Filed 12/17/18; Certified for Publication 1/3/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JMS AIR CONDITIONING AND 

APPLIANCE SERVICE, INC., 

Plaintiff and Appellant,

v.

SANTA MONICA COMMUNITY 

COLLEGE DISTRICT et al.,

Defendants and Respondents;

BERNARDS BROS., INC., 

Real Party in Interest and 

Respondent.

 B284068

 (Los Angeles County

 Super. Ct. No. BS163309)

Appeal from a judgment of the Superior Court of Los Angeles 

County, Amy D. Hogue, Judge. Affirmed.

Pitre & Teunisse and Randall J. Pitre for Plaintiff and 

Appellant JMS Air Conditioning and Appliance, Inc.

Carpenter, Rothans & Dumont, Justin Reade Sarno, and 

Louis R. Dumont for Defendants and Respondents Santa Monica 

Community College District and Greg Brown.

Pepper Hamilton, Ted R. Gropman, and Luke N. Eaton for Real 

Party in Interest and Respondent Bernards Bros., Inc. 
2

Plaintiff and appellant JMS Air Conditioning and Appliance, 

Inc. (JMS) appeals from the superior court’s June 5, 2017 denial 

of JMS’s petition for writ of administrative mandate. That petition 

asked the superior court to set aside an administrative decision by 

defendant and respondent Santa Monica Community College District 

(the District) that allowed a contractor with the District, real party in 

interest and respondent Bernards Bros., Inc., to substitute another 

subcontractor in the place of JMS on a construction project for the 

District. The court denied JMS’s petition, and for the reasons 

discussed below, we affirm the court’s denial.

FACTUAL AND PROCEDURAL BACKGROUND

JMS challenges a decision the District issued pursuant to 

procedures in the Subletting and Subcontracting Fair Practices Act 

(the Act) (Pub. Contract Code, § 4100 et seq.).1

The Act stems from legislative concerns about the practices of 

“bid shopping” and “bid peddling” on public works projects. “Bid 

shopping” is “the use of the low bid already received by [a] general 

contractor to pressure other subcontractors into submitting even 

lower bids.” (Southern Cal. Acoustics Co. v. C. V. Holder, Inc. (1969) 

71 Cal.2d 719, 726, fn. 7 (Southern Cal. Acoustics).) A subcontractor 

engages in “bid peddling” when it attempts to “undercut known 

[subcontract] bids already submitted to the general contractor in order 

to procure the job.” (Ibid.) The Legislature found that these practices 

result in “poor quality of material and workmanship to the detriment 

of the public, deprive the public of the full benefits of fair competition 

 

1 Unless otherwise specified, all statutory references are to the 

Public Contract Code.
3

among prime contractors and subcontractors, and lead to insolvencies, 

loss of wages to employees, and other evils.” (§ 4101.) 

The Act seeks to prevent these evils by “provid[ing] an 

opportunity to the awarding authority to investigate and approve the 

initial subcontractors and any proposed substitutions.” (Southern Cal. 

Acoustics, supra, 71 Cal.2d at pp. 725–726.) It requires that a general 

contractor specifically list in a bid for public work the subcontractors 

it intends to use for the project. (§ 4104.) Once the awarding 

authority accepts a bid, the Act permits the general contractor to 

substitute out a listed subcontractor only on certain enumerated 

bases, all but one of which relate to the subcontractor’s ability or 

willingness to perform the work, or to perform it appropriately.2 

(§ 4107, subd. (a).) The general contractor must receive approval 

from the awarding authority for any such substitution, and the Act 

establishes procedures for such requests. (Ibid.) These procedures 

require that a subcontractor receive written notice of a substitution 

request and, if the subcontractor timely objects, “the awarding 

authority” must hold a hearing to decide if it will allow the 

substitution. (Ibid.) 

 

2 Specifically, section 4107, subdivisions (a)(1)–(a)(4), 

(a)(6) & (a)(7) provide the following bases for substitution: 

(a) subcontractor refuses to execute subcontract; (b) subcontractor 

becomes bankrupt or insolvent; (c) subcontractor fails or refuses to 

perform; (d) subcontractor fails or refuses to meet bond requirements;

(e) subcontractor is not licensed; and (f) awarding authority 

determines subcontractor’s work is substantially unsatisfactory 

or not in substantial accordance with the specifications, or is 

substantially delaying or disrupting the progress of the work. 
4

A. JMS’s Work for the District

The District contracted with the general contractor Bernards 

Bros., Inc. (Bernards) to construct a new facility. In Bernards’s bid to 

the District for this work, it listed JMS as the subcontractor to install 

the heating, ventilation, and air conditioning system at the facility, 

per division 23 of the project specifications (the HVAC Specification). 

JMS holds a C-20 California contractor’s license to perform “warm-air 

heating, ventilating and air-conditioning” work. (Capitalization 

omitted.) Bernards and JMS entered into a subcontractor agreement 

in November 2014, and JMS commenced work in April 2015. The 

scheduled payment for all work JMS was to perform under the 

subcontract is approximately $8.2 million.

B. Bernards’s Substitution Request and the 

Substitution Hearing

On March 30, 2016, Bernards requested in writing that 

the District permit it to “substitute another [s]ubcontractor for 

JMS” because JMS had “failed or refused to perform its subcontract 

obligations and may not be properly licensed for a portion of its 

work pursuant to the [c]ontractors [l]icense [l]aw.” Bernards cited 

section 4107 subdivisions (a)(3) and (a)(6) as the statutory bases 

for its request, but provided no further detail. (Ibid.) The District 

forwarded a copy of the request to JMS that same day. In an April 5, 

2016 letter to the District, JMS objected to Bernards’s request. This 

objection triggered JMS’s right to a section 4107 substitution hearing. 

(See § 4107.) 

On April 12, 2016, the District proposed a hearing date of 

April 18, identified the “[h]earing [o]fficer” as Greg Brown, and set 

forth time limitations for the hearing. Brown is the facilities manager 
5

for Santa Monica Community College and thus “generally 

knowledgeable about the [p]roject.”

JMS objected to the April 18 date and the proposed time 

restrictions, and requested the District reschedule the hearing to no 

earlier than May 2. The District ultimately rescheduled the hearing 

for May 6, 2016. Brown informed the parties in advance that the 

hearing would be limited to two hours and that neither “[t]echnical 

rules of evidence” nor a right to cross-examine witnesses would apply.

At Brown’s invitation, JMS and Bernards each submitted 

written statements detailing their positions. Brown set no page limits 

on these statements, nor did he restrict the number of exhibits or 

written witness statements the parties could submit. In JMS’s April 

25, 2016 “Statement of Position,” JMS denied that it had refused to 

perform any work. As to Bernards’s claim that JMS lacked the proper 

license to do “a portion of ” work, JMS assumed that the claim related 

to the hydronic plumbing work listed in the HVAC Specification. JMS 

contended that this claim lacked merit because JMS’s C-20 HVAC 

license covered such plumbing work as “incidental and supplemental” 

or “essential” to HVAC work. JMS relied on Business and Professions 

Code section 7059, permitting specialty contractors to perform work 

that is “incidental and supplemental to the performance of the work 

in the craft for which the specialty contractor is licensed,” (Bus. & 

Prof. Code, § 7059, subd. (a)), as well as a California State Licensing 

Board (CSLB) regulation that defines “incidental and supplemental” 

as “essential to accomplish the work in which the contractor is 

classified.” (Cal. Code Regs., tit. 16, § 831.) 

Bernards submitted a May 3, 2016 “Statement of Position,”

which JMS counsel purports to have received on May 4, 2016,

that describes the factual basis for Bernards’s substitution request. 

In it, Bernards identified two types of work it contended JMS 
6

was not licensed to perform: The hydronic boiler work and the 

hydronic plumbing work listed in the HVAC Specification. The 

statement attaches a 250-page “Exhibit Book,” which contains, among 

other materials, documents detailing 21 “Performance Deficienc[ies],” 

and a written statement of Robert B. Berrigan, a lawyer and former 

licensing deputy for CSLB. 

In this unsworn statement, Berrigan stated that, while working 

at CSLB, he “reviewed the plans and specifications for all public 

work projects performed by” several public agencies “to determine 

the proper classification of contractor to perform the work involved.” 

He described his role there as “the ultimate administrative authority 

in [s]tate [g]overnment for determining whether a contractor’s license 

was required for any project or type of work,” and noted he often gave 

“expert testimony” in administrative hearings and civil litigation on 

this topic.

Berrigan opined that JMS is not licensed to perform the boiler 

work listed in the HVAC Specification. He concluded that boiler work 

is not “incidental and supplemental” or “essential” to HVAC work. On 

this basis, he further concluded that such boiler work is not covered by 

JMS’s C-20 HVAC contractor license and would instead require a C-4 

boiler license. Berrigan noted that he “ha[d] not formed an opinion” 

on whether JMS required a separate C-36 plumbing license to perform 

the hydronic plumbing work JMS had performed to date.

On May 6, 2016, Brown conducted the substitution hearing 

assisted by campus counsel, who “serv[ed] as [a] legal advisor to 

[Brown].” At the hearing, Brown accepted the written materials 

from both sides and afforded each side 40 minutes to present its case, 

as well as a 10-minute right of reply and brief closing arguments.

Bernards offered two of its employees as witnesses: Michael Toepfer, 

a senior project manager, and Dave Iman, a superintendent. None of 
7

the witnesses who spoke at the hearing did so under oath, nor did 

either party object to this. Both Toepfer’s and Iman’s statements 

focused on complaints about the quality and timeliness of JMS’s 

work. Toepfer, however, stated that JMS had not delayed the overall 

“critical path” of the project. Neither of Bernards’s witnesses disputed 

JMS’s contention that JMS had completed all work under the 

contract.

At the hearing, JMS provided Brown with written responses to 

the alleged performance deficiencies detailed in Bernards’s Exhibit 

Book. JMS president, Joe Messica, was JMS’s sole witness at the 

hearing. Messica is the “qualifier on JMS’s [C-20 contractor] license,” 

meaning he possesses “the degree of knowledge and experience in the

[C-20 HVAC] classification . . . and the general knowledge of the

building, safety, health, and lien laws of the state and of the 

administrative principles of the contracting business that [CSLB] 

deems necessary for the safety and protection of the public.” (See 

Bus. & Prof. Code, § 7068, subd. (a).) Messica stated that he had 

completed HVAC installations similar to the project, including 

“a $9.2 million project with UCLA Weyburn.” Messica further stated 

that he viewed the boiler work set forth in the HVAC Specification 

and the piping work JMS had done to date on the project as “essential 

to the HVAC system . . . installed by JMS.” JMS counsel reiterated 

its arguments that the boiler and plumbing work were “essential” to 

HVAC work, and that, therefore, both were covered by JMS’s license.

C. The Substitution Decision

On May 10, 2016, Brown sent a letter to the parties (the 

Substitution Decision), approving Bernards’s substitution request 

under section 4107, subdivision (a)(3) (failure to perform) and 

subdivision (a)(6) (lack of license). In the Substitution Decision, 

Brown declined to consider the argument Bernards raised in its 
8

statement of position that section 4107, subdivision (a)(7) (regarding 

unsatisfactory work) provides an additional basis for substitution, 

as Bernards did not list this basis in its initial substitution request. 

Brown did, however, consider the purported deficiencies in JMS’s 

work as relevant to other bases for substitution. Specifically, Brown 

concluded that JMS had “failed to perform” under the subcontract 

in that JMS had not performed its work “in the most sound, 

workmanlike, and substantial manner,” which the subcontract 

required.

Brown also found JMS was not licensed to perform “the work” 

under the subcontract, and that this provided another basis for 

substitution. He relied heavily on Berrigan’s statement for this 

conclusion, describing Berrigan as a “qualified expert in licensing” and 

noting that JMS “offered no expert testimony to rebut . . . Berrigan.” 

Brown described the Berrigan statement as “expressly reject[ing]” 

that either the C-4 boiler work or the C-36 plumbing work was 

“incidental and supplemental” to work covered by JMS’s C-20 HVAC 

license. Finally, Brown noted in the Substitution Decision that JMS 

had performed over $3 million worth of boiler and piping work, and 

that such a substantial amount of work could not be “incidental and 

supplemental.”

D. JMS’s Petition and Appeal

JMS filed a timely petition for writ of administrative 

mandamus. At the hearing on the writ, JMS argued that Brown 

lacked jurisdiction to hold the substitution hearing, that JMS was 

denied due process, and that the evidence presented at the hearing 

did not support the Substitution Decision. The court rejected 

JMS’s jurisdictional and due process arguments. The court found 

substantial evidence supported substitution based on improper 

licensure, but found that there was no substantial evidence to support 
9

substitution based on a “[f]ailure or [r]efusal to [p]erform.” (Italics 

and underlining omitted.) The court denied JMS’s petition and JMS 

timely appealed. 

DISCUSSION

I. Brown Had Jurisdiction to Approve Bernards’s Request 

for Substitution under Section 4107

JMS contends that Brown lacked jurisdiction to hear the 

substitution request because section 4107 authorizes only the 

District—and not any delegate thereof—to conduct a contested 

substitution hearing.

The District argues that this is a non-jurisdictional argument 

that JMS forfeited when JMS failed to raise the issue below. We 

disagree. Basically, JMS’s argument is that the entity making a 

decision affecting a statutory right and affording specific relief lacked 

authority to do so. This is the definition of a jurisdictional issue. (See

Black’s Law Dict. (10th ed. 2014) p. 980, col. 1 [defining “jurisdiction” 

as “[a] court’s power to decide a case or issue a decree”]; id., at p. 983, 

col. 2 [defining “subject-matter jurisdiction” as “[j]urisdiction over the 

nature of the case and the type of relief sought; the extent to which 

a court can rule on the conduct of persons or the status of things”].)

And a litigant cannot correct a jurisdictional deficiency by failing 

to object. (Harrington v. Superior Court (1924) 194 Cal. 185, 188; 

People v. Ainsworth (1990) 217 Cal.App.3d 247, 255.) We will 

therefore review the court’s decision that Brown had jurisdiction to 

hold the substitution hearing. Our review is de novo, as this issue 

presents a pure question of law. (Nasha v. City of Los Angeles (2004) 

125 Cal.App.4th 470, 482.)

JMS argues that the literal language of section 4107 supports 

its jurisdictional argument, and that any other reading would make 

section 4114 superfluous. We disagree.
10

JMS points out that virtually every time section 4107 references 

“the ‘awarding authority,’ ” it includes the qualifying language “or 

its duly authorized officer.” The only time the statute does not use 

this full phrase (“the awarding authority, or its duly authorized 

officer”) is when section 4107 identifies the entity to hold substitution 

hearings as simply “the awarding authority.” According to JMS, this 

shows the Legislature intentionally omitted the “duly authorized 

officer” qualifier to assure the awarding authority itself will conduct 

substitution hearings.

But the “plain meaning [of a statute] is discerned by reading the 

statute in context.” (Titan Electric Corp. v. Los Angeles Unified School 

Dist. (2008) 160 Cal.App.4th 188, 203, italics added.) Thus, “[l]iteral 

construction should not prevail if it is contrary to the legislative intent 

apparent in the statute.” (Lungreen v. Deukmejian (1988) 45 Cal.3d 

727, 735 (Lungreen).) Courts also consider the purpose of a statute 

in determining whether the Legislature intended to omit certain 

language. For example, in Wasatch Property Management v. Degrate

(2005) 35 Cal.4th 1111, 1118, the court considered the history of 

statutory amendments in concluding the Legislature had intentionally 

omitted language from a statute. And in Pasadena Police Officers 

Assn. v. City of Pasadena (1990) 51 Cal.3d 564, the court looked to 

the “competing interests underlying the Act” as “lend[ing] further 

support for” its decision not to imply use of a phrase the statute uses 

elsewhere. (Id. at p. 577.) Thus, although JMS is correct that courts 

generally should not insert words into a statute after the Legislature 

has chosen to omit them, that maxim does not permit this court to 

ignore the broader goals of the statute—particularly where the 

Legislature has codified those goals. (See § 4101.) 
11

Nothing in the record, nor the Act’s history, nor its overall 

structure suggests that preventing an awarding authority’s agent 

from conducting a substitution hearing might help combat bid 

shopping or bid peddling. Moreover, JMS reads section 4107 as 

micro-managing which individuals the awarding authority may 

designate to act on its behalf. Such an interpretation is at odds 

with the Act’s goal of more control for the awarding authority in 

selecting subcontractors. Our interpretation is also consistent with 

section 4107 subdivision (a), which requires “the awarding authority 

or its duly authorized agent” to consent to or reject the substitution. 

(Italics added.) Finally, our interpretation most efficiently services 

the statute’s goals. The District is an educational institution, and 

the primary purpose of its governing board is thus to educate—not 

to referee construction disputes. (See Doe v. Regents of University of 

California (2016) 5 Cal.App.5th 1055, 1078 [“ ‘A university’s primary 

purpose is to educate students: “[a] school is an academic institution, 

not a courtroom or administrative hearing room.” ’ ”].) Moreover, 

members of the District’s governing board do not necessarily have any 

background in construction; indeed, such background would be only 

fortuitous. Thus, requiring the District’s governing board—as opposed 

to a duly authorized delegate thereof with background and job 

responsibilities related to construction—to adjudicate a construction 

dispute would be an inefficient allocation of public resources.

JMS also urges that its literal interpretation of section 4107 is 

necessary to avoid rendering another section in the Act, section 4114, 

superfluous. Section 4114 expressly authorizes a county board of 

supervisors to “delegate its functions” as an awarding authority 

under section 4107 “to any officer designated by the board.” (§ 4114.) 

According to JMS, section 4114 would serve no purpose and make 

no sense if section 4107 already permits any awarding authority to 
12

delegate its section 4107 responsibilities. We agree that the interplay 

between these statutes renders the language of section 4107 less clear. 

What is clear, however, is the Legislature’s stated purpose in drafting 

the Act. And if it is possible to read the “letter” of both section 4107 

and section 4114 in a way that “conform[s] to the spirit of the act,” 

we must do so. (Lungreen, supra, 45 Cal.3d at p. 735.) We conclude 

this is possible by adopting our interpretation of section 4107. As 

discussed above, delegating the burden of conducting a section 4107 

hearing to an employee with relevant job responsibilities or other 

qualifications is highly efficient. This is particularly true for 

an awarding authority, such as a board of supervisors, shouldering 

a broad range of responsibilities. It makes sense, therefore, that 

the Legislature chose to reiterate, via section 4114, an awarding 

authority’s ability to delegate section 4107 responsibilities in 

situations where the authority is a board of supervisors. Our 

interpretation of section 4107 thus “conform[s] to the spirit” of the 

Act: encouraging awarding authority involvement in subcontracting 

decisions—in a manageable and practical way—with the larger goal 

of preventing bid shopping and bid peddling. 

We therefore reject JMS’s interpretation of section 4107 and 

conclude that Brown had jurisdiction to conduct JMS’s substitution 

hearing under section 4107. 

II. Neither the Substitution Hearing, Nor the Substitution 

Decision Affected a Fundamental Vested Right

JMS’s remaining arguments on appeal challenge (i) the 

due process afforded him at the substitution hearing, and (ii) the 

sufficiency of the evidence supporting the Substitution Decision. 

Crucial to our analysis of both arguments are the nature and scope 

of the rights at issue at substitution hearings and in the substitution 

decisions resulting therefrom. First, which subcontractor rights 
13

section 4107 affects informs the level of due process a substitution 

hearing must afford a subcontractor like JMS. (See Hannah v. 

Larche (1960) 363 U.S. 420, 442 (Hannah).) Second, whether Brown’s 

Substitution Decision substantially affects a fundamental vested 

right dictates the standard of review we must apply to JMS’s 

arguments regarding the sufficiency of the evidence. (Strumsky v. 

San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32

(Strumsky); Bixby v. Pierno (1971) 4 Cal.3d 130, 144 (Bixby).) Because 

the nature and scope of the rights implicated are threshold issues, 

we discuss them before directly addressing JMS’s due process and 

evidentiary arguments.

A. The Act Affords Subcontractors Only Limited, 

Ancillary Rights

The Act’s express and singular purpose is to prevent bid 

shopping and bid peddling. (See Discussion ante, part I.) As a 

byproduct of the Act’s efforts to accomplish this, subcontractors listed 

in a public bid enjoy limited statutory rights: The right to “perform 

the subcontract unless statutory grounds for a valid substitution 

exist” and the right to a section 4107 hearing, if the subcontractor 

timely objects to a substitution request. (See Southern Cal. Acoustics, 

supra, 71 Cal.2d at p. 727; see § 4107 [requiring hearing for properly 

contested substitution request]; see also Affholder, Inc. v. Mitchell 

Engineering, Inc. (2007) 153 Cal.App.4th 510, 517-518.) These rights 

are ancillary to the Act’s larger objectives; the Act did not set out to 

create and does not focus on rights for subcontractors. (See, e.g., id.

at p. 518.) Indeed, the Act protects subcontractors only to the extent 

that preventing bid peddling and bid shopping might protect them. 

(See Southern Cal. Acoustics, supra, 71 Cal.2d at p. 726 [Act’s goal 

is “to protect the public and subcontractors from the evils . . . of bid 

shopping and bid peddling subsequent to the award of the prime 
14

contract for a public [project]”].) The Act’s history confirms this. (See

Discussion ante, part I.) 

B. A Substitution Decision Affects Only a

Subcontractor’s Limited Ancillary Rights 

Under the Act 

A substitution hearing affects only the statutory rights of a 

subcontractor under section 4107. This is because substitution 

hearings are entirely creatures of the Act—without section 4107, no 

administrative action could second-guess a general contractor seeking 

to replace one of its subcontractors. The corollary to this is that a 

section 4107 substitution hearing does not adjudicate anything beyond 

those limited rights section 4107 created. 

Thus, a subcontractor like JMS remains free to pursue claims 

against the prime contractor that are not based on section 4107 

statutory rights or duties. For example, if JMS believes it was 

wrongfully terminated under the terms of the subcontract with 

Bernards, it may seek redress under the terms of that contract. 

Indeed, JMS has sought such redress.3 Likewise, JMS’s defenses

 

3 On April 5, 2018, we granted JMS’s unopposed request 

for judicial notice on appeal, which attached a complaint JMS filed 

against Bernards on December 1, 2017, titled “complaint for damages 

for breach of contract; common counts; for recovery on payment 

bond.” (Capitalization omitted.) In it, JMS alleges Bernards breached 

the subcontract regarding the project “wrongfully and without legal 

justification” when Bernards “removed JMS from the [p]roject.” The 

complaint notes that JMS is suing primarily to stay the statute of 

limitations on these claims, as the subcontract provides for arbitration 

of disputes.
15

against the indemnification claims JMS’s surety has filed,

4 or in any 

future CSLB licensing proceeding, remains unaffected in the wake of 

the Substitution Decision. 

Moreover, as JMS points out in its own brief, the findings in 

the Substitution Decision do not “possess a judicial character” and 

thus have no binding effect in non-section 4017 civil or administrative 

actions. (See, e.g., Y.K.A. Industries, Inc. v. Redevelopment Agency 

of City of San Jose (2009) 174 Cal.App.4th 339, 357 [“ ‘For an 

administrative decision to have collateral estoppel effect, it and its 

prior proceedings must possess a judicial character . . . includ[ing] . . . 

testimony given under oath or affirmation [and] a party’s ability 

to subpoena, call, examine, and cross-examine witnesses.’ ”].) For 

example, the Substitution Decision does not prevent the trier of fact in 

any such case from determining that JMS did not need any additional 

licenses in order to perform the boiler and plumbing work, or from 

 

4 Exhibit 13 to JMS’s request for judicial notice (see fn. 3, ante) 

contains a verified complaint of JMS’s surety, Berkley Insurance 

Company, against JMS and its principals. The complaint seeks

indemnification under an agreement between JMS and Berkley, 

executed as a condition of the bond Berkley issued regarding JMS’s 

work on the project. The complaint alleges Bernards has sought to 

collect from Berkley based on JMS being in “default” following its 

termination from the project. Specifically, the complaint attaches 

correspondence from Bernards to Berkley informing the former of 

JMS’s termination from the project, that Bernards will be engaging 

the services of another subcontractor to complete the project, and that 

Bernards will seek from Berkley any costs associated with this work 

that exceed the price under the subcontract with JMS. 
16

reaching a conclusion regarding whether JMS performed its work to 

the required standard.5

In short, the Substitution Decision affects only JMS’s rights 

under section 4107. All of JMS’s other rights and remedies remain 

unaffected.

C. The Substitution Decision Does Not Affect 

“Fundamental, Vested Rights”

Courts determine on a case-by-case basis whether a right is 

“vested” and “fundamental,” taking into account both economic effects 

and effects “in human terms and the importance of [the right] to the 

individual in the life situation.” (Bixby, supra, 4 Cal.3d at p. 144.) 

Courts have rarely viewed purely economic interests, such as the 

right to profit under a particular business venture, as a fundamental 

vested right. (See, e.g., Kawasaki Motors Corp. v. Superior Court

(2000) 85 Cal.App.4th 200, 204 (Kawasaki Motors Corp.) [privilege 

 

5 Interior Systems, Inc. v. Del E. Webb Corp. (1981) 

121 Cal.App.3d 312, does not require a different collateral estoppel 

analysis. In that case, after receiving a prime contractor’s request 

to substitute one of its subcontractors, an awarding authority 

conducted a section 4107 substitution hearing and concluded 

statutory grounds existed for the substitution. (Id. at pp. 314-315.) 

The subcontractor did not pursue administrative review of the 

Substitution Decision, and instead sued the prime contractor for 

damages, alleging the prime contractor had violated its “statutory 

duty” under section 4107. (Id. at pp. 314-315, 319.) The court held 

that the subcontractor could only challenge the Substitution Decision 

by writ of mandate. (Id. at p. 320; see id. at pp. 318-319.) Applying 

this same logic here, because we affirm the Substitution Decision, 

JMS is precluded from suing for violation of section 4107. But this 

preclusion does not apply to any other actions or defenses.
17

to operate a Kawasaki dealership is not a fundamental right].) 

The Substitution Decision terminates JMS’s right to work on 

one particular project, nothing more. Thus, although it may 

cause JMS to lose money, it affects a purely economic right that is 

not fundamental. (See Champion Motorcycles, Inc. v. New Motor 

Vehicle Bd. (1988) 200 Cal.App.3d 819, 825 [rejecting argument that 

“enormous” financial losses affected fundamental rights].) Purely 

financial effects will only affect “fundamental” rights in extreme, 

unique situations, such as when an administrative decision imposes

“operating conditions [that] severely impair their ability to function 

or . . . drive [the company] out of business.” (See Benetatos v. City 

of Los Angeles (2015) 235 Cal.App.4th 1270, 1281-1282.) The 

Substitution Decision does no such thing. It imposes no restrictions 

on JMS’s ability to function. And, as we have discussed, to the extent 

JMS argues other proceedings, such as the indemnification suit, 

threaten to put the company out of business, the decisions in those 

separate proceedings—proceedings in which the the Substitution 

Decision findings can have no collateral estoppel effect—would be the 

cause, not the Substitution Decision. 

Bearing in mind the limited scope and non-fundamental nature 

of the rights the substitution hearing and Substitution Decision affect, 

we consider JMS’s due process and evidentiary arguments.

III. The Hearing Afforded JMS the Due Process Required 

for a Substitution Hearing

JMS contends that several aspects of the substitution hearing 

denied it due process. These arguments present primarily legal 

issues and involve mainly undisputed facts. Therefore, we will 

“exercise our own judgment” regarding “whether appellant received 

a fair administrative trial.” (Vollstedt v. City of Stockton (1990) 
18

220 Cal.App.3d 265, 273.) Exercising such judgment, we conclude 

that JMS received the due process required for a substitution hearing.

JMS does not dispute that it presented its case to a neutral 

decision maker; it had an unlimited opportunity to present 

documents, written witness statements and argument; it had the 

opportunity to present in-person witnesses and oral argument at the 

hearing. Moreover, JMS availed itself of these opportunities. And 

although JMS disputes whether the notice JMS received was timely 

(see Discussion post, part III.C), JMS received a detailed description 

of Bernards’s complaints in advance of the substitution hearing. 

Nothing prevented JMS from requesting a continuance if it needed 

more time to prepare. 

Nevertheless, JMS argues the substitution hearing did not 

constitute a fair trial because: (1) Brown, rather than the District’s 

governing board, conducted the hearing; (2) JMS did not have the 

opportunity to cross-examine witnesses; (3) the hearing was too short 

in light of the complex issues presented; and (4) JMS received 

insufficient notice of the specific factual bases for the substitution 

request.

What procedural safeguards are necessary to achieve due 

process “varies according to specific factual contexts” and depends 

on “a complexity of factors,” including “nature of the alleged right 

involved, the nature of the proceeding, and the possible burden on 

that proceeding.” (Hannah, supra, 363 U.S. at p. 442.) Due process 

ultimately requires that proceedings “ ‘ “be tailored, in light of the 

decision to be made, to ‘the capacities and circumstances of those 

who are to be heard,’ [citation] . . . to insure that they are given a 

meaningful opportunity to present their case.” ’ ” (Doe v. Regents 

of University of California, supra, 5 Cal.App.5th at p. 1078.) 

As discussed above, the “decision to be made” at a section 4107 
19

substitution hearing is entirely a construct of the Act and affects 

only those limited rights the Act itself creates for the limited 

purpose the Act identifies. (See Discussion ante, parts I & II.) In 

the context of that limited purpose and the limited nature of the 

rights affected, we conclude that a substitution hearing requires a 

correspondingly limited amount of process. We further conclude that, 

for the reasons discussed in more detail below, neither any of JMS’s 

proffered deficiencies individually, nor their cumulative effect on 

the substitution hearing, deprived JMS of the limited due process 

required at a substitution hearing. 

A. Hearing Officer

JMS argues the substitution hearing did not constitute a fair 

trial because Brown, rather than the District governing board, 

conducted the hearing. As discussed above, we disagree with JMS’s 

argument that section 4107 permits only the “awarding authority” 

itself to conduct a substitution hearing. (See Discussion ante, part I.)

B. Cross-Examination and Length of Proceedings

JMS argues it did not have a meaningful opportunity to present 

its defense, because it could not cross-examine any witnesses6 or 

sufficiently address the complex issues in the two hours Brown 

allotted for the hearing. 

Nothing in section 4107 requires a hearing of a particular length 

or the opportunity to cross-examine witnesses. Nor does due process 

require “full rights of confrontation and cross-examination” at all 

 

6 Before and during the substitution hearing, JMS did not 

object to the lack of cross-examination. It has thus forfeited the issue. 

Nevertheless, we exercise our discretion to address JMS’s argument, 

and conclude it has no merit.
20

administrative proceedings. (Saleeby v. State Bar (1985) 39 Cal.3d 

547, 565.) Instead, as discussed above, it requires a reasonable 

opportunity to be heard, taking into account the “specific factual 

context.” (Hannah, supra, 363 U.S. at p. 442.) We see nothing in 

the specific facts of this case to suggest that either the length of 

the hearing or the lack of cross-examination prevented JMS from 

meaningfully defending itself. At and before the hearing, JMS 

offered evidence and argument responding to Bernards’s witnesses. 

It received Berrigan’s statement prior to the hearing and presented 

a witness and legal arguments responding to the licensing opinions 

Berrigan offered. Bernards’s two witnesses described the quality 

of JMS’s work and the notices of deficiency, all of which JMS had 

received in advance of the hearing (first in the normal course of 

business, then in Bernards’s May 3, 2016 Exhibit Book). At the 

hearing, JMS offered the in-person statement of its president and

additional documents responding to Bernards’s complaints. Brown 

did not limit the amount of written evidence or written advocacy that 

JMS could offer before or at the hearing.

We also consider the burden on the District—whose mission, 

as previously noted, is to educate, not to conduct hearings regarding 

construction disputes—were we to require a longer, more formal 

hearing. (Hannah, supra, 363 U.S. at p. 442 [due process analysis 

considers “the possible burden on that proceeding”]; see Doe v. Regents 

of University of California, supra, 5 Cal.App.5th at p. 1078 [university 

disciplinary hearing need not include all the formalities of a trial 

as this“ ‘would divert both resources and attention from a university’s 

main calling, that is education’ ”].) 
21

Finally, we consider the practical need to resolve these disputes 

quickly to prevent delay in completing a project. It would be 

inefficient to subject the timeline of a public works projects to 

potentially significant delays in order to accommodate that process. 

On these facts, and in the context of a section 4107 hearing,

neither the lack of cross-examination, nor the length of the 

substitution hearing denied JMS a reasonable opportunity to be 

heard. 

C. Sufficiency of Notice

Bernards’s initial substitution request stated that JMS might 

not be licensed to perform “some portions” of the subcontract. Two 

days before the hearing, JMS learned the specific work Bernards felt 

JMS was unlicensed to perform: Hydronic piping and hydronic boiler 

work. This, JMS argues, does not comply with section 4107’s notice 

requirement and did not afford JMS enough time to develop a robust 

defense to the licensing arguments. We disagree. 

First, the District complied with the notice requirements in 

section 4107, subdivision (a) by informing JMS about the hearing 

more than five days in advance thereof (see § 4107, subd. (a)), and 

by telling JMS “in writing” the “reasons for the request” well before 

the District approved it. (Ibid.)

Second, notice comports with due process where it provides 

sufficient information, in light of the particular circumstances, to 

“fully and fairly apprise[] [an administrative litigant] of the charges 

with sufficient certainty to prepare his defense thereto.” (Stoumen v. 

Munro (1963) 219 Cal.App.2d 302, 307.) Where a litigant receives 

“reasonable notice and a reasonable opportunity to be heard, that is 

all that is required.” (Drummey v. State Bd. of Funeral Directors 

(1939) 13 Cal.2d 75, 80–81.) In the context of the statutory purpose of 

the Act, the limited legal consequences of a substitution decision, and 
22

practical concerns regarding timing, we conclude JMS received such 

reasonable notice, sufficient to satisfy due process.

More than two weeks before the hearing, JMS stated that it 

“understand[s] that Bernards is contending JMS needs a C-36 

(plumbing) license to install the hydronic and/or refrigerant piping 

that is integral to moving water and refrigerant within each of the 

systems JMS is installing.” Thus, the only specific complaint JMS 

was first aware of two days before the hearing was the lack of 

licensure for the boiler work. Nonetheless, at the hearing, JMS failed 

to request a continuance to prepare additional evidence and argument 

to defend against Bernards’s boiler licensure argument. Instead, JMS 

presented testimony and documents responsive to both the plumbing 

and boiler license issues.

JMS also contends that it did not receive sufficient notice 

of Bernard’s substitution request based on a “fail[ure] or refus[al] to 

perform” under section 4107, subdivision (a)(3). The superior court 

concluded, however, that the evidence was insufficient to support 

substitution on this basis. Neither party has challenged that 

conclusion. Whether JMS received sufficient notice regarding this 

ground is therefore a moot question we need not address. 

III. Substantial Evidence Supports the Substitution Decision

Lastly, we turn to JMS’s challenge to the sufficiency of the 

evidence supporting the Substitution Decision. The parties disagree 

as to the appropriate standard of review. JMS urges this court to 

conduct an independent review of the Substitution Decision, while 

the District maintains that substantial evidence review is appropriate. 

Because the Substitution Decision did not substantially affect a 

fundamental vested right (see Discussion ante, part II.B), the 

substantial evidence standard applies. We further conclude that 

substantial evidence supports Brown’s ultimate decision to grant 
23

Bernard’s substitution request based on JMS’s lack of a C-4 boiler 

license.

A. We Review the Substitution Decision for

Substantial Evidence, Because the Decision 

Does Not Substantially Affect Any Fundamental, 

Vested Right

Code of Civil Procedure section 1094.5 permits review of 

administrative actions by writ of mandate to determine “whether 

there was any prejudicial abuse of discretion.” (Code Civ. Proc. 

§ 1094.5, subd. (b).) Where the petitioner contends administrative 

findings are unsupported by the evidence, Code of Civil Procedure 

section 1094.5 contemplates two possible standards of review for 

the superior court, depending on the nature of the right involved. 

(Strumsky, supra, 11 Cal.3d at p. 32; Code Civ. Proc., § 1094.5, 

subd. (c).) If the administrative decision “substantially affects” a 

“fundamental[,] vested right,” the superior court must exercise its 

independent judgment on the evidence. (Strumsky, supra, 11 Cal.3d 

at p. 32; Bixby, supra, 4 Cal.3d at p. 144.) In all other cases, the 

superior court will determine whether the administrative findings

are “supported by substantial evidence in the light of the whole

record.” (Code Civ. Proc., § 1094.5, subd. (c).) The concern motivating 

a less deferential review of administrative decisions affecting 

fundamental rights is that such rights should not be “extin[guished] 

or abridge[d] by a body lacking judicial power.” (Frink v. Prod (1982) 

31 Cal.3d 166, 176 (Frink).)

A Court of Appeal then reviews for substantial evidence, but 

what the appellate court reviews depends, again, on whether a 

fundamental vested right is involved. If it is, “and the trial court 

therefore exercised independent judgment, it is the trial court’s 

judgment that is the subject of appellate court review. [Citations.] 
24

On the other hand, if the superior court properly applied substantial 

evidence review because no fundamental vested right was involved, 

then the appellate court’s function is identical to that of the trial 

court. It reviews the administrative record to determine whether 

the agency’s findings were supported by substantial evidence.

(JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 

142 Cal.App.4th 1046, 1058.) 

As discussed above, the Substitution Decision regarding JMS 

affects only JMS’s rights under section 4107, including its right to 

work on the project, absent a statutorily enumerated basis for

substitution. (See Discussion ante, part II.B.) This is not a 

fundamental vested right. (See ibid.) JMS nevertheless argues that 

the Substitution Decision will indirectly affect other rights, and that 

those indirectly-affected rights are fundamental. 

JMS first suggests the Substitution Decision’s findings that 

JMS “ ‘failed and refused’ to perform” and was unlicensed to perform 

some of the subcontract work has set in motion a chain of events 

that threaten JMS’s financial viability. But the indirect causal 

relationships JMS posits between the Substitution Decision and 

events potentially affecting JMS’s financial viability do not transform 

the nature of that decision, such that it “substantially affects” JMS’s 

ability to do business. For example, JMS argues these findings have 

“impaired JMS’s bonding capacity, which means it cannot obtain 

public works projects.” Yet the Substitution Decision has no binding 

legal effect on JMS’s ability to procure bonding; the District could not 

and did not consider that issue at the substitution hearing. Similarly, 

JMS contends the Substitution Decision led to indemnification claims 

against JMS in excess of $3 million. But again, these claims—not 

the Decision—are the source of the financial losses JMS fears. What 

financial effect, if any, these indemnification claims will have on JMS 
25

depends on separate judicial proceedings in which, again, the 

Substitution Decision can have no preclusive effect. 

JMS next argues the Substitution Decision significantly affects 

JMS’s fundamental right to its HVAC license. JMS identifies the 

following causal chain: The Substitution Decision found that JMS 

had performed work for which JMS was not properly licensed; this is 

a basis for the state licensing board to discipline JMS (Bus. & Prof. 

Code, § 7090); and such discipline could include terminating 

JMS’s current HVAC license. (Bus. & Prof. Code, § 7095 [modes 

of discipline].) But again, the Substitution Decision can have no 

preclusive effect in the CSLB’s licensing decisions or any judicial 

review of those licensing decisions. 

To support its arguments that indirect or delayed effects 

sufficiently implicate a fundamental vested right, JMS relies 

primarily on Wences v. City of Los Angeles (2009) 177 Cal.App.4th 

305. Wences involved a police department’s official reprimand for 

misconduct. (Id. at p. 311). The reprimand was placed in Wences’s 

employment file and did not have any immediate financial or 

employment consequences. (Id. at p. 316.) The court nevertheless 

concluded the reprimand significantly affected Wences’s fundamental 

right to public employment, because it would affect any future police 

department discipline or employment decisions. (Ibid.) 

JMS’s reliance on Wences is misplaced not only because 

the requisite causal connection between the Substitution Decision 

and HVAC licensure is lacking, but also because the policy motivating 

Wences is wholly inapplicable here. Independent review of evidence 

presented to an administrative entity is only necessary where 

the right affected is “too important to the individual to relegate 

it to exclusive administrative extinction.” (Bixby, supra, 4 Cal.3d 

at p. 144.) Put differently, the goal is to prevent administrative 
26

decision makers from acting as largely unchecked final arbiters of 

fundamental rights. This risk existed in Wences, because the police 

department was the arbiter of both the reprimand at issue and all 

future employment decisions that reprimand might affect. Thus, 

deferring too strongly to the police department threatened to make 

it a nonjudicial final arbiter of Wences’s fundamental right to public 

employment. Under such circumstances, substantial evidence review 

was insufficient. 

By contrast, the District is not the arbiter of whether JMS 

retains its HVAC license. The CSLB must make that determination 

independent of the Substitution Decision itself. In addition, JMS 

will have the opportunity to seek judicial review of any such CSLB 

decision, and the court conducting such a review will consider the 

nature of JMS’s right to its HVAC license in selecting the appropriate 

standard of review to apply. Thus, our decision that a substantial 

evidence standard of review applies to the Substitution Decision will 

not leave the fate of JMS’s HVAC license in nonjudicial hands—far 

from it. Wences is distinguishable on this basis and does not counsel 

in favor of a heightened standard of review. 

Finally, the unique nature of a section 4107 substitution 

decision renders a deferential standard of review particularly 

appropriate. Section 4107 presents a “regulatory interference with 

contractual rights,” such that “very different policies govern” than 

would in a purely regulatory context. (Kawasaki Motors Corp., supra, 

85 Cal.App.4th at p. 204 [distinguishing “privilege to operate a 

Kawasaki dealership” from a right to renew a city permit].) Moreover, 

in determining the scope of our review, we are cognizant of the goals 

of the statute; with these in mind, we will not be quick to second-guess 

the findings of awarding authorities, to which section 4107 seeks to 

give more control, not less. 
27

The superior court therefore correctly applied the substantial 

evidence standard of review, and we review “the agency’s decision, 

rather than the trial court’s decision” under the substantial 

evidence standard as well. (Schafer v. City of Los Angeles (2015) 

237 Cal.App.4th 1250, 1261.) 

This standard of review is highly deferential, and we must 

“ ‘resolv[e] all conflicts in the evidence and draw[] all inferences in 

support of [the administrative findings].’ ” (Tennison v. California 

Victim Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 

1164, 1180-1181.) A review for substantial evidence tests only 

whether there is substantial evidence to support the decision, not 

whether other facts in the record contradict that evidence. (Escamilla 

v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 

498, 514.) “[S]ubstantial” refers to the quality, not the quantity of 

the evidence presented. (Hope v. California Youth Authority (2005) 

134 Cal.App.4th 577, 589.)

B. Substantial Evidence Supports the Finding 

That JMS Was Not Licensed to Perform the 

Boiler Work Set Forth in the Specification

At the substitution hearing, the parties presented conflicting 

testimony on whether the boiler work was “incidental and 

supplemental” or “essential” to HVAC work. Messica stated that it is; 

Berrigan offered his written opinion that it is not. Berrigan further 

opined that JMS’s C-20 HVAC license did not permit JMS to perform 

the boiler work under the HVAC Specification. We must defer to the 

administrative decision maker regarding credibility of witnesses and 

the relative weight to give two pieces of conflicting testimony. (City 

of Fontana v. California Dept. of Tax & Fee Administration (2017) 

17 Cal.App.5th 899, 919 (City of Fontana) [“ ‘ “[i]t is for the agency to 

weigh the preponderance of conflicting evidence” ’ ”]; see Leff v. Gunter
28

(1983) 33 Cal.3d 508, 518 [“ ‘we have no power to judge . . . the 

effect or value of the evidence, to weigh the evidence, to consider the 

credibility of the witnesses, or to resolve conflicts in the evidence’ ”].) 

Under the substantial evidence standard, courts may reverse an 

agency’s decision only if, based on the evidence before the agency, 

“a reasonable person could not reach the conclusion reached by 

the agency.” (City of Fontana, supra, 17 Cal.App.5th at p. 919.) We 

have no such basis for second-guessing Brown’s decision to believe 

Berrigan’s testimony over Messica’s.7 Berrigan worked for several 

years for CSLB and was responsible for determining whether a 

particular contractor was licensed to perform a particular project. 

Berrigan also has offered expert testimony in other matters regarding 

which licenses CSLB would require for a particular construction 

project.8 (See, e.g., Ron Yates Construction Co. v. Superior Court

(1986) 186 Cal.App.3d 337, 347.) On this record, and given the 

deferential nature of our review, substantial evidence supports the 

District’s finding that JMS was not licensed to perform the boiler work 

in the HVAC Specification. 

 

7 We need not address JMS’s argument that the Berrigan 

statement constitutes hearsay, as JMS failed to object to the 

declaration on this basis at the substitution hearing. Nor are we 

convinced that case law limiting the use of hearsay in administrative 

proceedings necessarily applies in the limited context of section 4107 

substitution hearings, given their informal nature, narrow scope, and 

minimal preclusive effect. 

8 JMS argues that the Berrigan statement offers legal 

conclusions masquerading as expert opinion and thus cannot provide 

“substantial evidence.” JMS did not object on this basis at the 

substitution hearing and therefore has forfeited the issue.
29

C. Substantial Evidence Does Not Support the 

Finding That JMS Was Not Licensed to Perform 

the Plumbing Work Set Forth in the HVAC 

Specification

The Berrigan statement and the parties’ briefing discuss two 

distinct categories of work for which the District contends JMS was 

not licensed: plumbing work and boiler work. As we have discussed 

above, sufficient evidence supports Brown’s decision regarding 

the boiler work. Berrigan, however, expressly disclaimed offering any 

opinion on whether “the extensive piping work that JMS performed 

on the project was outside of the C-20 Classification,” though he noted 

such work “could be performed by a C-36 Plumbing Classification.” 

He likewise offered no opinion about whether that plumbing work is 

“essential” or “incidental and supplemental” to HVAC work (and, 

thus, according to JMS, work covered by JMS’s HVAC license). (See

Factual and Procedural Background ante, part B.) As the Berrigan 

statement is silent on this issue, the only evidence the parties offered 

regarding plumbing licensure is (1) Messica’s testimony that such 

work is “essential” to HVAC work, and (2) the over $1.6 million 

scheduled value of plumbing work covered by the HVAC Specification, 

which the Substitution Decision cites as supporting the finding that 

such work is not “incidental and supplemental” to approximately 

$8 million worth of HVAC work. Even affording great deference 

to Brown’s assessment of the evidence, and even acknowledging his 

familiarity with the project, we cannot accept Brown’s conclusion 

that the value or extent of the plumbing work alone determines its 

relationship to HVAC work. And because no other evidence supports 

the conclusion regarding JMS’s licensure to perform the plumbing 

work in the HVAC Specification, the finding fails the substantial 

evidence test. In order for substantial evidence to support the 

Substitution Decision, we need only find substantial evidence 
30

supporting one of the grounds for substitution the decision identifies. 

Thus, in light of our previous conclusion that substantial evidence 

supports Brown’s approval of the substitution based on JMS’s lack 

of boiler licensure, the lack of substantial evidence supporting 

substitution based on plumbing licensure issues does not require 

reversal of the trial court’s decision.

IV. The Court Properly Denied JMS’s Petition

Because Brown had jurisdiction to hold the substitution 

hearing, because that hearing afforded JMS the limited due process 

appropriate in the context of section 4107, and because substantial 

evidence supports Brown’s Substitution Decision, we conclude that 

the superior court did not err in denying JMS’s petition for a writ of 

administrative mandamus. We note, however, that our conclusion is 

driven by the very limited nature of our role as a court reviewing a 

section 4107 substitution decision. In this role, we may not and 

do not reach any conclusions regarding whether or how JMS has 

performed under the subcontract, or the type of work JMS is licensed 

to perform. Ours is to determine whether the record before us 

contains substantial evidence supporting the Substitution Decision. 

The Substitution Decision is not a typical administrative decision. 

Rather, it is the product of a unique statutory scheme with very 

specific, limited objectives, and thus affects very specific, limited 

rights. With the scope and nature of these objectives and effects 

in mind, based on the record before us, and applying a deferential 

standard of review to this type of quasi-administrative action, we 

affirm.
31

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs 

on appeal.

ROTHSCHILD, P. J.

We concur.

CHANEY, J.

BENDIX, J.
Filed 1/3/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JMS AIR CONDITIONING AND 

APPLIANCE SERVICE, INC., 

Plaintiff and Appellant,

v.

SANTA MONICA COMMUNITY 

COLLEGE DISTRICT et al.,

Defendants and Respondents;

BERNARDS BROS., INC., 

Real Party in Interest and 

Respondent.

 B284068

 (Los Angeles County

 Super. Ct. No. BS163309)

 ORDER CERTIFYING

 PUBLICATION OF OPINION

THE COURT:

The opinion in the above-entitled matter filed on December 17, 

2018, 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.

_____________________________________________________________ 

ROTHSCHILD, P. J. CHANEY, J. BENDIX, J.