1 Filed 2/8/22 ; certified for publication 3/ 4 /22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Sacramento)

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KATHRYN L. ROGERS, et al., Plaintiffs and Respondents,

v. ROSEVILLE SH, LLC , et al., Defendants and Appellants. C089561 (Super. Ct. No. 34

- 2018

- 00244899

- CU

- PO

- GDS)

Claude Rogers, a former resident of a residential care facility for the elderly known as Meadow Oaks of Roseville, died after experiencing heatstroke. His wife and

successor
- in

- interest Kathryn and sons Jeffrey, Phillip and Richard sued Meadow Oaks of Roseville, Roseville SH, LLC, CPR/AR Ro seville SH Owner, LLC, DCP Investors Roseville SH, LLC, DCP Management Roseville SH, LLC, Westmont Living, Inc.,2 Tanysha Borromeo, Ana Rojas , and Andrew Badoud for elder abuse, fraud , and wrongful death. Because members of the Rogers family share the same last name, we refer to them by their first name s for clarity. Roseville SH, LLC d/b/a Meadow Oaks of Roseville, DCP Investors Roseville SH, LLC, DCP Management Roseville SH, LLC, Westmont Living, Inc., Tanysha Borromeo and Ana Rojas (hereafter defendants) appeal from an order denying their petition to compel plaintif fs to arbitrat e their claims pursuant to an arbitration agreement
that w as part of the Residency Agreement Richard signed as Claude’s representative

. Although defendants filed a notice of appeal, the appellate briefs were filed on behalf of Roseville SH, LLC only. Roseville SH, LLC contends that in denying the petition to compel arbitration (1) the trial court err oneously believ ed defendants had to show that Claude lacked mental capacity to consent before they could prove that Richard had the authority to sign the arbitration agreement for Claude; (2) the trial court erred in concluding that Richard did not act as Claude’s actual or ostensible agent when he signed the arbitration agreement on Claude’s behalf; and (3) the trial court’s order violate d the
Fe deral Arbitration Act (9 U.S.C. § 1 et seq.). We conclude (1) Roseville SH, LLC mis construes the trial court ’s analysis , (2) the trial court did not err in denying the petition to compel arbitration , and (3) the trial court’s
order did not violate the Fede ral Arbitration Act

. We will affirm the trial court’s order.
BACKGROUND The complaint alleged the following: Claude was born on January 15, 1935

. He
was admitted to Meadow Oaks of Roseville (Meadow Oaks) , a residential care facility for the elderly, o n December 30, 2017. Claude suffered multiple falls while at Meadow Oaks because he did not receive adequate interventions to prevent falls and was not adequately supervised. Meadow Oaks staff w ere also neglectful in other areas of Claude’s care, includi ng hygiene and monitoring his physical, mental and psychosocial wellbeing. On multiple occasions, family members found Claude unattended outside, in3 his wheelchair. Claude could not push himself in his wheelchair and could not open the facility door to exit or enter the facility by himself. Family members repeatedly
instructed Meadow Oaks staff not to leave Claude outside unattended. But o n June 30, 2018, Claude was left outside for hours. He suffered severe heatstroke and died on July 14, 2018. Defendants owned, managed, controlled, maintained and/or operated
Meadow Oaks. Defendants filed a petition to compel plaintiffs to arbitrate all of their c auses of
action

. Defendants submitted the declaration of defense counsel Mark Ginella in support of the petition. Ginella presented a document he averred wa s a copy of the R esidency
A greement Richard signed on March 9, 2018. P laintiffs forfeited any obj ection to the
document submitted with Ginella’s declaration by not objecting to it in the trial court

. ( Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162,
173 .) Ginella said, at the hearing on defendants’ petition, that the 2018 Residency Agreement was the operative agreement. Accordingly, we limit our discussion to that agreement. The Residency Agreement was between Westmont Living, Inc., a corporation doing business as Meadow Oaks, Claude and Richard

. The a greement ide ntified Claude
as the resident and Ric hard as the resident’s representative. Richard signed the agreement as “representative.” The signature line for resident was left blank. Above the signature block wa s the following sentence: “Having read and underst ood this Residency Agreement and each of the attachments/appendixes (the ‘ Attachments ’ ) and the obligations created by such documents, each Representative (1) acknowledges that he or she is legally authorized to be Resident’s Representative; and (2) signs this Residency Agreement to undertake to guarantee the obligations of the Resident, including the payment of all fees that the Resident may owe the Community under this Residency Agreement.”4 Appendix N to the Residency A greement wa s titled “Arbit ration Agreement.” Richard signed the appendices to the Residency Agreement as “representative.” Tanysha Borromeo countersigned as executive director. The A rbitration A greement states, “BOTH PARTIES TO THIS RESIDENCY AGREEMENT UNDERSTAND THAT
AGREEING T O ARBITRATION IS NOT A CONDITION OF ADMISSION TO THE COMMUNITY. By signing the line at the end of this Section, however, you agree, on behalf of your spouse, heirs, representatives, executors, administrators, successors, assigns, managers, and agents, as applicable, that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at the Community, whether made against MEADOW OAKS OF ROSEVlLLE or any other individual or entity, including without limitatio n, personal injury or wrongful death claims, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act; except that any claim or dispute involving unlawful detainer proceedings (eviction) or any claims t hat are brought in small claims court shall not be subject to arbitration unless all parties involved agree to arbitrate such proceedings. If someone other than the resident signs this arbitration clause, he/she understands and agrees that he/she is agree ing to arbitrate on behalf of the resident and on behalf of him/herself as an individual. You give up your constitutional right to have any such dispute decided in a court of law or equity before a judge or jury, and instead accept the
use of arbitration. You further waive your right to participate in a representative capacity, or to participate as a member of a class, in any litigation or arbitration proceeding with respect to any such dispute.” The A rbitration A greement provided that Claude may withdra w his agreement to arbitrate within 30 days after signing the agreement by providing written notice of the withdrawal to the facility. Plaintiffs opposed the petition to compel arbitration

. They argued th at (1) the arbitration agreement wa s invalid becau se Richard did not consent to contract ing by electronic means; (2) there was no binding arbitration agreement because Claude did not5 agree to arbitrate and there was no evidence that Richard had any authority to sign the arbitration agreement on behalf of his father, mother and/or brothers ; (3) there wa s no evidence that Claude was incapacitated such that Richard had the authority to act under the advanced health care directive; 1 (4) the arbitration agreement did not apply to
Richard’s individual claims be cause he did not sign the agreement in his personal capacity ; (5) the trial court should deny the petition because plaintiffs a lleged individual claims for damages and “splitting” the action in two fora would raise an unacceptable risk
of inconsistent ruli ngs on issues of fact and law; and (6) the arbitration agreement wa s unconscionable. Richard submitted a declaration in support of the opposition. He averred the following: Claude was his father. Richard was present when Claude was admitted to
Meadow O aks. Claude suffered mild cognitive impairments but did not have dementia
and could read , write , understand and sign documents at the time of his admission

. Claude did not ask Richard to s ign anything for him and never told Richard that Richard
had the authority to sign any medical documents for Claude or to waive Claude’s right to a jury trial. On the day Claude was admitted to Meadow Oaks, the a dministrator of the facility took Richard into her office and said she had documents she needed Richard to

s ign for the admission. Richard did not know why the administrator asked him to sign
the documents when he lived in San Diego and Cla u de was able to sign for his admission. The administrator did not ask Richard whether he had a power of attorney or say th at Richard had to sign because he had authority under some power of attorney or that Claude had directed the administrator to allow Richard to sign admissions documents . In fact, Claude had not directed Richard to sign the documents. Richard only signed
because the administrator said he had to sign the documents in order to admit Claude to

1 There is no evidence of an advanced health care directive in the record.6 the facility. Richard signed the admission s documents in December 2017, on the lines
where the administrator indicated. He did not represent to the administrator that he had
the authority to sign the documents. H e would have directed the administrator to have Claude sign the documents if the administrator had said that Claude should sign the documents if he was able. Richard did not see anyone at Meadow Oaks try to d iscuss the
admission s documents with Claude, read or explain them to him , or ask him to sign them. The administrator did not ask Richard whether Claude could do those things. Richard did not write on any document that he had a durable power of attorney. In fact, when the
administrator asked Richard, he said he was Claude’s son and that was what Richard wrote on the documents he signed. About two and a half months later, Richard received

an e
- mail from Meadow Oaks asking him to sign a document attached t o the e

- mail. No one from the facility talked to Richard about the document. Richard thought the facility asked him to sign the document because he signed the 2017 admission s documents. Claude did not tell Richard that he wanted Richard to sign any docu ment or that Richard
had the authority to sign medical documents or an arbitration agreement for Claude

. Richard did not represent to anyone that he had the authority to sign the 2018 documents
for Claude. Defendants filed a reply. Plaintiffs filed writ ten objections to the reply and
Ginella’s declaration in support of the reply. Defendants filed a supplemental reply with
a declaration fr om Borromeo after the trial court issued its tentative ruling

. The trial
court did not consider the late

- filed supplemental reply papers. Roseville SH, LLC’s appellate opening brief does not challenge the trial court’s decision to not consider the
late

- filed papers , and we do not consider those papers

. The trial cou rt denied defendants’ petition. It agreed there was no binding agreement to arbitrate. It concluded, among other things, that defendants failed to
demonstrate that Richard had the authority to sign the arbitration agreement on Claude’s7 behalf. The trial court further found that there was no arbitration agreement b i nd ing
Richard ’s mother, brothers and Richard , individually.
STANDARD OF REVIEW Code of Civil Procedure sections 1281.2 and 1290.2 create a summary procedure for resolving petitions to compel arbitration upon submitted evidence . ( Engalla v. Permanente Medical Group, In c. (1997) 15 Cal.4th 951, 972.) When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy , the trial court must determine whether an agreement to arbitrate exists and, if any defense to its enforcement is raised, whether the agreement is enforceable. (Rosenthal v. Great Western Fin ancial Securities Corp oration (1996) 14 Cal.4th 394, 413.) Th e petitioner bears the burden of proving the existence of

a valid arbitration agreement by a preponderance of the evidence. ( Ibid. ; Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586 ( Flores ). ) The trial court sits as a trier of facts, weighing all of the evidence submitted to reach a final determination. ( Engalla, at p. 972.) Although agency is generally a factual question, where the facts are undisputed (as Roseville SH, LLC concedes is true here) , we independently review the case to
determine whether agency and a valid arbitration agreement exists. ( Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1086 ( Valentine ) ; Flores, supra , 148 Cal.App.4th at p. 586 ; van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 562 .)
DISCUSSION
I Roseville SH, LLC contend s the trial court err oneously believ ed defendants had to show that Claude lacked mental capacity to consent before they could prove Richard had
the authority to sign th e arbitration agreement for Claude.8 The trial court’s order does not reflect the analysis Roseville SH, LLC attributes to
the trial court . Citing Goldman v. Sunbridge Healthcare, LL C (2013) 220 Cal.App.4th 1160 ( Goldman ), the trial court said defendants had to show either that the person to be bound by the arbitration agreement lacked the mental capacity to consent or that the person who signed the agreement had the authority to act as an agent. The trial court ’s
order did not indicate that proof of Claude’s lack of mental capacity to consent was a prerequisite to showing that Richard had the authority to sign the arbitration agreement
for Claude. To the extent Roseville SH, LLC asserts further related contentions , we do
not consider them because they are based on its incorrect reading of the trial court’s
order.
II Roseville SH, LLC also argues the trial court erred in concluding that Richard did not act as Claude’s actual or ostensible agent when he signed the arbitr ation agreement on Claude’s behalf

. Roseville SH, LLC makes a number of assertions in its appellate opening brief without any citation to the record. It states that neither Claude nor Richard disclosed to Meadow Oaks, at the time of the execution of the a dmissions documents, that Richard did not have the authority to sign the admissions documents on Claude’s behalf and Claude never told Meadow Oaks that he did not authorize Richard to sign the admissions
documents for him. Claude allowed Richard and Meado w Oaks staff to believe that Richard possessed the authority to sign the admissions documents on Claude’s behalf. Claude likely knew that Richard signed the admissions papers on his behalf and neither Claude nor Richard ever attempted to rescind the agree ment to arbitrate. Factual
assertions made without cit ation to the portion of the record supporting the m are forfeited . ( Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 ( Miller ) ; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 ( Duarte ) .)9 The right to compel arbitrat ion depends on the existence of an agreement to arbitrate. ( Young v. Horizon West, Inc . (2013) 220 Cal.App.4th 1122, 1128 ( Young ) .)
W hether a valid agreement to arbitrate exists is determined under applicable contract law

. ( Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263 ( Garrison ).) “Generally, a person who is not a party to an arbitration agreement is not bound by it. [C itation.] However, there are exceptions. For example,

. . . a person who is authorized to act as the [resident or] patient ’ s agent can bind the [resident or] patient to an arbitration agreement. [Citations.]” ( Flores, supra , 148 Cal.App.4th at p. 587 , italics omitted ; see also Monschke v. Timber Ridge Assisted Living, LLC (2016) 244 Cal.App.4th 583, 586

- 587 ( Monschke ) .) “ ‘An agent is one who represents another, called the principal, in dealings with third persons.’ [Citation.] In California, an age ncy is ‘either actual or ostensible.’ ” ( Valentine , supra , 37 Cal.App.5th at p. 1086.) Actual agency arises when the principal’s
conduct causes the agent reasonably to believe that the principal consents to the agent’s act on behalf of the principal. ( T omerlin v. Canadian Indem nity Co. (1964) 61 Cal.2d 638, 643 ( Tomerlin ) ; see , e.g., Hogan v. Country Villa Health Services (2007)
148 Cal.App.4th 259, 262 [health care power of attorney authorized daughter to sign arbitration agreements for mother, as part admissions packet for a long

- term health care facility ] ; Garrison , supra , 132 Cal.App.4th at pp. 258 , 265

- 267 [mother’s claims must b e arbitrated where daughter was authorized under a health care power of attorney to enter into arbitration agreements on behalf of mother]. ) Ostensible agency arises when the principal ’s conduct causes the third party reasonably to believe that the agent has the authority to act on the principal’s behalf . ( Tomerlin, supra , 61 Cal.2d at p. 643

. ) “[A]n agency [, whether actual or ostensible,] cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the ag ency.” ( Flores, supra , 148 Cal.App.4th at p p. 587

- 588, italics omitted ; see Hartong v. Partake,
Inc . (1968) 266 Cal.App.2d 942, 960 [stating that liability for the acts of an ostensible10 agent rests on the doctrine of estoppel, which requires representations by the principal] .)

“ ‘ “ ‘The principal must in some manner indicate that the agent is to act for [the principal] , and the agent must act or agree to act on [the principal’s] behalf and subject to [the principal’ s ] control.’ .

. . ” [Cit ations.] Thus, the “formation of an agency relationship is a bilateral matter. Words or conduct by both principal and agent are necessary to create the relationship

. . . .” ’ ” ( Flores, at p. 588 , italics omitted ; see Howell v. Courtesy Chevrolet, Inc

. (1971) 16 Cal.App.3d 391, 401 ( Howell ) [stating that ostensible agency requires the principal to intentionally communicate the agency relationship to the third party or to negligently cause the third party to believe that there is an agency relationship] .) The burden of proving that a purported agent had the authority to act for the purported principal in a particular circumstance lies with the persons dealing with the agent. ( Flores, at p. 588; Howell, at p. 401.) The party seeking to compel arbitratio n does not meet its burden of prov ing the existence of an arbitration agreement whe n it does not present any evidence that the purported principal’s conduct caused the agent or the third party to believe that the agent
had the authority to bind the princip al . ( Lopez v. Bartlett Care Center, LLC (2019)
39 Cal.App.5th 311, 313, 319; Valentine, supra , 37 Cal.App.5th at pp. 1086

- 108 8 ; Hutcheson v. Eskaton FountainWood Lodge (2017) 17 Cal.App.5th 937, 958; Young
, supra , 220 Cal.App.4th at pp. 1132

- 1134; Goldman , supra , 220 Cal.App.4th at p. 1173 ; Flores, supra , 148 Cal.App.4th at p. 585, 588 ; Pagarigan v. Libby Care Center, Inc

. (2002) 99 Cal.App.4th 298, 301

- 303 .) Here, Richard signed the arbitration agreement as Clau de’s r epresentative

. The Residency Agreement and arbitration agreement do not define “representative.” We
cannot conclude from the face of either document that Richard act ed under an express

agency. The signature block s for the Residency Agreement and arbitration agreement did

not identif y Richard as Claude’s agent, and the agreements do not state that Richard act ed under a power of attorney. ( Goliger v. AMS Properties, Inc . (2004) 123 Cal.App.4th 374,11 376

- 377 ( Goliger ) [holding that mother’s claims need not be arbitrated where daughter signed the admissions packet, including arbitration agreements, as “responsible party” and not as agent for mother and there was no evidence that mother allowed daughter

to sign the arbit ration agreements on her behalf]; see Flores, supra , 148 Cal.App.4th at pp. 590

- 594 [distinguishing between “legal representative,” “responsible party” and “next of kin” and concluding that while a next of kin could sign a contract to admit a mentally
inco mpetent patient to a nursing home even if he or she was not an agent, he or she could not sign an arbitration agreement on the patient’s behalf].) Rather, Richard averred that Claude did not direct him to sign the 2018 admissions documents , including the arbitration agreement, and Claude never told Richard that Richard had the authority to sign any medical document or arbitration agreement for Claude. Defendants produced no
evidence that Richard was expressly authorized to act as Claude ’s agent

. Roseville SH, LLC base s its claim of agency on Richard’s apparent belief that he
had the authority to sign the admissions papers on his father’s behalf and on Claude’s
asserted failure to disavow Richard of that belief. But Richard’s conduct alone cannot create an agency ( Flores, supra , 148 Cal.App.4th at p p. 587

- 588 ) and t here is no
evidence that any conduct on Claude ’s part justified a belief by defendants that Richard
had the authori ty to sign the arbitration agreement on Claude’s behalf. Roseville SH, LLC challenge s the plaintiffs’ denial of an agency relationship between Claude and Richard, urging that Claude had sufficient opportunity to object

to Richard ’s signing the admission s papers but did not o bject

. We need not consider Roseville SH, LLC ’s fac tual claims because they are not supported by citation to the
record . ( Miller , supra , 101 Cal.App.4th at p. 743; Duarte , supra , 72 Cal.App.4th at
p. 856 .) In any event, t he appellate court in Valentine rejected a similar argument by the owners and operators of a skilled nursing facility attempting to enforce the arbitration agreement a husband signed for his wife upon her admission to the facility

. ( Valentine,12 supra , 37 Cal.App.5th at p. 1088

- 1090 ; see also Warfield v. Summerville Senior Living,
Inc . (2007) 158 Cal.App.4th 443, 448

- 449 .)
Here t here is no evidence a Meadow Oaks representative spoke with Claude about
the arbitration agreement Richard signed

. Richard averred that he received the 2018 admissions documents by e

- mail and did not talk with anyone from the facility about the
documents. There wa s no evidence that Claude approved similar acts by Richard in the past or that Claude remained silent even though he knew that Richard had signed the arbitration agreement on his behalf. ( See Chicago Title Ins. Co. v. AMZ Ins. Services,
Inc. (2010) 188 Cal.App.4th 401, 426 [stating that ostensible authority may be established by proof that the principal approved prior similar acts of the agent or that the principal knew that the agent held himself/herself out as clothed with certain authority and the principal remained silent].) Roseville SH, LLC also argue s that the arbitration agreement gave Claude a right to rescind the agreement within 30 days of signing but Claude did not rescind the agreement, further evidencing an agency relationship between Claude and Richard. Even assuming there is support in the record for the claim that Claude did not rescind the

a rbitration agreement, Valentine rejected a similar claim.
The defendants in Valentine argued that the wife ratified the arbitration agreements signed by the husband b ecause she did not rescind the agreements within the
30

- day rescission period provided in the agreements. ( Valentine, supra , 37 Cal.App.5th at p. 1090.) The appellate court said, “ ‘The fundamental test of ratification by conduct is whether the releasor, with full knowledge of the material fact s entitling him to rescind, has engaged in some unequivocal conduct giving rise to a reasonable inference that he intended the conduct to amount to a ratification.’ ” ( Ibid. , italics omitted. ) But there was
no evidence that the wife knew the arbitration agreements existed, that the husband signed them or that the wife had a right to rescind them. ( Ibid. ) As in Valentine , there
was no evidence in this case that Claude knew Richard had signed the arbitration13 agreemen t on his behalf and that he had 30 days from the date of signing to rescind the agreement

. Claude’s failure to rescind means nothing without evidence that he knew about the arbitration agreement. ( Valentine, supra , 37 Cal.App.5th at p. 1090.) “ ‘A third person .

. . is not compelled to deal with an agent, but if he [or she] does so, he [or she] must take the risk. He [or she] takes the risk not only of ascertaining whether the person with whom he [of she] is dealing is the agent, but also of ascertaining the scope of [that person’s] powers. ’ ” ( Young, supra , 220 Cal.App.4th at p. 1134; see
also Howell, supra , 16 Cal.App.3d at p. 401.) In the absence of evidence that Richard had actual or ostensible authority to bind Claude to the arbitration agreement, t he trial

court did not err in denying defendants’ petition to compel arbitration. Because Claude was not bound by the arbitration agre ement, the arbitration agreement does not bind his “spouse, heirs, representatives, executors, administrators, successors, assigns, managers, and agents.” The individual claims of Claude’s wife and sons are also not subject to the arbitration agreement be cause Richard did not sign the arbitration agreement in his personal capacity and there wa s no evidence that he had the authority to sign the arbitration agreement on behalf of his mother and/or brothers . ( Monschke , supra , 244 Cal.App.4th at p p

. 585, 587 ; Goldman , supra , 220 Cal.App.4th at pp. 1176

- 1178 ; Goliger, supra , 123 Cal.App.4th at pp. 377

- 378. ) Richard averred he had no authority to sign the arbitration agreement on behalf of his mother and/or brother s. In light of our conclusion, we need not addr ess plaintiffs’ additional contention about why the arbitration agreement was not enforceable.
III Roseville SH, LLC also contend s that the trial court’s ruling that Richard did not
have the authority to sign the arbitration agreement but had the authority to sign the other
2018 admissions documents sing l ed out the arbitration agreement for special treatment, in
violation of the Federal Arbitration Act (9 U.S.C. § 1 et seq.)

.14 The issue before the trial court on defendants’ petition to compel arbitration was whether a valid agreement to arbitrate existed and whether the plaintiffs’ causes of action
must be arbitrated

. The trial court was not asked to and did not decide whether the other
admiss ions documents Richard signed were valid or enforceable. Considering whether
Richard had the authority to act as Claude’s agent in signing the arbitration agreement was determined by reference to generally applicable principles of contract and agency law. ( See Garrison , supra , 132 Cal.App.4th at p. 263 .) The trial court did not single out the arbitration agreement for special treatment based on the characteristics of arbitration.
DISPOSITION The order denying defendants’ petition to compel arbitration is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)
& (2).)

/S/ MAURO, J.

We concur:

/S/ ROBIE, Acting P. J.

/S/ KRAUSE, J.1 Filed 3/4/22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Sacramento)

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KATHRYN L. ROGERS et al., Plaintiffs and Respondents,

v. ROSEVILLE SH, LLC , et al.,

Defendants and Appellants. C089561 (Super. Ct. No. 34

- 2018

- 00244899

- CU

- PO

- GDS)

ORDER GRANTING REQUEST TO PUBLISH

APPEAL from a judgment of the Superior Court of Sacramento County, David I. Brown, Judge. Affirmed.

Wilson Getty , William C. Wilson , Mark A. Ginella , Williams Iagmin and Jon R. Williams for Defendants and Appellants

. Law Firm of Sean R. Laird and Sean R. Laird for Plaintiffs and Respondents

.2 THE COURT: The opinion in the above

- entitled matter filed on February 8, 2022 , was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.

FOR THE COUR T:

/S/ ROBIE, Acting P. J.

/S/ MAURO, J.

/S/ KRAUSE, J.