Filed 9/26/16 Alcala v. Santa Fe Rubber Products CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ELIAS ALCALA et al.,

Plaintiffs and Respondents,

v.

SANTA FE RUBBER PRODUCTS, INC.,

Defendant and Appellant.

 B265749

 (Los Angeles County

 Super. Ct. No. BC459688)

SANTA FE RUBBER PRODUCTS, INC.,

Cross-complainant and Appellant,

v.

ELIAS ALCALA et al.,

Cross-defendants and Respondents.
2

APPEAL from a judgment and order of the Superior Court of Los Angeles 

County. Ralph Dau, Michael Linfield and Joseph R. Kalin, Judges. Reversed and 

remanded with directions in part, affirmed in part.

Remer, DiVincenzo & Griffith, Joseph P. DiVincenzo for Defendant, Crosscomplainant and Appellant.

Rothner, Segall & Greenstone, Glenn Rothner, Jonathan Cohen, Eli NadurisWeissman for Plaintiffs, Cross-defendants and Respondents.

Gilbert & Sackman, Joshua F. Young, Benjamin M. O’Donnell for Crossdefendants and Respondents.

___________________________________________________
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Plaintiffs and respondents, employees of defendant and appellant Santa Fe Rubber 

Products, Inc. (SFR), established that SFR committed Labor Code violations by 

implementing a statutorily deficient, 20-minute meal period. We find that the trial court 

correctly determined liability and assessed damages on plaintiffs’ cause of action for 

Labor Code violations. 

We determine that the trial court erred, however, by preventing SFR from 

presenting evidence relevant to equitable considerations potentially impacting plaintiffs’ 

right to restitution on a related cause of action for unfair business practices. We therefore 

remand the action to the trial court with directions to conduct a bench trial regarding 

equitable considerations relevant to plaintiffs’ claim for restitution.

BACKGROUND

Elias Alcala, Margarita Benavides, and Celio Jimenez, three employees of SFR, 

filed a putative class action complaint alleging two causes of action: (1) that SFR 

violated Labor Code sections 226.7 and 512, subd. (a),1 as well as Industrial Welfare 

Commission (IWC) wage order 1-2001 (Cal. Code Regs., tit. 8, § 11010) by failing to 

provide employees with 30-minute meal periods (the Labor Code claim), and (2) that the 

failure to provide lawful meal periods constituted an unfair business practice under 

Business and Professions Code section 17200, et seq. (the UCL claim). A class of all 

persons employed at SFR between April 2007 and July 2010 was eventually certified.

Evidence presented on motion for summary adjudication

Plaintiffs moved for summary adjudication of both the Labor Code and the UCL 

claims. SFR opposed the motion. Evidence presented in connection with the motion for 

summary adjudication included the following: 

Production employees at SFR are represented by the United Steel Workers’ Union 

(the union). In 1997, all production workers began receiving a 20-minute paid meal 

 

1 Unless otherwise noted, all further statutory references are to the Labor Code.
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break, resulting in a workday that lasted eight gross hours. Employees were paid for 

eight hours of work. 

In March 2006, the union and employee representatives undertook collective 

bargaining negotiations with SFR. In the negotiations, SFR expressed a preference that 

employees receive a 30-minute unpaid meal break. SFR wished to implement an eight 

and a half-hour shift, eight hours of which would be paid, so that SFR could “overlap” 

shifts and increase production. The union and the employee representatives reacted 

negatively to SFR’s offer of a 30-minute unpaid meal break because they did not want to 

extend shifts by an additional 30 minutes. They claimed that the employees would go on 

strike unless the meal period schedule remained the same, with the 20-minute paid meal 

break in the middle of the shift, and a gross eight-hour workday. When SFR expressed 

concerns about the legality of the 20-minute meal period, union representatives stated 

that the union and SFR could legally agree on anything they wanted with respect to meal 

break provisions, as long as it was contained in the collective bargaining agreement. SFR 

acquiesced to the demand, and the collective bargaining agreement provided for “a 

20 minute paid lunch near the middle of the shift.” 

Thus, during the period relevant to this lawsuit, from April 2007 until July 2010, 

all SFR employees took a 20-minute paid meal break near the middle of their shifts and 

had an eight-hour workday, including meal and rest breaks. On each shift, all employees 

took their meal break at the same time of day. Employees knew when to take their meal 

breaks based on an automated bell system used by SFR that sounded to signify the 

beginning and end of the 20-minute meal period. During the meal period, operations shut 

down completely and no employee performed any work. While this schedule was in 

effect, SFR received no complaints regarding the 20-minute meal period.

In July 2010, SFR and the union engaged in negotiations regarding a new 

collective bargaining agreement. According to SFR, the union threatened that, unless 

SFR agreed to certain concessions, the union would have a lawsuit filed asserting that 

SFR violated meal break laws by enforcing a 20-minute meal period. SFR did not agree 
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to the requested concessions, and it immediately implemented a 30-minute unpaid lunch 

break based upon the advice of counsel. 

Employees were thereafter required to clock in and out for the 30-minute meal 

period, and the bell schedule changed to reflect the new meal period. This action was 

subsequently filed in April 2011. 

The trial court’s ruling

The trial court granted the motion for summary adjudication as to both the Labor 

Code claim and the UCL claim, concluding the employees were entitled to a 30-minute 

meal break but only a 20-minute period was provided. The court found that, regardless 

of the circumstances surrounding the negotiation of the collective bargaining agreement, 

the right to a 30-minute meal period was not subject to waiver by agreement. The court 

further determined that, by proving the elements of their claims, plaintiffs were entitled to 

summary adjudication, but further proceedings, including possible trial, on the actual 

amount of damages (under the Labor Code claim) or remedies (under the UCL claim) 

could be necessary.

Motion in limine

Prior to the scheduled trial, plaintiffs filed a motion in limine seeking to prevent 

SFR from presenting evidence regarding its affirmative defenses. Plaintiffs argued that, 

to the extent SFR’s defenses concerned liability, those defenses had already been 

overruled by the trial court’s prior ruling. 

The trial court granted the motion in limine, finding that the employees were 

entitled to one hour of pay for every meal period of less than 30 minutes, and that this 

calculation could be resolved by an accounting. 

Trial and judgment

The court held a one-day bench trial to determine the amount of damages and/or 

restitution due the class. Plaintiffs called an economist as an expert witness, who gave an 

opinion on the sum total owing to plaintiffs. His accounting was based on payroll 

records, from which he estimated the number of days plaintiffs worked for more than five 
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hours but did not receive a 30-minute meal break. SFR was given the opportunity to 

present a differing accounting but did not do so.

Following trial, the court issued judgment in favor of plaintiffs for a total of 

$156,917 in damages and/or restitution (not including prejudgment interest). The court 

explained that $98,426 of this amount was compensable as both damages, under the 

Labor Code claim, and restitution, under the UCL claim. However, because the UCL 

claim had a statute of limitations of four years, as opposed to the Labor Code claim’s 

three years (see Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 

178-179 (Cortez)), the remaining $58,491 represented an amount owed only as 

restitution, not damages. 

SFR appealed from the judgment. 

DISCUSSION

I. The Labor Code claim

A. SFR did not comply with its meal period obligations

Section 512, subdivision (a) provides, in relevant part: “An employer may not 

employ an employee for a work period of more than five hours per day without providing 

the employee with a meal period of not less than 30 minutes, except that if the total work 

period per day of the employee is no more than six hours, the meal period may be waived 

by mutual consent of both the employer and employee.” Subdivision 11(A) of IWC 

wage order 1-2001 (Cal. Code Regs., tit. 8, § 11010), which applies to workers (like 

plaintiffs) in the manufacturing industry, imposes identical meal period requirements. In 

turn, both section 226.7, subdivision (c), and subdivision 11(D) of wage order 1-2001 

require an employer that fails to provide the mandated meal period to pay employees one 

additional hour of pay at employees’ regular rate of compensation for each workday that 

the meal period is not provided. This additional hour of pay is referred to as a “premium” 

wage. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114 

(Murphy).)

The Supreme Court has explained an employer’s general duty in supplying the 30-

minute meal period: “An employer’s duty with respect to meal breaks under both section 
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512, subdivision (a) and [the applicable wage order] is an obligation to provide a meal 

period to its employees. The employer satisfies this obligation if it relieves its employees 

of all duty, relinquishes control over their activities and permits them a reasonable 

opportunity to take an uninterrupted 30-minute break, and does not impede or discourage 

them from doing so.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 

1004, 1040.) An employer is only obligated to provide bona fide relief from work duties 

during this 30-minute period, not to police meal breaks to ensure no work is performed. 

(Id. at pp. 1040-1041.) In most circumstances, including those applicable here, the meal 

period must take place within the first five hours of an employee’s workday. (Id. at p. 

1041.)

The evidence presented on summary adjudication in this matter established that 

SFR employees received only a 20-minute mid-shift meal break during the relevant time 

period. Nevertheless, SFR argues that it complied with its obligation, as outlined in 

Brinker, to supply an adequate meal period. SFR contends that, by seeking to implement 

a 30-minute unpaid meal period during collective bargaining negotiations, it effectively 

“provided” a compliant meal period, even though it actually implemented a 20-minute 

paid break. We disagree.

SFR focuses on Brinker’s admonition that “employees cannot manipulate the 

flexibility granted them by employers to use their breaks as they see fit to generate” 

premium wage liability. (Brinker, supra, 53 Cal.4th at p. 1040.) Brinker also noted that 

what would “suffice” for an employer in providing meal breaks “may vary from industry 

to industry,” and that the court could not “delineate the full range of approaches in each 

instance might be sufficient to satisfy the law.” (Ibid.) Under these standards, courts 

have an obligation to look at the totality of circumstances in deciding whether an 

employer must pay premium wages to employees who work during mandated meal 

periods. If the employer truly allows an uninterrupted 30-minute meal break, it will not 

be liable for premium wages even if an employee chooses to work during the break, 

while premium wages are warranted if the employer pressures employees “to perform 

their duties in ways that omit breaks.” (Ibid.) In discussing an employer’s obligations, 
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however, nowhere does Brinker suggest that a 20-minute meal period policy may satisfy 

the Labor Code and wage order requirements of a 30-minute meal period. 

Meal period requirements, as expressed in the Labor Code and the IWC’s wage 

orders, “have long been viewed as part of the remedial worker protection framework.” 

(Murphy, supra, 40 Cal.4th 1094, 1105; Brinker, supra, 53 Cal.4th 1004, 1027.) 

Accordingly, these provisions “must be interpreted in the manner that best effectuates 

that protective intent.” (Brinker, at p. 1027.) Allowing an employer to satisfy its 

obligations to “provide” the required meal period simply by stating in collective 

bargaining negotiations that it wished to do so, before eventually agreeing to and 

implementing a noncompliant period, would not promote this protective intent. Instead, 

an employer must be held to its duty to allow employees to enjoy uninterrupted 30-

minute meal periods, except in situations where the Labor Code and wage orders provide 

that the parties may depart from this requirement.

In fact, the Labor Code and the applicable wage order do allow for flexibility in 

certain situations. For example, if the nature of an employee’s work prevents the 

employee from stopping all work during a mandated meal period, the employee and the 

employer may, by revocable written agreement, implement an “‘on duty’” meal period. 

(Wage order 1-2001, subd. 11(C).) SFR did not contend, however, that its employees 

agreed to an on-duty meal period, no evidence of any such agreement was presented, and 

the evidence did not show that an on-duty meal period was necessary. 

Additionally, section 512, subdivision (e) provides that certain employees covered 

by collective bargaining agreements need not be provided with the meal period described 

in section 512, subdivision (a). But this exception only applies to employees in particular 

industries. (§ 512, subd. (f)).2 It did not apply to SFR employees.

 

2 Section 514 previously provided an exemption for employees in all industries who 

were covered by valid collective bargaining agreements from section 512’s meal period 

requirements, but the Legislature later amended section 514 so that it applies only to rules 

regarding overtime pay and alternative workweek schedules. (Thurman v. Bayshore 

Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1138.)
9

Thus, SFR was without authority to bargain away the required 30-minute meal 

period. “[T]he right to meal periods is a generally applicable labor standard that is not 

subject to waiver by agreement.” (Valles v. Ivy Hill Corp. (9th Cir. 2005) 410 F.3d 1071, 

1081; see also Zavala v. Scott Brothers Dairy, Inc. (2006) 143 Cal.App.4th 585, 593-594 

[following Valles].) Because the right to a 30-minute meal period in the first five hours 

of work was non-negotiable, SFR could not lawfully implement a shorter meal period 

schedule.

SFR’s plight does evoke some sympathy. The evidence shows that, when the 

collective bargaining agreement was negotiated in 2006, SFR would have preferred to 

provide an unpaid 30-minute break, but it acquiesced to the union and employee 

representatives’ demands for a paid 20-minute lunch break. The evidence also appears to 

show that SFR may have been unaware of the legal requirement of a 30-minute meal 

period. Ignorance, however, is not a defense to a Labor Code violation. (Heritage 

Residential Care, Inc. v. Division of Labor Standards Enforcement (2011) 192 

Cal.App.4th 75, 87.)

B. SFR has not demonstrated reversible procedural error

SFR argues that the trial court erred by granting summary adjudication while 

allowing for further proceedings on the issue of damages. It also contends that the court 

improperly prevented it from presenting defenses to the Labor Code claim. 

In granting summary adjudication as to the Labor Code claim, the court found that 

plaintiffs established SFR was liable for violating sections 512 and 226.7. The court did 

not determine the amount of damages awardable to plaintiffs. Instead, it ruled that trial 

might still be necessary to determine damages. Subsequently, the court granted 

plaintiffs’ motion in limine preventing SFR from presenting affirmative defenses. At 

trial, based on an accounting presented by plaintiffs’ expert witness, the court determined 

damages arising from the Labor Code claim.

We find no reversible error. Whether summary adjudication can properly be 

granted on a Labor Code claim without a determination of the actual amount of damages 

is somewhat unclear. In examining the propriety of summary adjudication of a breach of 
10

contract claim, Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 

226, 241 (Paramount Petroleum), found that, since a moving party must prove each 

element to obtain summary adjudication of a cause of action, and since damages are an 

element of a breach of contract cause of action, summary adjudication on only the issue 

of liability for breach of contract—with the amount of damages to be determined later—

is improper. In contrast, the plaintiff in People ex rel. Feuer v. Superior Court

(Cahuenga’s the Spot) (2015) 234 Cal.App.4th 1360 (People ex rel. Feuer) brought a 

UCL claim that sought civil penalties. The appellate court determined that the penalties 

were merely a remedy available to the plaintiff and were not an element of the cause of 

action. Thus, the plaintiff could properly bring a motion for summary adjudication of the 

UCL cause of action, with penalties appropriately determined in further proceedings. (Id.

at pp. 1364, 1372-1376.)

Plaintiffs’ Labor Code claim appears more analogous to the UCL claim examined 

in People ex rel. Feuer than the breach of contract claim at issue in Paramount 

Petroleum. Sections 512, subdivision (a), and 226.7, subdivision (b), lay out the 

elements for the meal period claim—generally, that an employer not employ an employee 

for more than five hours without providing a meal period of at least 30 minutes (§ 512, 

subd. (a)), and that an employer not require an employee to work during a mandated meal 

period (§ 226.7, subd. (b)). The remedy for a violation—premium pay—is separately set 

forth in section 226.7, subdivision (c). Thus, there appears to be no error in the trial 

court’s ruling here. 

In any event, we need not definitively determine whether summary adjudication of 

a meal period claim without determination of the actual amount of damages was entirely 

proper because, even if there was trial court error, SFR fails to demonstrate it was 

reversible error.3 The trial court found that plaintiffs established liability and were owed 

 

3 SFR also argues summary adjudication was improper because plaintiffs’ motion 

did not address SFR’s affirmative defenses. This argument is incorrect. (See Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 [“summary judgment law in this state 

no longer requires a plaintiff moving for summary judgment to disprove any defense 
11

damages, and it simply deferred the calculation of the actual amount of damages to trial. 

Subsequent to the court’s ruling on the motion for summary adjudication, both sides were 

given an opportunity to present an accounting to determine damages. At trial, plaintiffs 

presented an expert witness who opined on the amount of damages owing based on 

SFR’s payroll records. SFR, in contrast, declined the opportunity of an accounting, and 

presented no evidence to counter plaintiffs’ damages calculation.4

SFR also fails to demonstrate that the trial court erred when it granted plaintiffs’ 

motion in limine prohibiting SFR from presenting affirmative defenses relevant to the 

Labor Code claim at the damages trial. SFR already had the opportunity to argue its 

defenses in opposing the motion for summary adjudication. (See Code Civ. Proc., 

§ 437c, subd. (p)(1) [once plaintiff meets burden on motion for summary adjudication of 

a cause of action, burden shifts to defendant to show triable issue as to the cause of action 

or a defense].) It did not successfully do so. To the extent SFR takes issue with 

plaintiffs’ expert’s calculation of damages, it should have presented its own accounting.

Moreover, at the trial court level and on appeal, SFR has not identified a material 

issue of fact as to a defense that could have impacted the trial court’s ruling on the Labor 

Code claim. SFR asserts that it should have been allowed to argue a number of equitable 

defenses. Because plaintiffs established the Labor Code violation, however, equitable 

defenses did not apply. (See Ghory v. Al-Lahham (1989) 209 Cal.App.3d 1487, 1492; 

see also Cortez, supra, 23 Cal.4th 163, 179-180.) In Ghory, the plaintiff employee 

sought overtime compensation after working long hours as a gas station attendant for a 

 

asserted by the defendant as well as prove each element of his own cause of action. . . . 

All that the plaintiff need do is to ‘prove[] each element of the cause of action.’”].) 

4 At trial, SFR attempted to call its general manager to testify. The trial court did 

not allow the testimony, correctly finding that it was not relevant to the issue of 

accounting on the Labor Code claim. To the extent the general manager may have 

testified with respect to liability on the Labor Code claim, the testimony was irrelevant 

because plaintiffs had already established they received a 20-minute meal break during 

the relevant time period. 
12

fixed monthly wage. The defendant employer argued that, because he agreed beforehand 

with the plaintiff regarding the days and hours of employment, the plaintiff’s recovery of 

overtime compensation was precluded by the equitable defense of unjust enrichment. In 

rejecting this argument, the court concluded “[p]rinciples of equity cannot be used to 

avoid a statutory mandate.” (Ghory, at p. 1492; see also Gomez v. J. Jacobo Farm Labor 

Contr., Inc. (E.D.Cal. 2016) 2016 U.S. Dist. LEXIS 66922, *16-17 [equitable defenses, 

including waiver, not applicable to Labor Code requirements, including meal breaks].) 

Just so here: because the evidence showed that SFR did not provide the 30-minute meal 

period required by the Labor Code, no equitable defenses could counter or offset 

plaintiffs’ right to premium pay damages. 

Thus, the trial court correctly found liability and assessed damages on the Labor 

Code claim.

II. The UCL claim

As explained above, while the majority of restitution awarded by the trial court on 

the UCL claim was duplicative of the damages awarded on the Labor Code claim, 

$58,491 of the total amount awarded constituted only restitution under the UCL. This is 

because a UCL claim, even if based on a violation of the Labor Code, has a four-year 

statute of limitations, as opposed to the three-year statute of limitations applicable to the 

Labor Code claim at issue in this case. (Cortez, supra, 23 Cal.4th 163, 178-179; see also 

Bus. & Prof. Code, § 17208 [four-year statute of limitations]; Code Civ. Proc., § 338, 

subd. (a) [three-year statute of limitations for statutory liability].) These differing statutes 

of limitations matter here: although plaintiffs are properly awarded the damages already 

determined on the Labor Code claim, the extra $58,491 in restitution may be decreased or 

nullified on remand, as we find that SFR should be able to present evidence relevant to 

equitable considerations impacting remedies for the UCL violation.5

 

5 Actually, the entirety of the UCL restitution is potentially subject to decrease, if 

any is proper. Since the damages awarded on the Labor Code claim already represent a 

floor for the latter three years of violation, however, this determination as to remedies 
13

Plaintiffs had an actionable UCL claim based on SFR’s failure to provide a 30-

minute meal break. (See Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 

1155-1156 (Safeway) [UCL claim may be predicated on nonpayment for missed or 

shortened meal breaks].) Further, restitution under the UCL is properly sought for 

recovery of premium wages. (Id. at pp. 1155-1156, 1162; see also Cortez, supra, 23 

Cal.4th 163, 177-178 [orders for payment of unlawfully withheld wages are a proper 

remedy under the UCL].) Moreover, the trial court did not clearly err by finding liability 

on the UCL claim at the summary adjudication stage without determining the proper 

measure of restitution. (People ex rel. Feuer, supra, 234 Cal.App.4th 1360, 1364, 1372-

1376.)

Nevertheless, the trial court committed prejudicial error by preventing SFR from 

presenting evidence at trial relevant to the equities of restitution on the UCL claim. 

Although “equitable defenses may not be asserted to wholly defeat a UCL claim since 

such claims arise out of unlawful conduct,” “equitable considerations” may “guide the 

court’s discretion” in fashioning an appropriate remedy under the UCL. (Cortez, supra, 

23 Cal.4th 163, 179.) The purpose of UCL remedies is “deterrence of and restitution for 

unfair business practices.” (Ibid.) “Therefore, what would otherwise be equitable 

defenses may be considered by the court when the court exercises its discretion over 

which, if any, remedies authorized by [Business and Professions Code] section 17203 

should be awarded.” (Id. at pp. 179-180.) 

Defendants asserted a number of equitable defenses—including setoff, estoppel, 

waiver, and unclean hands—consideration of which is proper to determine the amount of 

restitution, if any, that is appropriately ordered.6 The evidence already presented shows 

 

will only materially impact the judgment as to the first year, for which only restitution is 

potentially awardable.

6 Among other possible considerations, “[i]n suitable circumstances, ‘the return of 

the excess of what the plaintiff gave the defendant over the value of what the plaintiff 

received’ is an appropriate measure of restitution.” (Safeway, supra, 238 Cal.App.4th 

1138, 1162.)
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that equity may require restitution of less than the amount awarded by the trial court, if 

any restitution is appropriate. Trial relevant to restitution and equitable considerations is 

necessary so that the trial court can properly decide an appropriate remedy for the UCL 

violation. 

III. SFR has forfeited challenge to the sustained demurrer to its cross-complaint

SFR filed a cross-complaint, and several amended cross-complaints, against the 

union and certain former employees. The trial court eventually sustained a demurrer to 

the third amended cross-complaint, without leave to amend. 

In its opening brief, SFR provides essentially no description of the allegations in 

the cross-complaint, the basis for demurrer, or legal reasoning relevant to its unsupported 

conclusion that the trial court erred by sustaining the demurrer. We therefore consider 

SFR’s argument as to this issue forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); In re 

Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to 

develop appellants’ arguments for them. [Citation.] The absence of cogent legal 

argument or citation to authority allows this court to treat the contentions as waived.”]; 

North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 679 [point not 

made in opening brief is forfeited].)

DISPOSITION

The judgment is reversed. On remand, the trial court shall conduct a bench trial to 

consider equities (based on SFR’s asserted equitable defenses) relevant to remedies for 

the UCL claim, liability having been established. The trial court shall determine, given 

equitable considerations, how much restitution, if any, is properly awarded to plaintiffs. 

No trial on the Labor Code claim is warranted, as the trial court has already appropriately 

determined liability and damages with respect to this claim. The order dismissing SFR’s 

cross-complaint is affirmed.
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The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.