Filed 3/17/ 21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANNET HERNANDEZ

,

Plaintiff and Respondent

,

v.

MARIA JENSEN

,

Defendant and Appellant

. B29 4449 (consolidated with

B296958 )

(Los Angeles County

Super. Ct. No. B C633443 )

APPEAL from a judgment of the Superior Court of Los

Angeles County, Chester Horn, Jr. , Judge. Affirmed

. Michael Maguire & Associates, Paul Kevin Wood and

Kathryn Saldana for D efendant and Appellant.

Law Offices of Frank J. Valdez and Frank J. Valdez ; The

Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and

Respondent.

__________________________2 INTRODUCTION

Maria Jensen and her family hired two healthcare aides to

work in their elderly parents’ home. While one of the aides

bathed Jensen’s mother in a hospital bed in her bedroom, the

second aide reached into the bedroom closet to retrieve an oxygen

tank for Jensen’s father. The removal of the tank caused a

loaded rifle in the closet to fall and discharge, striking the other

aide and injuring her.

A jury found Jensen liable for negligen ce . Jensen appeals,

arguing she did not owe the injured aide a duty of care and she

did not cause the aide’s harm. Jensen also argues the trial court

incorrectly instructed the jury on general negligence and the

verdict form reflected that error

. California law establishes the general duty of each person

to exercise reasonable care for the safety of others. We decline to

recognize an exception to this fundamental principle for

employers and supervisors of healthcare aides working in homes

where firearms are present. I t is foreseeable that an accidental

shooting might occur in a home containing unsecured, loaded

firearms , and policy co nsiderations favor a duty to use reasonable

care when one knows firearms are present. We accordingly hold

that Jensen owed the aide a duty of care. We further hold that

s ubstantial evidence supports the jury’s finding that Jensen’s

negligence was a subst antial factor in causing the aide’s harm,

and we find no error in the jury instructions

. W e affirm

.3 FACTUAL AND PROCEDURAL BACKGROUND

A. Jensen and H

er F amily H ire H ome H ealthcare A ides T

o

C are for T

heir P arents

Maria Jensen is the adult daughter of Josefin a and

Fernando Corona. 1 At the time of the events in this case,

Josefina and Fernando were 87 years old. Josefina was

bedridden

, and Fernando had limited mobility and impaired

hearing. Josefina and Fernando owned a home in the City of

Commerce where the shooting occurred. Jensen lived in Santa

Maria, California and visited her parents at least monthly,

staying for a weekend or sometimes a week at a time.

In 2012, Jensen and her family learned that Josefina had

dementia. Beginning in December 2013, Ger inet, Inc. provided

hospice care for Josefina. Annet Hernandez worked for Gerinet

as a home healthcare aide.

Jensen completed and signed the paperwork hiring Gerinet

to provide home healthcare services for Josefina. Jensen

identified herself as a primar y caregiver for her mother. At the

time Jensen hired Gerinet, Fernando could not care for Josefina

or their home

. When Jensen hired Gerinet, she did not discuss safety with

the Gerinet representative. The intake forms Jensen signed

stated that the hirin g party would “provide a safe home

environment in which care can be given.” During an intake

meeting with a Gerinet representative, Jensen showed the

representative the rooms to which the Gerinet staff would have

1 For clarity, we refer to Josefina and Fernando Corona and

to Jensen’s siblings by their first names.4

access, i.e., the kitchen, her parents’ be droom, the den, and the

shower room.

In March 2014 the family hired a second home healthcare

worker, Tanya Duran, to provide care for Josefina, perform light

housekeeping, and cook for Josefina and Fernando. Jensen told

Duran her duties and that Jensen was “in charge of her parents

and everything that was in the house.” Jensen set Duran’s hours

and supervised Duran and her work.

Because there had been break

- ins at the house , Jensen’s

husband installed surveillance cameras. Jensen used the

cameras to monitor her parents when she was not there. Jensen

also used the cameras to supervise Duran’s work.

B. A R ifle in a B edroom C loset D ischarges

, and H ernandez I

s

S hot

On February 16, 2015 Duran and Hernandez were at work

at Josefina and Fernando’s home. Jen sen was not in Commerce

that day. Fernando told Duran he was short of breath

, and

Duran went to Josefina and Fernando’s bedroom to retrieve an

oxygen tank for him. When Duran entered the bedroom,

Hernandez was bathing Josefina in the bedroom. Duran open ed

a sliding closet door and reached into the closet to retrieve an

oxygen tank. T he removal of the tank caused a loaded rifle in the

closet to fall and discharge.

Duran saw a flash of light and heard a sound “like a

firecracker” or a “pop.” Hernandez told Duran “something hit

me

, ” and they realized Hernandez had been shot. Hernandez fell

to her knees

, and Duran called 911. Hernandez suffered serious

injuries, including a fractured pelvis and a perforated intestine.

The police confiscated the rifle, a BB gun, and a loaded

handgun from Josefina and Fernando’s bedroom. After5

paramedics and police arrived, Duran telephoned Jensen to tell

her what had occurred. Jensen asked Duran: “What the fuck are

you doing in the closet?” Jensen did not ask about Hernandez’s

condition. Jensen testified she was “pissed” and “mad” about the

shooting. The police determined the shooting was accidental.

C. Jensen and H

er S iblings K

new Fernando K

ept Firearms in

the H ouse

Before the shooting, Jensen knew her father had h andguns

and rifles in the house, including a handgun and a BB gun in his

nightstand. Jensen also knew her father had kept handguns and

rifles at a prior residence. Jensen testified that Fernando was “a

little crazy when it came to guns.”

Jensen had not seen the rifle involved in the shooting and

did not know it was in the bedroom closet. Jensen’s husband

knew Fernando had guns in the house because he had unloaded

two of them. Jensen’s sister Irma knew Fernando had guns in

the house, including a handgu n in the bedroom nightstand. Irma

had not seen the rifle involved in the shooting and did not know

how it came to be in the closet. Jensen’s brother John had seen a

rifle in the bedroom closet but did not tell Duran it was there.

John did not tell Jense n or Irma about the rifle either. Fernando

did not have a gun safe in the house.

Following the shooting, Gerinet informed the family that

all guns must be removed from the house before Gerinet

personnel could continue working in the house. Jensen was

present by telephone for that conversation. After the

conversation with Gerinet, and within two weeks after the

shooting, Duran found two more rifles at the other end of the

same bedroom closet.6

D. The J ury F

inds Jensen, John, and Fernando L iable for

N eglig ence

Hernandez sued Jensen, John, and Fernando, as well as

Josefina’s estate, Josefina as trustee of a family trust, and

Jensen’s other two siblings. The jury found Jensen, John, and

Fernando liable for general negligence and awarded total

damages of $3 .6 1 million . The jury apportioned fault 65 percent

to Jensen, 20 percent to John, and 15 percent to Fernando. The

trial court entered judgment on the jury’s verdict on September

12, 2018. The court subsequently reduced the economic damages

award from $610 ,000 to $406,644.77 and left the $3 million non

economic damages award intact. Jensen timely appeal ed.

DISCUSSION

A. Standards of Review

Hernandez alleged causes of action for general negligence

and premises liability. Jensen argues she did not owe Hernan dez

a duty of care and she did not cause Hernandez’s harm.

The elements of a negligence claim and a premises liability

claim are the same: a legal duty of care, breach of that duty, and

proximate cause resulting in injury. ( Kesner v. Superior C

our t

(20 16) 1 Cal.5th 1132, 1158 ( Kesner )

. ) Duty is a question of law

for the court, to be reviewed de novo on appeal. ( Cabral v. Ralphs

Grocery Co. (2011) 51 Cal.4th 764, 770 ( Cabral )

. )

The elements of breach of duty and causation are ordinarily

questions of fact for the jury ’ s determination. ( Vasquez v.

Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278

( Vasquez )

. ) “Where findings of fact are challenged on appeal, we

are bound by the ‘elementary, but often overlooked principle of

law, that

. . . the power of the appellate court begins and ends7

with a determination as to whether there is any substantial

evidence, contradicted or uncontradicted,’ to support the findings

below.” ( Garbell v. Conejo Hardwoods, Inc. (2011) 193

Cal.App.4th 1563, 1569 ( G arbell )

, quoting Crawford v. Southern

Pacific Co. (1935) 3 Cal.2d 427, 429 ; Schmidt v. Superior Court

(2020) 44 Cal.App. 5th 570, 582. ) The substantial evidence

standard of review applies to the jury ’ s findings on causation.

( Cabral

, supra

, 51 Cal.4th at p. 7 70

. )

Jensen also argues the trial court erred by failing to

instruct the jury that ownership, maintenance, or control of the

premises was a prerequisite to finding Jensen liable for general

negligence. The propriety of jury instructions is a questio n of law

that we review de novo. ( Alamo v. Practice M

anagemen t

Info rmation Corp. (2013) 219 Cal.App.4th 466, 475. )

B. Jensen O wed Hernandez a D uty of C are

1. The d uty of c are

Pursuant to Civil Code 2 section 1714

, subdivision (a),

“[e]veryone is responsible, no t only for the result of his or her

willful acts, but also for an injury occasioned to another by his or

her want of ordinary care or skill in the management of his or her

property or person, except so far as the latter has, willfully or by

want of ordinar y care, brought the injury upon himself or

herself. ” ( § 1714, subd. (a). ) “California law establishes the

general duty of each person to exercise, in his or her activities,

reasonable care for the safety of others.” ( Cabral

, supra

, 51

Cal.4th at p. 768. ) “In the absence of a statutory provision

establishing an exception to the general rule of Civil Code section

2 A ll further statutory re ferences are to the Civil Code.8

1714, courts should create one only where ‘clearly supported by

public policy.’” (

Id

. at p. 771

, quoting Rowland v. Christian

(1968) 69 Cal.2d 108, 112 ( Rowland )

. )

“In the Rowland decision, th[e] court identified several

considerations that, when balanced together, may justify a

departure from the fundamental principle embodied in Civil Code

section 1714: ‘the foreseeability of harm to the plain tiff, the

degree of certainty that the plaintiff suffered injury, the closeness

of the connection between the defendant’s conduct and the injury

suffered, the moral blame attached to the defendant’s conduct,

the policy of preventing future harm, the extent of the burden to

the defendant and consequences to the community of imposing a

duty to exercise care with resulting liability for breach, and the

availability, cost, and prevalence of insurance for the risk

involved.’ ” ( Cabral

, supra

, 51 Cal.4th at p. 77 1. )

The Supreme Court has explained that “[t]he Rowland

factors fall into two categories. Three factors

— foreseeability,

certainty, and the connection between the plaintiff and the

defendant

— address the foreseeability of the relevant injury,

while the othe r four

— moral blame, preventing future harm,

burden, and availability of insurance

— take into account public

policy concerns that might support excluding certain kinds of

plaintiffs or injuries from relief.” ( Kesner

, supra

, 1 Cal.5th at p.

1145 .)

2. Foreseeab ility f actors

“The most important factor to consider in determining

whether to create an exception to the general duty to exercise

ordinary care articulated by section 1714 is whether the injury in

question was foreseeable.” ( Kesner

, supra

, 1 Cal.5th at p

. 1145. )

For purposes of duty analysis, “‘foreseeability is not to be9

measured by what is more probable than not, but includes

whatever is likely enough in the setting of modern life that a

reasonably thoughtful [person] would take account of it in

guidin g practical conduct.’

. . . [I]t is settled that what is required

to be foreseeable is the general character of the event or harm

—

e.g., being struck by a car while standing in a phone booth

— not

its precise nature or manner of occurrence.” ( Ibid

. )

I t is f oreseeable that a home healthcare worker might

accidentally be shot in a home containing unsecured , loaded

firearms. Accidental shootings in residences are a sad reality of

modern life . In light of this known risk, a reasonably thoughtful

person employin g a healthcare aide in a home containing guns

would consider the possibility that a gun could be discovered and

accidentally discharged. Jensen described her father as “a little

crazy when it came to guns” and knew her father had handguns

and rifles in th e house, including a handgun in his nightstand.

Jensen’s argument that she did not know the specific rifle

involved in the shooting was in the closet misconstrues the

foreseeability analysis. “[I]t is settled that what is required to be

foreseeable is th e general character of the event or harm . . . not

its precise nature or manner of occurrence.” ( Kesner

, supra

, 1

Cal.5th at p. 1145. ) The general character of the event or harm

here is the likelihood that an unsecured gun in a home could

accidentally di scharge and cause injury. Unfortunately, that

occurrence is more than “ ‘ likely enough in the setting of modern

life that a reasonably thoughtful [person] would take account of it

in guiding practical conduct.’” ( I bi d

. )

Jensen’s argument that she did not owe Hernandez a duty

of care because “the presence of guns in the house would not have

made it foreseeable to [Jensen] that either 1) a gun would be10

found in a closet, or 2) this gun would be kept loaded” overlooks

that “the Rowland factors are evaluated a t a relatively broad

level of factual generality.” ( Cabral

, supra , 51 Cal.4th at p. 772.)

Thus, as to foreseeability, “the court’s task in determining duty

‘is not to decide whether a particular plaintiff’s injury was

reasonably foreseeable in light of a particular defendant’s

conduct, but rather to evaluate more generally whether the

category of negligent conduct at issue is sufficiently likely to

result in the kind of harm experienced that liability may

appropriately be imposed

. . . . ’” ( Ibid

. , origin al italics .) T he first

foreseeability factor weighs against finding an exception to the

duty to exercise reasonable care for the safety of others. 3

“The second Rowland factor, the degree of certainty that

the plaintiff suffered injury, ‘has been noted pr imarily, if not

exclusively, when the only claimed injury is an intangible harm

such as emotional distress.’” ( Kesner

, supra

, 1 Cal.5th at p. 1148

, quoting Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 421. )

Hernandez was shot and suffered serious phy sical injuries. Her

injuries are certain and compensable under the law. ( Kesner , at

p. 1148. ) The second foreseeability factor weighs against finding

an exception to the duty of care.

3 Jensen also contends that “property or person” in

section 1714 precludes a duty of care because Jensen did not

control the “property” where the shooting occurred and her

“person” was not involved in the shooting. Contrar y to this

narrow interpretation, section 1714 “establishes the general duty

of each person to exercise, in his or her activities , reasonable care

for the safety of others.” ( Cabral

, supra , 51 Cal.4th at p. 768

, italics added .)11 The third Rowland factor, “the closeness of the connection

between th e defendant’s conduct and the injury suffered[,]’

[citation] is strongly related to the question of foreseeability

itself.” ( Cabral

, supra

, 51 Cal.4th at p. 779. ) “Generally

speaking, where the injury suffered is connected only distantly

and indirectly t o the defendant’s negligent act, the risk of that

type of injury from the category of negligent conduct at issue is

likely to be deemed unforeseeable. Conversely, a closely

connected type of injury is likely to be deemed foreseeable.”

( Ibid

. )

Hernandez was injured when a loaded rifle fell from a

bedroom closet. That injury could result from the presence of an

unsecured rifle in a residence is clearly foreseeable. The presence

of the loaded rifle in the home, and Jensen’s failure to secure her

father’s guns or advise Duran and Hernandez of their presence,

are closely connected to Hernandez’s gunshot injury. Duran’s

intervening conduct of removing the oxygen tank from the closet

did not create a risk that Hernandez would be shot; the presence

of an unse cured, loaded firearm in the home created th at risk.

The third foreseeability factor weighs against finding an

exception to the duty of care

. 4

4 Jensen argues that an ind ividual owes no general duty to

warn or control the conduct of family members with respect to

guns or weapons. The cases Jensen cites involve claims based on

the failure of family members to prevent shooting s by other

family members, not the failure to se cure weapons or disclose

their presence to those likely to be accidentally injured by them.

( See Smith v. Freund (2011) 192 Cal.App.4th 466, 475 [ affirming

summary judgment for parents, finding that son’s shooting of two

individuals was not foreseeable an d thus parents did not owe

plaintiffs duty of care ] ; Todd v. Dow (1993) 19 Cal.App.4th 253,12 3. Policy f

actors

Having concluded it is reasonably foreseeable that an

unsecured , loaded firearm stored in a ho me could accidentally

discharge and cause injury, we turn to the policy considerations

for and against the imposition of liability. ( Kesner

, supra

, 1

Cal.5th at pp. 1149

- 11 50. ) These policy considerations include

the moral blame attached to the defendant’s conduct, the policy of

preventing future harm, the extent of the burden to the

defendant and consequences to the community of imposing a duty

to exercise care with resulting liability for breach, and the

availability, cost and prevalence of insurance for t he risk

involved. ( Rowland

, supra

, 69 Cal.2d at p. 113. )

The Supreme Court has explained

, “ W e have previously

assigned moral blame, and we have relied in part on that blame

in finding a duty, in instances where the plaintiffs are

particularly powerless or unsophisticated compared to the

defendants or where the defendants exercised greater control

over the risks at issue.” ( Kesner

, supra

, 1 Cal.5th at p. 1151. )

T he moral blame factor weighs against creating an exception for

employers and supervisors of ho me healthcare aides because

those familiar with a home are far better position ed to protect

against the risk of accidental residential shootings than outside

workers are. A healthcare aide employed in a private home

cannot be expected to search the home f or firearms and,

259 [ affirming summary judgment for parents, finding parents

had no duty to supervise or control adult son’s activities ] ; Wise v.

Superior C our t (1990) 222 Cal.App. 3d 1008, 1014 [ holding wife

had no duty to prevent husband from committing unforeseeable

sniper attack ]

. )13

moreover

, determine whether the y are loaded. The moral blame

factor does not support creating an exception to the duty of care.

“The overall policy of preventing future harm is ordinarily

served, in tort law, by imposing the costs of ne gligent conduct

upon those responsible. The policy question is whether that

consideration is outweighed, for a category of negligent conduct,

by laws or mores indicating approval of the conduct or by the

undesirable consequences of allowing potential liab ility.”

( Cabral

, supra

, 51 Cal.4th at pp. 781

- 7 82. ) In evaluating the

burden that a tort duty would impose on the defendant and the

community, the court’s “duty analysis is forward

- looking, and the

most relevant burden is the cost to the defendants of up holding,

not violating, the duty of ordinary care.” ( Kesner

, supra

, 1

Cal.5th at p. 1152. )

Jensen argues that imposing an “unlimited duty to

caregivers” on adult children assisting elderly parents will

discourage individuals from hiring home healthcare wo rkers and,

in turn, preclude elderly people from remaining in their homes.

The duty here, however, is not as wide

- ranging as Jensen

describes. It is a duty to exercise reasonable care for the safety of

others when one knows firearms are present. Public policy

supports the safe storage and handling of guns, particularly in

circumstances where one party has superior knowledge and the

ability to prevent accidental shootings. These factors weigh

against creating a duty exception.

The final policy factor is the availability of insurance for

the risks involved. Jensen concedes she has insurance coverage

for at least some of her liability. The insurance factor weighs

against creating an exception to the duty of care.14

C. Substantial E vidence S upports the J ury’s F inding t hat

J ensen’s N

egligence W

as a S ubstantial F

actor in C ausing

Hernandez’s H

arm

Jensen next argues she did not cause Hernandez’s harm.

Jensen characterizes this argument as a question of law to be

decided by the court. On this factual record, howeve r, the

decision whether Jensen’s negligence caused Hernandez’s harm

wa s a question of fact for the jury.

Breach of duty is usually a fact issue for the jury.

( Constance B. v. State of Cal ifornia (1986) 178 Cal.App.3d 200,

207; see also Vasquez

, supra

, 118 Cal.App.4th at p. 278 [ “the

elements of breach of

. . . duty and causation are ordinarily

questions of fact for the jury ’ s determination” ]

. ) “[G]iven a

breach of duty by the defendant, the decision whether that

breach caused the damage (that is, causatio n in fact) is again

within the jury ’ s domain

. . . .” ( Constance B.

, at p. 207

, original

italics. ) Only “where reasonable [people] will not dispute the

absence of causality, [may] the court

. . . take the decision from

the jury and treat the question as one of law.” ( I bi d

. )

Jensen argues her conduct and Hernandez’s harm are

insufficiently close because “one simply could not foresee” that a

loaded rifle would be kept in a closet near an oxygen tank and

that Duran’s removal of the tank would cause the rif le to fall and

discharge. In one sense, this argument restates Jensen’s

unpersuasive foreseeability argument addressed above. In

another sense, this argument is a contention that substantial

evidence did not support the jury’s conclusion that Jensen’s

ne gligence was a substantial factor in causing Hernandez’s harm.

That contention is also unpersuasive.

Jensen knew her father had handguns and rifles in the

house, including a handgun in the bedroom nightstand. Jensen15

oversaw Duran’s and Hernandez’s work a nd knew they had

access to substantial areas of the house, including her parents’

bedroom. Despite Jensen’s knowledge that her father kept

firearms in the house and that Duran’s and Hernandez’s job

duties required them to work throughout much of the resid ence,

Jensen neither secured the firearms nor warned Duran and

Hernandez of their presence. The jury could reasonably conclude

from this evidence that Jensen’s conduct contributed to

Hernandez’s harm. ( See Bockrath v. Aldrich Chem ical

. Co.

(1999) 21 Cal. 4th 71, 79 [ “The substantial factor standard is a

relatively broad one, requiring only that the contribution of the

individual cause be more than negligible or theoretical

. ” ] ; Osborn

v. Irwin Mem orial Blood Bank (1992) 5 Cal.App.4th 234, 25 3

[ “ [c] ausation in fact is ultimately a matter of probability and

common sense” ]

. ) Substantial evidence supports the jury’s

finding that Jensen’s negligence was a substantial factor in

causing Hernandez’s harm

. 5

5 Jensen also contends the trial court erred in denying her

summary judgment motion

, in which she argued the same issues

she challenges from the tria l, i.e., that she did not owe

Hernandez a duty of care and that she did not cause Hernandez’s

harm. “ As a general rule, the denial of summary judgment is

harmless error after a full trial covering the same issues. ”

( Legendary Investors Group No. 1 LLC v. Niemann (2014) 22

Cal.App. 4th 1407, 1410; see also Transport Ins. Co. v. TIG Ins.

Co. (2012) 202 Cal.App. 4th 984, 1011 [“ general rule [is] that

denial of [summary judgment] motions may not be challenged [on

appeal] because the parties litigated the same i ssues at trial ”].)

Moreover, as discussed, Jensen owed Hernandez a duty of care

, and substantial evidence supports the jury’s finding that Jensen’s

negligence caused Hernandez’s harm.16

D. The T

rial C ourt D id N

ot E rr in I

nstructing the J

ury

, and

th e V erdict F orm W as P roper

Jensen last argues the trial court erred by failing to

instruct the jury that ownership, maintenance, or control of the

premises was a prerequisite to finding Jensen liable for general

negligence

. Jensen also argues the verdict f orm reflecting th e

general negligence instruction was erroneous.

The trial court instructed the jury on the elements of

Hernandez’s general negligence claim with CACI No. 400. CACI

No. 400 states that to find a defendant liable for general

negligence, t he jury must find the plaintiff proved all of the

following: (1) the defendant was negligent; (2) the plaintiff was

harmed; and (3) the defendant’s negligence was a substantial

factor in causing the plaintiff’s harm. Jensen argues that

because Hernandez’ s injury occurred in Jensen’s parents’ home,

to prove general negligence Hernandez also must prove Jensen

owned, maintained, or controlled the house.

Jensen’s argument conflates general negligence and

premises liability theories

. Ownership, maintenance, or control

of the home is not required to find Jensen liable for general

negligence. Jensen’s liability arises from the jury’s finding that

Jensen failed to use reasonable care and that her negligence was

a substantial factor in causing Hernandez’s harm. Premises

liability, by contrast, “‘is grounded in the possession of the

premises and the attendant right to control and manage the

premises’”; accordingly, “ ‘ mere possession with its attendant right

to control conditions on the premises is a sufficient b asis for the

imposition of an affirmative duty to act.’” ( Kesner

, supra

, 1

Cal.5th at p. 1158. ) Jensen’s negligence is not “grounded in the

possession” of and right to control her parents’ home. Jensen’s17

negligence derives from her failure to protect or warn against a

known danger with a foreseeable risk of harm. The trial court

did not err in instructing the jury on the elements of Hernandez’s

general negligence claim

, and the verdict form containing those

elements was proper.

DISPOSITION

The judgment is affirmed. Hernandez shall recover her

costs on appeal.

MCCORMICK

, J. *

We concur:

PERLUSS , P. J.

SEGAL , J.

* Judge of the Orange County Superior Court, assigned by

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

California Constitution.