Filed 10/30/20 BLT Communications, LLC v. LaMarche CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

BLT COMMUNICATIONS, LLC,

Plaintiff and Appellant,

v.

JULIANNE LAMARCHE, et al.,

Defendants and Respondents.

 B302527

 (Los Angeles County

 Super. Ct. No. 19GDCV00245)

APPEAL from an order of the Superior Court of Los 

Angeles County, Ralph C. Hofer, Judge. Affirmed as modified.

Alpert, Barr & Grant, Adam D.H. Grant, Alexander S. 

Kasendorf, Ryan T. Koczara; Law Offices of Jeffrey A. Slott and

Jeffrey A. Slott for Plaintiff and Appellant.

Law Offices of Collin Seals and Collin Seals for Defendants

and Respondents.

_______________________
2

Plaintiff BLT Communications, LLC (BLT) appeals the 

trial court’s grant of the special motion to strike under section 

425.16 of the Code of Civil Procedure (anti-SLAPP) filed by 

defendants Julianne LaMarche and Richard Sankey. We have 

jurisdiction under Code of Civil Procedure1 sections 425.16, 

subdivision (i), and 904.1. We affirm as modified.

BACKGROUND

In its first amended complaint (FAC), BLT alleges that it 

“is the largest entertainment marketing and media company in 

the world.” LaMarche and Sankey were employed by BLT from 

2012 until April 5, 2018, when BLT states that it terminated 

them for cause.2 BLT alleges various categories of wrongdoing by 

LaMarche and Sankey, most of which do not concern us on this 

appeal. In the “Common Allegations” section of the FAC, BLT 

alleges: “From in or about January 2017 through April 5, 2018,

[LaMarche and Sankey] absconded with dozens of documents

belonging to BLT including financial records, BLT’s confidential

books and records relating to its business operations, client lists, 

employee information and other information relating to the

operation of the business of BLT, including the operation of the

department in BLT known as BLT+. Such documents are the 

sole and exclusive property of BLT and [LaMarche and Sankey]

had no authorization, consent, or right to remove them from 

1 Unless otherwise specified, all statutory references herein 

are to the Code of Civil Procedure.

2 LaMarche and Sankey filed wrongful termination claims 

against BLT concerning their discharge in a separate action. 

Their action was deemed related and then consolidated with the 

BLT action for all purposes.
3

BLT’s premises. The removal of such documents from the 

premises of BLT without returning them after April 5, 2018, is a 

breach of Exhibit ‘1’ attached hereto.” Exhibit 1, in turn, is 

composed of two “Employee Confidentiality, Non-Disclosure and 

Computer Software Security Agreement” forms bearing the 

respective signatures of LaMarche and Sankey.

In the alleged fourth cause of action of the FAC, BLT 

incorporates the above paragraph 24, then alleges in paragraph 

45: “From on or about January 1, 2016 through April 5, 2018,

[LaMarche and Sankey], and each of them, breached the 

aforesaid written agreements attached hereto Exhibit ‘1’ in the 

following particulars: [¶] a. By filing a [c]omplaint in the 

Superior Court of the State of California for the County of Los 

Angeles as Case Number 19STCV08061 on or about March 7, 

2019. Included in the [c]omplaint filed in the aforesaid legal 

proceeding, [LaMarche and Sankey], and each of them, made 

specific reference to and disclosed to the general public certain 

[c]onfidential [i]nformation and [t]rade [s]ecrets specifically 

referred to in Exhibit ‘1’ and which said [d]efendants were 

obligated thereby to keep confidential. The [c]omplaint filed in 

the aforesaid legal proceeding was not filed under seal and

therefore all of the [c]onfidential [i]nformation and aforesaid 

[t]rade [s]ecrets have been publicly disclosed and disseminated in 

breach of Exhibit ‘1’ including but not limited to BLT’s internal

procedures and policies, financial documents, legal claims,

marketing and development plans and related information; and

[¶] b. [LaMarche and Sankey], and each of them, have failed and

refused to turn over, deliver and relinquish to BLT all originals, 

duplicates and copies of all tangible [c]onfidential [i]nformation 

under the control of said [d]efendants who absconded with same 
4

prior to termination of their employment on April 5, 2018; and [¶] 

c. [LaMarche and Sankey], and each of them, have failed to hold

in confidence and keep confidential, without publication,

disclosure or dissemination [of] the aforesaid confidential

information belonging to BLT; and [¶] d. [LaMarche and Sankey], 

and each of them, removed the aforesaid confidential information 

from the premises of BLT without the express written 

authorization and consent of an officer of BLT outside the 

ordinary and authorized course of the business of BLT.” BLT 

also alleged a fifth cause of action for “Breach of the Implied 

Covenant of Good Faith and Fair Dealing.”

On July 26, 2019, LaMarche and Sankey filed a special 

motion to strike under section 425.16 addressed to the fourth and 

fifth alleged causes of action in BLT’s FAC. BLT opposed the 

motion on August 19, 2019. LaMarche and Sankey filed a reply 

brief on August 23, 2019.

The motion was heard on August 30, 2019. The trial court 

granted the motion as to the alleged fourth cause of action in the 

FAC, but denied it as to the alleged fifth cause of action. The

trial court struck the entire alleged fourth cause of action, and

awarded $8,737.50 in fees to LaMarche and Sankey as prevailing

moving parties, against a request for $14,275 in fees. This appeal 

followed.3

3 LaMarche and Sankey have not cross-appealed the trial 

court’s denial of their motion as to the alleged fifth cause of 

action. Accordingly, the remainder of this opinion will address 

only the alleged fourth cause of action for breach of contract.
5

DISCUSSION

BLT’s principal contention on appeal is that the trial 

court’s order striking the entire alleged fourth cause of action was 

overbroad, because even granting that the claim based on the

filing of a lawsuit by LaMarche and Sankey implicated protected 

activity, the remainder of BLT’s claims in this cause of action did 

not involve protected activity under the anti-SLAPP statute. 

Accordingly, the trial court should have been more selective in 

determining what should be stricken.

A. Applicable Law

The requirements for anti-SLAPP motions under section 

425.16 are familiar. Section 425.16 provides, inter alia, that “[a] 

cause of action against a person arising 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 shall be subject to 

a special motion to strike, unless the court determines that the 

plaintiff has established that there is a probability that the 

plaintiff will prevail on the claim.” (Id., subd. (b)(1).) An “act . . . 

in furtherance of [a] person’s right of petition or free speech . . . in 

connection with a public issue” is defined in section 425.16 to 

include, in relevant part: “any . . . 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.” (Id., subd. (e)(4).)

The Legislature enacted section 425.16 to prevent and 

deter “lawsuits brought primarily to chill the valid exercise of the 

constitutional rights of freedom of speech and petition for the 

redress of grievances.” (§ 425.16, subd. (a).) Thus, the purpose of 

the anti-SLAPP law is “not [to] insulate defendants from any
6

liability for claims arising from the protected rights of petition or 

speech. It only provides a procedure for weeding out, at an early 

stage, meritless claims arising from protected activity.” (Baral v. 

Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)

When a party moves to strike a cause of action under the 

anti-SLAPP law, a trial court evaluates the special motion to 

strike using a two-prong test: (1) has the moving party “made a 

threshold showing that the challenged cause of action arises from 

protected activity” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 

1056) and, if so, (2) has the non-moving party demonstrated that 

the challenged cause of action has “ ‘minimal merit’ ” by making 

“a prima facie factual showing sufficient to sustain” a judgment 

in its favor. (Baral, supra, 1 Cal.5th at p. 385; Navellier v. 

Sletten (2002) 29 Cal.4th 82, 93-94; see § 425.16, subd. (b)(1).) 

After the first prong is satisfied by the moving party, the burden 

shifts to the non-moving party “to demonstrate that each 

challenged claim based on protected activity is legally sufficient 

and factually substantiated.” (Baral, supra, at p. 396.)

B. Standard of Review

We review a trial court’s ruling on a special motion to 

strike pursuant to section 425.16 under the de novo standard. 

(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; Park 

v. Board of Trustees of California State University (2017) 2 

Cal.5th 1057, 1067.) “In other words, we employ the same twopronged procedure as the trial court in determining whether the 

anti-SLAPP motion was properly granted.” (Mendoza v. ADP 

Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 

1652.)

As does the trial court, we “consider the pleadings, and 

supporting and opposing affidavits stating the facts upon which 
7

the liability or defense is based.” (§ 425.16, subd. (b)(2).) In 

considering the pleadings and declarations, we do not make 

credibility determinations or compare the weight of the evidence; 

instead, we accept the opposing party’s evidence as true and 

evaluate the moving party’s evidence only to determine if it has 

defeated the opposing party’s evidence as a matter of law. 

(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 

269, fn. 3.)

C. Prong 1: Arising from Protected Activity

LaMarche and Sankey’s initial burden is to show that the 

alleged fourth cause of action in BLT’s complaint arises from 

protected activity on their part. (Park v. Board of Trustees of 

California State University, supra, 2 Cal.5th at p. 1061.) In this 

case the showing of protected activity is self-evident, as BLT 

alleges in paragraph 45 of the FAC that LaMarche and Sankey 

“breached the aforesaid written agreements attached hereto 

Exhibit ‘1’ in the following particulars: [¶] a. By filing a 

[c]omplaint in the Superior Court of the State of California for 

the County of Los Angeles as Case Number 19STCV08061 on or 

about March 7, 2019. . . .” A number of other allegations in this 

paragraph and in incorporated paragraph 24 allege breach of 

contract involving non-protected activity. However, we agree 

with the trial court that LaMarche and Sankey satisfied the first 

prong of analysis under section 425.16, because the filing and 

prosecution of a civil action is recognized as a protected act under 

section 425.16. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)

D. Prong 2: Probability of Prevailing on the Merits

Satisfying the first prong shifts to the opposing party (BLT)

the burden of demonstrating merit in its alleged cause(s) of 
8

action under the second prong. (Baral, supra, 1 Cal.5th at 

p. 396.)

The second prong of the anti-SLAPP analysis requires BLT

to show a probability of prevailing on its alleged fourth cause of 

action. The court ruling on such a motion does not weigh 

evidence or resolve conflicting factual claims. Its inquiry is 

limited to whether BLT has stated a legally sufficient claim and 

made a prima facie factual showing sufficient to sustain a 

favorable judgment if the submitted evidence is credited. The 

court accepts BLT’s evidence as true and evaluates LaMarche 

and Sankey’s showing only to determine if it defeats BLT’s claim 

as a matter of law. (Baral, supra, 1 Cal.5th at pp. 384-385; 

Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) 

“[A]t the second stage of an anti-SLAPP hearing, the court may 

consider affidavits, declarations, and their equivalents if it is 

reasonably possible the proffered evidence set out in those 

statements will be admissible at trial.” (Sweetwater Union High 

School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949.) 

Such a showing “must be based on admissible evidence.” 

(Fashion 21 v. Coalition for Humane Immigrant Rights of Los 

Angeles (2004) 117 Cal.App.4th 1138, 1147.) “[C]laims with the 

requisite minimal merit may proceed.” (Navellier v. Sletten, 

supra, 29 Cal.4th at p. 94.)

In this case, the showing made by BLT under the second 

prong consisted only of a declaration from BLT counsel4 and 

4 As the trial court noted, “[t]he declaration of counsel here 

with respect to matters such as contract formation and plaintiff’s

performance are not matters of which counsel would have

personal knowledge, and none is established; in fact, counsel cites 

to the FAC.”
9

references to the allegations of the unverified FAC, neither of 

which constitute admissible evidence. We agree with the trial 

court that this represented at best a “weak showing” that “fails to

establish by admissible evidence any probability of prevailing on 

the cause of action.” We further agree with the trial court’s 

conclusion that “the motion to strike should be granted.” 

However, as discussed next, we part company with the trial court 

as to the manner in which the motion to strike should be granted.

E. Disposition Where Cause of Action Involves Both 

Protected and Unprotected Activity

Since the enactment of section 425.16, courts have 

struggled with vexing questions arising when a special motion to 

strike is addressed to a cause of action that contains allegations 

of both protected and nonprotected activity. A sound guiding 

principle is that “a plaintiff cannot frustrate the purposes of the 

SLAPP statute through a pleading tactic of combining allegations 

of protected and nonprotected activity under the label of one 

‘cause of action.’ ” (Fox Searchlight Pictures, Inc. v. Paladino

(2001) 89 Cal.App.4th 294, 308, fn. omitted.) But that leaves 

unresolved the question of how a cause of action that is based on 

allegations of both protected and nonprotected conduct, thereby 

presumptively satisfying prong one, should be treated in the 

following steps of anti-SLAPP analysis.

In the present case, we have allegations of breach of 

contract based on nonprotected activity, namely, the alleged 

misappropriation of confidential information belonging to BLT in 

violation of the written agreements attached as Exhibit 1 to the 

complaint. We also have allegations that the defendants 

breached their contracts by revealing confidential information in

a lawsuit they filed, the filing of which constitutes protected 
10

activity under prong one of the anti-SLAPP statute. The 

question is, what becomes of the cause of action that contains 

both elements?

We believe that this question was answered 

authoritatively, at least for a situation as clear-cut as the one 

before us in this appeal, by the California Supreme Court’s

decision in Baral. The Baral court summarized the issue as 

follows: “California’s anti-SLAPP statute provides that ‘[a] cause 

of action against a person arising from any act of that person in 

furtherance of the person’s right of petition or free speech . . . 

shall be subject to a special motion to strike, unless the court 

determines . . . there is a probability that the plaintiff will prevail 

on the claim.’ (Code Civ. Proc., § 425.16, subd. (b)(1).) This case 

raises a question that has perplexed the Courts of Appeal: How 

does the special motion to strike operate against a so-called 

‘mixed cause of action’ that combines allegations of activity 

protected by the statute with allegations of unprotected activity?

[¶] The difficulty arises from the statute’s use of the term ‘cause 

of action,’ which has various meanings. It may refer to distinct 

claims for relief as pleaded in a complaint. These are usually set 

out as ‘first cause of action,’ ‘second cause of action,’ and so forth. 

But the term may also refer generally to a legal claim possessed 

by an injured person, without reference to any pleading. A 

person may have a cause of action for defamation or breach of 

contract even if no suit has been filed. . . .

“Typically, a pleaded cause of action states a legal ground 

for recovery supported by specific allegations of conduct by the 

defendant on which the plaintiff relies to establish a right to 

relief. If the supporting allegations include conduct furthering 

the defendant’s exercise of the constitutional rights of free speech 
11

or petition, the pleaded cause of action ‘aris[es] from’ protected 

activity, at least in part, and is subject to the special motion to 

strike authorized by section 425.16[, subdivision ](b)(1). Some 

courts, including the Court of Appeal in this case, have held that 

the motion lies only to strike an entire count as pleaded in the 

complaint. However, this rule leads to anomalous results when 

the count is supported by allegations of unprotected activity as 

well as protected activity. [¶] Viewing the term in its statutory 

context, we conclude that the Legislature used ‘cause of action’ in 

a particular way in section 425.16[, subdivision ](b)(1), targeting 

only claims that are based on the conduct protected by the 

statute. Section 425.16 is not concerned with how a complaint is 

framed, or how the primary right theory might define a cause of 

action. While an anti-SLAPP motion may challenge any claim for 

relief founded on allegations of protected activity, it does not 

reach claims based on unprotected activity.

“It follows that ‘mixed cause of action,’ the term frequently 

used to designate a count alleging both protected and unprotected 

activity, is not strictly accurate. Section 425.16[, subdivision 

](b)(1) applies only to ‘causes of action’ that arise from allegations 

of protected speech or petitioning. However, ‘mixed cause of 

action’ is a term in common usage, and we sometimes employ it 

for its customary purpose. We also sometimes use ‘cause of 

action’ in its ordinary sense, to mean a count as pleaded. To 

avoid confusion, we refer to the proper subject of a special motion 

to strike as a ‘claim,’ a term that also appears in section 425.16[, 

subdivision ](b)(1). [¶] The Court of Appeal . . . held that an antiSLAPP motion must be brought against a mixed cause of action 

in its entirety. It affirmed the denial of defendant’s motion 

because plaintiff established a probability of succeeding on claims 
12

based on allegations of activity not protected by section 425.16. 

This application of the anti-SLAPP statute unduly limits the 

relief contemplated by the Legislature.” (Baral, supra, 1 Cal.5th 

at pp. 381-382, fns. omitted.)

In Baral, the court was faced with the flip side of the 

situation in the present case. The plaintiff in Baral had alleged 

various claims against the defendant, some of which were 

deemed to be protected conduct under prong one of the antiSLAPP statute. The plaintiff responded with a showing of merit 

under prong two that demonstrated a sufficient probability of 

success with respect to the nonprotected conduct. This court held 

that this showing of merit compelled the denial of the antiSLAPP motion, because at least some part of the challenged 

causes of action had sufficient merit.

The California Supreme Court rejected this result. After 

an extensive review of the Court of Appeal cases that had 

wrestled with anti-SLAPP motions in the “mixed” (protected and 

nonprotected) context, the court concluded: “The anti-SLAPP 

procedures are designed to shield a defendant’s constitutionally 

protected conduct from the undue burden of frivolous litigation. 

It follows, then, that courts may rule on plaintiffs’ specific claims 

of protected activity, rather than reward artful pleading by 

ignoring such claims if they are mixed with assertions of 

unprotected activity.” (Baral, supra, 1 Cal.5th at p. 393.)

The Baral court quoted with approval the following 

observations from Cho v. Chang (2013) 219 Cal.App.4th 521, 527: 

“ ‘It would make little sense if the anti-SLAPP law could be 

defeated by a pleading, such as the one in this case, in which 

several claims are combined into a single cause of action, [with 

some claims] alleging protected activity and some not. Striking 
13

the entire cause of action would plainly be inconsistent with the 

purposes of the statute. Striking the claims that invoke protected 

activity but allowing those alleging nonprotected activity to 

remain would defeat none of them. Doing so also is consonant 

with the historic effect of a motion to strike: “to reach certain 

kinds of defects in a pleading that are not subject to demurrer.”

(See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1008, 

p. 420.)’ ” (Baral, supra, 1 Cal.5th at p. 388.)

The Baral court declared: “[I]t is not the general rule that 

a plaintiff may defeat an anti-SLAPP motion by establishing a 

probability of prevailing on any part of a pleaded cause of action. 

Rather, the plaintiff must make the requisite showing as to each 

challenged claim that is based on allegations of protected activity. 

How the plaintiff does that will vary from case to case, depending 

on the nature of the complaint and the thrust of the motion. But 

when the defendant seeks to strike particular claims supported 

by allegations of protected activity that appear alongside other 

claims within a single cause of action, the motion cannot be 

defeated by showing a likelihood of success on the claims arising 

from unprotected activity.” (Baral, supra, 1 Cal.5th at p. 392.)

Most significantly for our purposes in this appeal, the 

Baral court held that “the Legislature’s choice of the term ‘motion 

to strike’ reflects the understanding that an anti-SLAPP motion, 

like a conventional motion to strike, may be used to attack parts 

of a count as pleaded.” (Baral, supra, 1 Cal.5th at p. 393, italics 

added.) Accordingly, as the court summarized its holdings, “If 

the court determines that relief is sought based on allegations 

arising from activity protected by the statute, the second step is 

reached. There, the burden shifts to the plaintiff to demonstrate 

that each challenged claim based on protected activity is legally 
14

sufficient and factually substantiated. The court, without 

resolving evidentiary conflicts, must determine whether the 

plaintiff’s showing, if accepted by the trier of fact, would be 

sufficient to sustain a favorable judgment. If not, the claim is 

stricken. Allegations of protected activity supporting the stricken 

claim are eliminated from the complaint, unless they also support 

a distinct claim on which the plaintiff has shown a probability of 

prevailing.” (Baral, supra, at p. 396, italics added.)

We conclude from Baral that the trial court in this instance 

cut too broad a swath through BLT’s complaint by striking the 

entire fourth cause of action. The allegations of protected activity 

in paragraph 45, subparagraph (a), were discrete and easily 

identified as such. The remainder of the alleged fourth cause of 

action did not depend on the presence of these allegations. 

Accordingly, BLT was not required, at this early stage, to 

demonstrate merit in its claims involving nonprotected activity. 

Baral counsels that the trial court, in granting the anti-SLAPP 

motion, should have stricken the allegations of protected activity, 

but allowed the remaining allegations, involving nonprotected 

activity to stand.5 Thus we affirm the granting of the anti5 We distinguish the situation in the instant case from the 

situations present in such cases as Optional Capital, Inc. v. Akin 

Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95 and 

Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 

574, where the distinction between protected and nonprotected 

allegations was far less clear-cut than here and, accordingly, we 

analyzed the “gravamen” or “principal thrust” of each cause of 

action to determine whether the cause of action should be 

stricken. In Okorie, we were faced with the moving parties’ 

failure to identify any particular allegation describing protected 

conduct; instead, we had to analyze a general request to strike 
15

SLAPP motion but will direct that a modified order striking only 

the allegations of protected activity should be entered.

F. Attorneys’ Fees

Section 425.16, subdivision (c)(1), provides in pertinent part 

that “a prevailing defendant on a special motion to strike shall be 

entitled to recover his or her attorney’s fees and costs.” Here, the 

trial court awarded to LaMarche and Sankey fees and costs of 

$8,737.50, an amount less than the $14,275 requested. BLT 

asserts that we should direct the trial court to reevaluate this

the entire complaint based on “ ‘the gravamen of the complaint.’ ” 

(Okorie, supra, at p. 589.) It is this context in which we observed, 

“Baral did not say that a special motion to strike must always be 

limited to challenges within a pleaded count.” (Ibid., italics 

added.) Such an approach would present difficult challenges, we 

further observed, “where the plaintiff’s protected and unprotected 

claims . . . are not well delineated and are even enmeshed one 

within another.” (Ibid.) In Optional Capital, the moving 

defendants were law firms and all of the alleged conduct was 

covered by the litigation privilege. (Optional Capital, supra, at 

pp. 144-115.)

Here, unlike in Okorie and Optional Capital, the 

allegations of protected activity are well delineated. LaMarche 

and Sankey based their motion on one subparagraph in 

paragraph 45, which allegation can readily be distinguished from 

other allegations in the FAC. In this circumstance, the approach 

endorsed by Baral, which reaches specific allegations of protected 

activity without sweeping in allegations of unprotected activity, 

is more faithful to the stated purpose of the anti-SLAPP statute 

to deter litigation brought “primarily to chill the valid exercise of 

the constitutional rights of freedom of speech and petition.” 

(§ 425.16, subd. (a).)
16

award of attorneys’ fees and costs to the extent that any part of 

the alleged fourth cause of action is restored on appeal.

We review an order on a request for attorney fees under

section 425.16 for abuse of discretion. (Gerbosi v. Gaims, Weil, 

West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.) “A ruling 

amounts to an abuse of discretion when it exceeds the bounds of 

reason, and the burden is on the party complaining to establish 

that discretion was abused.” (Ibid.)

In this case, LaMarche and Sankey remain the prevailing 

parties on the special motion to strike, and we see no ground to 

disturb the trial court’s award of fees and costs.

DISPOSITION

The order of August 30, 2019, granting the special motion 

to strike, is modified to strike from the first amended complaint 

the allegations appearing on page 26, lines 11 to 26, referring to 

the filing of a civil complaint by LaMarche and Sankey, but 

otherwise leaving the remaining allegations of the alleged fourth 

cause of action intact. As so modified, the order is affirmed. The 

parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED

SINANIAN, J.*

We concur:

ROTHSCHILD, P. J. CHANEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.