adoptive family and his placement 

in the home has remained stable throughout the dependency.” 

R.H. cried at the window when his prospective adoptive father 

left for work, and the prospective adoptive parents’ three-year-old 

son stated that R.H. was his brother. The prospective adoptive 

parents had also “expressed their commitment to raise [R.H.] 

with an understanding and connection to his tribal ancestry” and 

“have researched information about the Round Valley Indian 

Tribe to educate themselves, so that they may help support [R.H] 

in understanding his culture and heritage lifelong.” 

HSA also documented its numerous ongoing efforts to 

communicate with the Tribe through Luna and Ranger, the latter 

of whom had changed her surname to Redfeather. HSA also 
8

submitted three memorandums providing more detailed accounts 

of those efforts that included attachments of the numerous emails 

and letters that had been sent to the Tribe. HSA reported among 

other things that during a May 5, 2017 telephone call, Luna told 

Moody that Redfeather was preparing for the section 366.26 

hearing and that Moody had sent both Luna and Redfeather the 

confirmation page for the CourtCall hearing scheduled for that 

date. On May 9, Moody also left voicemail messages on the 

Tribe’s main telephone line and Redfeather’s cell phone 

reiterating that the hearing was set for the following day and 

that the CourtCall confirmation page had been sent. 

At the May 10, 2017 hearing, Stevenson noted for the 

record that “the social worker set up CourtCall once again for the 

Round Valley Tribe and they did not call in once again.” 

Stevenson later noted that “[HSA] has set up CourtCall for the 

tribe at least four times in these hearings and [HSA] has paid 

$75 each time to set that up which we don’t get back. But I think 

that the tribe has not called in on any one of those occasions. So 

essentially they have not intervened, but we’re just proceeding 

trying to meet all the requirements.” 

Mother testified at the hearing and also called Moody to 

testify. HSA presented all the documents it previously offered in 

the case, including Powers’ expert declaration. 

In asserting that the court had good cause under section 

361.31(h) to depart from ICWA’s placement preferences as set 

forth in section 361.31(c) and rule 5.482, Stevenson offered that 

HSA “from the get-go, tried to see if there were relatives who 

could take these kids [sic], and they were not available to do that. 

So ICWA does not require us to place [children] with people who 

don’t want to take them. . . . And we cannot place with Indian 
9

families [when] we don’t even have the tribe calling us back, and 

they’re not giving us any families. The child has to be placed 

with somebody. And so the child has been placed with a foster 

family. And I think that these arguments that because we didn’t 

place with relatives or an Indian family, then we’re out of 

compliance with ICWA are absolutely wrong.” 

At the conclusion of the hearing, the court found that R.H. 

was adoptable and that no exception to adoption had been 

established. The court stated that “[w]ith respect to ICWA, the 

court finds beyond a reasonable doubt, including the testimony of 

Mr. Powers, the qualified expert, that continued custody of the 

child by the parents is likely to result in serious emotional or 

physical damage to [R.H.] and that [HSA] made active efforts to 

provide remedial and rehabilitative programs designed to prevent 

the breakup of the Indian family and that these efforts have been 

unsuccessful. With respect to the placement preference under 

ICWA, despite diligent efforts by [HSA] to locate and place with 

[father’s] relatives, no relative has requested placement. The 

Tribe has not identified or sought placement with an Indian 

family nor has the Tribe responded to numerous messages from 

the social worker and Mr. Powers seeking the Tribe’s input. 

Thus, there is good cause to modify the ICWA placement 

preference.” Parental rights were terminated and adoption was 

selected as the permanent plan. 

DISCUSSION

Mother’s Contentions

Mother contends the court erred in finding good cause to 

depart from ICWA’s placement preferences, as set forth in section 

361.31(c). HSA responds that (1) mother’s appeal should be 
10

dismissed under the appellate disentitlement doctrine; (2) her 

contention is forfeited; and (3) the contention fails on the merits.

We decline to apply the appellate disentitlement doctrine, 

which recognizes an appellate court’s inherent authority to stay 

or dismiss appeals by parties who willfully failed to follow the 

trial court’s legal orders. (In re E.M. (2012) 204 Cal.App.4th 467, 

474.) “In dependency cases, the doctrine has been applied only in 

cases of the most egregious conduct by the appellant, which 

frustrates the purpose of dependency law and makes it 

impossible to protect the child or act in the child’s best interests. 

(In re C.C. (2003) 111 Cal.App.4th 76, 84 . . . [refusal to submit to 

a psychological evaluation]; In re Kamelia S. (2000) 82 

Cal.App.4th 1224, 1229 . . . [father absconded with minor]; 

Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299, 

. . . [grandparents—denied placement and guardianship—

absconded with minor]; Adoption of Jacob C. (1994) 25 

Cal.App.4th 617, 623-624 . . . [mother abducted child].)” (In re 

E.M., at p. 474.)

HSA asserts that mother’s appeal should be dismissed 

under the appellate disentitlement doctrine because she 

“refus[ed] to disclose the identity and contact information for her 

eight siblings and contact information for her parents, who might 

have been able to provide [R.H.] with a relative placement.” 

Although HSA notes that the court ordered mother to provide 

this information, her failure to comply was not so egregious that 

it frustrated the purpose of the dependency law or rendered it 

impossible to protect R.H. or act in his best interests. 

We agree, however, that mother’s claim is forfeited. Claims 

that the juvenile court failed to comply with statutory provisions 

that do not relate to the court’s jurisdiction to act under ICWA 
11

may be forfeited on appeal if not raised below. (In re Jennifer A.

(2002) 103 Cal.App.4th 692, 707; Fresno County Dept. of Children 

and Family Services v. Superior Court (2004) 122 Cal.App.4th 

626, 644-646 (Fresno County).) In re Riva M. (1991) 235 

Cal.App.3d 403, 411-412.) Mother contends the juvenile court 

“failed to follow the correct procedure in ruling on the [ICWA] 

placement issues.” Although ICWA’s placement preferences are 

both substantive and procedural, they are not jurisdictional and 

may thus be waived or forfeited. (See, e.g., In re Santos Y. (2001) 

92 Cal.App.4th 1274, 1282 [recognizing that ICWA placement 

preferences are subject to waiver].)

Even if mother had preserved her claim, it would fail. 

“ICWA establishes minimum federal standards, both procedural 

and substantive, governing the removal of Indian children from 

their families. [Citation.] The most important substantive 

requirement imposed on state courts is that of 25 United States 

Code section 1915(a), which, absent ‘good cause’ to the contrary, 

mandates that adoptive placements be made preferentially with 

(1) members of the child’s extended family, (2) other members of 

the same tribe, or (3) other Indian families. [Citation.] . . . In 

this way, ICWA seeks to protect the rights of the Indian child as 

an Indian and the rights of the Indian community and tribe in 

retaining its children in its society. [Citation.]” (Fresno County, 

supra, 122 Cal.App.4th at p. 642.) “[A]ccording to ICWA’s 

legislative history, Congress, by its use of the term ‘good cause,’ 

explicitly intended to provide state courts with flexibility in 

determining the placement of an Indian child. [Citations.]” 

(Ibid.)

“In determining whether good cause exists to depart from 

the ICWA’s placement preferences, the court may take a variety 
12

of considerations into account.” (In re Alexandra P. (2014) 228 

Cal.App.4th 1322, 1352 (Alexandra P.).) The relevant guidelines 

enacted by the BIA concerning good cause exception to ICWA’s 

placement preferences provide that “‘a determination of good 

cause not to follow the order of preference set out [in 25 U.S.C. 

section 1915(a)] shall be based on one or more of the following 

considerations: [¶] (i) The request of the biological parents or 

the child when the child is of sufficient age. [¶] (ii) The 

extraordinary physical or emotional needs of the child as 

established by testimony of a qualified expert witness. [¶] (iii)

The unavailability of suitable families for placement after a 

diligent search has been completed for families meeting the 

preference criteria.’ [Citation.]” (Id. at pp. 1352-1353.) These 

considerations, which are substantially identical to those set 

forth in rule 5.484(b), are not exclusive and courts are thus “free 

to consider other factors. [Citation.]” (Id. at p. 1353.) 

HSA bore the burden of demonstrating good cause to 

depart from ICWA’s placement preferences by clear and 

convincing evidence. (Alexandra P., supra, 228 Cal.App.4th at 

p. 1348; § 361.31, subd. (j).) “Our review of a juvenile court’s 

finding of good cause to modify the placement preference order is 

subject to the substantial evidence test.” (In re N.M. (2009) 174 

Cal.App.4th 328, 335.) Although HSA bore the burden of 

establishing the requisite good cause below, on appeal mother 

bears the burden of proving the court’s ruling was erroneous. 

(Alexandra P., at pp. 353-354.)

Mother asserts there is no evidence (1) “that [HSA] 

explored placements with [mother’s] family” as provided in 

section 361.31(c)(1); or (2) “that [HSA] made ‘reasonable efforts’ 

to locate a conforming placement with another Indian tribe or 
13

Indian family” as set forth in section 361.31(c)(3). The former 

assertion is belied by the record. HSA asked mother to provide 

information regarding her parents and siblings but she refused to 

do so. Because mother willfully obstructed HSA’s efforts to place 

R.H. with a maternal relative, she cannot be heard to complain 

that those efforts were insufficient. 

Mother’s latter assertion is also unavailing. Section 361.31, 

subdivision (g) provides that “[a]ny person or court involved in 

the placement of an Indian child shall use the services of the 

Indian child’s tribe, whenever available through the tribe, in 

seeking to secure placement within the order of placement 

preference” set forth in section 361.31(c). As HSA notes, “[i]t

appeared right up until [the section 366.26] hearing that the 

[T]ribe was still looking into the placement issue.” Under the 

circumstances, HSA had no duty to independently determine 

whether R.H. could be suitably placed with an Indian family from 

another tribe.

Moreover, the Tribe’s inaction supports the court’s finding 

of good cause to depart from ICWA’s placement preferences. 

ICWA does not affect the statutory time limits that apply to 

dependency cases. For children like R.H. who were under the age 

of three when removed from their parents’ custody, reunification 

services cannot exceed six months from the date the child entered 

foster care unless the permanent plan for the child is that he or 

she be returned and safely maintained in the parents’ home no 

later than 18 months after his or her removal. (§ 361.5, subds. 

(a)(1)(B) & (a)(3)(A).) Once reunification services have 

terminated, the focus of the proceedings shifts to providing 

stability and permanence for the child. (In re Marilyn H. (1993) 

5 Cal.4th 295, 309.) 
14

California dependency law also requires that children for 

whom reunification services have been ordered have a concurrent

plan for legal permanence in case reunification services prove 

unsuccessful. (§§ 358.1, subd. (b), 16501.1, subd. (g)(10).) Shortly 

after R.H. was removed, HSA sought input from the Tribe 

regarding its preferences for his permanent placement. 

Reunification services were terminated at a hearing held eight 

months after R.H.’s removal. Although a Tribe representative

was supposed to telephonically appear at that hearing, no one 

actually appeared. After that hearing, the focus of the 

proceedings shifted to finding a permanent and stable home for 

R.H. HSA continued its efforts to seek the Tribe’s input, but 

those efforts failed. The Tribe never appeared in the matter. 

HSA arranged (and paid) for a Tribe representative to appear at 

no less than four hearings, including the section 366.26 hearing. 

Each time the Tribe was supposed to appear, it “stood up” the 

court and the parties.

In light of these circumstances, the court could implicitly 

conclude that the Tribe had no present interest in participating 

in the determination of R.H.’s permanent plan. Moreover, R.H. 

has never had any contact with the Tribe and is bonded to his 

prospective adoptive parents, with whom he has lived since he 

was four months old. This further supports the finding of good 

cause to depart from ICWA’s placement preferences. (Alexandra 

P., supra, 228 Cal.App.4th at pp. 1354-1356.)

Request to Take Additional Evidence

In conjunction with the filing of her opening brief, mother 

filed a request that we take additional evidence on appeal 

pursuant to Code of Civil Procedure section 909. The proffered 

evidence consists of a letter the Tribe sent to mother’s appellate 
15

counsel on August 21, 2017, three days before mother’s opening 

brief was filed. The letter, which is signed by Redfeather, states 

that “the Tribe will be involved in [R.H.’s] case” and that “[t]he 

Tribe is asking to appear by telephone for the court hearings.” 

Redfeather goes on to state that “to place [R.H.] with a non 

Native family is against our Tribal Codes” and that “[i]n the 

event that there is an adoption, we are asking to be able to do a 

Tribal Customary Adoption for [R.H.]” The letter makes no 

mention of HSA’s repeated prior contacts with the Tribe, or the 

fact that the Tribe was served with a copy of the order 

terminating parental rights as to R.H. with a permanent plan of 

adoption by his prospective adoptive parents. 

In making the request, mother’s counsel acknowledges 

“[t]he [T]ribe was notified of the[] proceedings and indicated it 

would intervene. However, it failed to respond to requests to 

recommend a placement for the child at the permanen[cy]

planning hearing held on May 10, 2017.” Counsel adds “I have 

advised the Tribe that it needs to file formal intervention papers 

with this Court and the Ventura County Juvenile Court. I 

anticipate that they will do so but I cannot guarantee it. This 

request is made on the presumption that the Tribe will follow 

through and is designed to protect their rights until they move, in 

a timely manner, to intervene in the appellate proceedings.” 

Counsel goes on to state that “[mother] accepts the reality that, if 

the tribe does not intervene in a timely manner, this request may 

become moot.” In opposing the request, HSA primarily relies on 

the rule that appellate courts should not consider postjudgment 

evidence offered to attack a juvenile court’s judgment. (In re 

Josiah Z. (2005) 36 Cal.4th 664, 676.)
16

To date, the Tribe has neither made a request to intervene 

in the case nor stated its intent to do so. In mother’s reply brief, 

her counsel—apparently abandoning his prior concession that 

mother’s request would become moot if the Tribe did not seek to 

intervene “in a timely manner”—asks us to “issue an order to the 

Tribe directing it to indicate to this Court what its stance in this 

appeal is.” 

We deny the request to consider the Tribe’s letter as 

additional evidence. We also reject counsel’s request that we 

compel the Tribe to state its position. Appellant counsel made 

clear to the Tribe that it needed to formally intervene if it wanted 

to participate in the proceedings. The Tribe could have 

intervened either orally or in writing at any time during the 

proceedings (rule 5.482(d)), yet never did so in either the juvenile 

court or this court. There is no claim that the Tribe failed to 

receive proper notice at any stage of the proceedings.7 Moreover, 

although an Indian tribe may intervene in state court 

dependency proceedings at any time (25 U.S.C. § 1911(c)), the law 

does not grant tribes the right to unnecessarily and willfully 

delay the making of decisions that are essential to providing a 

dependent child the permanence and stability to which he or she 

is entitled under state dependency laws. Under these 

circumstances, we decline to consider mother’s proffered 

additional evidence. 

 

7 At oral argument, mother’s counsel stated he had notified 

the Tribe of the date and time of the hearing and had advised the 

Tribe to call the court and make arrangements to appear 

telephonically. No one from the Tribe ever called or otherwise 

contacted the court.
17

DISPOSITION

The judgment (order terminating parental rights) is 

affirmed.

CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

YEGAN, Acting P. J.

TANGEMAN, J.
Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Christopher Blake, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Leroy Smith, County Counsel, and Linda Stevenson, 

Assistant County Counsel, for Plaintiff and Respondent.