Filed 5/3/22 Pacificare Life & Health Ins. Co. v. Lara CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

PACIFICARE LIFE AND HEALTH 

INSURANCE COMPANY,

 Plaintiff and Appellant,

v.

RICARDO LARA, as Insurance 

Commissioner, etc.,

 Defendant and Appellant.

 G056160

 (Super. Ct. No. 30-2014-00733375)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kim 

Garlin Dunning, Judge. Reversed and remanded. Plaintiff and Appellant’s request for 

judicial notice denied.

Gibson, Dunn & Crutcher, Daniel M. Kolkey, Theodore J. Boutrous, Jr., 

Joseph A. Gorman, Deena B. Klaber, Elizabeth A. Dooley, Kahn A. Scolnick, and

Michael J. Holecek for Plaintiff and Appellant.
2

Xavier Becerra and Ron Bonta, Attorneys General, Tamar Pachter, 

Assistant Attorney General, Lisa W. Chao and Laura E. Robbins, Deputy Attorneys

General; Strumwasser & Woocher, Michael J. Strumwasser, Bryce A. Gee, and Caroline 

Chiapetti for Defendant and Appellant.

California Appellate Law Group, Ben Feuer and Julia Partridge for the 

Chamber of Commerce of the United States of America and the California Chamber of 

Commerce as Amici Curiae on behalf of Plaintiff and Appellant.

Greenberg Traurig and William Gausewitz for the American Council of 

Life Insurers, the American Property Casualty Insurance Association, the Association of 

California Life and Health Insurance Companies and the Personal Insurance Federation 

of California as Amici Curiae on behalf of Plaintiff and Appellant. 

* * *

This is a complicated case with a voluminous record. To borrow a phrase 

used by one counsel during oral argument, it is “a beast.” 

It began when PacifiCare Life and Health Insurance Company (PacifiCare) 

petitioned for a writ of mandate, seeking to reverse a penalty of nearly $175 million 

assessed against it by the Insurance Commissioner of the State of California (the 

Commissioner). The penalty was not a single assessment; rather it was the sum of 

penalties assessed for 19 distinct categories of wrongdoing, each involving anywhere 

from 2 to 462,805 violations.1 The total number of alleged violations exceeds 900,000. 

The Decision was 220 pages long; the trial court’s statement of decision, which is a 

primary focus of this appeal and is incorporated by reference into its judgment granting 

the writ of mandate, is 43 pages long. The administrative record exceeds 50,000 pages. 

1 The Commissioner’s decision (the Decision) identifies 20 categories of 

violations. However, one category—misrepresenting facts to the California Department 

of Insurance—was not separately penalized. Instead, it was considered an aggravating 

factor in assessing other penalties. 
3

Because PacifiCare’s challenge to the penalty categories included 

arguments that three regulations relied upon by the Commissioner throughout the 

Decision were facially invalid, the court and parties agreed to bifurcate the case to first 

address those issues in a “phase 1” proceeding. 

After the trial court ruled that all three regulations were facially invalid, the 

court and the parties cooperated to create appellate jurisdiction for what was effectively 

an interim appeal of that ruling. While that appeal was pending, both the trial court and 

this court declined to stay further proceedings. 

Phase 2—the writ of mandate trial—therefore moved forward with the 

court and both parties apparently assuming the three challenged regulations were in fact 

invalid due to the trial court’s ruling in phase 1. At the conclusion of phase 2, the trial 

court granted the writ of mandate, reversing all 19 categories of penalties. The reversal 

of each category was based, at least in part, on the trial court’s phase 1 ruling which had 

invalidated the regulations.

After the trial court’s entry of the judgment in the phase 2 trial, we issued 

our decision in the first appeal, PacifiCare Life & Health Ins. Co. v. Jones (2018) 

27 Cal.App.5th 391 (PacifiCare I). The PacifiCare I opinion reversed the trial court’s 

ruling that the three regulations were invalid. The trial court agreed with counsel that it 

was precluded from reassessing its writ of mandate ruling in the wake of our decision due 

to the pendency of the parties’ phase 2 appeals. 

We now reverse the phase 2 judgment and remand the case to the trial court 

for purposes of such a reassessment. 

During oral argument, after expressing our concerns about the viability of 

the phase 2 judgment since it was issued before the trial court had the benefit of our 

PacifiCare I ruling, we asked counsel for both sides if any part of the phase 2 trial result 

could be salvaged. After considering both parties’ responses along with their briefing, 

we conclude the answer to that question is no.
4

Although both parties argue their current appeals are not moot as a 

consequence of PacifiCare I, and that they raise disputed issues of independent 

significance, we decline to engage in a piecemeal analysis of complex issues that are 

intertwined both factually and analytically. The folly of doing so is demonstrated by 

PacifiCare’s briefing in this case. Although we stayed briefing in this appeal until after 

PacifiCare I became final, PacifiCare’s opening brief failed to address the impact of that

opinion on the phase 2 judgment. Instead, PacifiCare tackled that critical issue for the 

first time in its response to the Commissioner’s cross-appeal. PacifiCare then urged us to 

reconsider and reverse PacifiCare I because “‘with the benefit of a clarified record,’” we 

should now recognize how unfairly the regulations were applied in this case. 

We decline to revisit our decision in PacifiCare I. But the argument also 

makes clear that, in a case as complicated as this one, there is a danger in analyzing and 

deciding issues in isolation. Moreover, PacifiCare’s assertion that the Commissioner 

unfairly applied the regulations in this case is not the only new, factually-based argument 

proffered for the first time in this appeal. The parties disagree, for example, on whether 

PacifiCare has waived any arguments it failed to make below. That is an issue that 

should be addressed by the trial court in the first instance. 

Consequently, while both parties urge us to decide a number of disputed 

issues before we remand the case back to the trial court, we decline to do so. Ultimately, 

such an approach to this case would promote neither judicial economy nor analytical 

clarity. Indeed, that approach has caused many of the current problems.

We consequently reverse the judgment and remand the case to the trial 

court with instructions to reconsider its writ of mandate decision in light of PacifiCare I; 

to determine which, if any, additional or alternative arguments should be addressed in the 

first instance; and to address those arguments and make other changes as necessary in 
5

order to render a new decision either granting or denying a writ of mandate, in whole or 

in part.

2

 

FACTS

PacifiCare merged with UnitedHealth in 2005. Prior to that time, 

PacifiCare served primarily health maintenance organizations and seemingly had a 

reputation for excellent customer service. Although PacifiCare also served 120,000 

preferred provider organizations (PPOs), that was a relatively small segment of its 

business. 

The PacifiCare/UnitedHealth merger was approved by the then-Insurance 

Commissioner, John Garamendi, who at the time expressed concerns about 

UnitedHealth’s “claims-handling history and PacifiCare’s postmerger customer service 

presence in California.” The Commissioner’s approval was subject to specific 

conditions, memorialized in a document that required PacifiCare to adhere to certain

performance standards. 

According to the Decision, UnitedHealth pushed for cost savings following 

the merger, and PacifiCare soon laid off 600 employees, shut down a large portion of its 

California operation, and essentially outsourced much of its claims-handling processes to

UnitedHealth or third-party vendors. By April 2007, PacifiCare had reduced its 

workforce by 39%, eliminating 4,239 employees, including 2,202 California based 

positions. By June 2007—18 months after the merger—UnitedHealth reported it had 

surpassed its three-year cost cutting goal of $350 million, having achieved $950 million 

in aggregate savings. It attributed $365 million to ‘“efficiencies”’ or “cutbacks” in 

PacifiCare’s operations. 

2

In light of our ruling and remand, PacifiCare’s request for judicial notice is 

denied.
6

In October 2006, the California Department of Insurance (CDI) noted an

increase in complaints about PacifiCare’s claims handling involving PPOs, and it 

commenced an investigation into PacifiCare’s internal operations early in 2007. In May 

2007, CDI initiated a “targeted Market Conduct Examination” (MCE), which concluded 

PacifiCare had violated the Insurance Code nearly one million times. As a result of the 

MCE, the CDI recommended that PacifiCare be assessed $325 million in penalties. 

PacifiCare admitted to approximately 130,000 violations but disputed other CDI findings. 

Following a nearly four-year long administrative hearing, an administrative 

law judge concluded PacifiCare violated the Insurance Code 883,735 times and proposed 

to penalize PacifiCare in the aggregate amount of $11,518,350. The Commissioner 

rejected the administrative law judge’s proposed decision, ordered additional briefing, 

and issued his own decision (previously identified as the Decision). 

The Decision concluded that during the course of the CDI investigation, 

PacifiCare engaged in over 900,000 acts that violated the Unfair Insurance Practices Act 

(UIPA) (Ins. Code, § 790 et. seq.) Specifically, the Commissioner concluded the acts 

violated Insurance Code section 790.03, subdivision (h), which prohibits insurers from 

“knowingly committing or performing with such frequency as to indicate a general 

business practice” any of 16 enumerated unfair or deceptive acts. The Commissioner 

characterized the violations as “ranging from very serious to minimally serious 

violations.”

The aggregate penalty imposed by the Commissioner was $173,603,750. 

In the Decision, the Commissioner acknowledged the aggregate amount was the largest 

fine ever issued by the Department of Insurance, but explained “this is the first, and only, 

UIPA case ever litigated to either a proposed or final decision. All the other matters 

settled long before the litigation and penalty phase. This matter also has no parallel in 

either number of violations found or maximum potential penalty. No other insurer has 

violated UIPA or other provisions of the Insurance Code hundreds of thousands of times. 
7

And no other insurer has repeatedly misrepresented its business practices, failed to 

correct the root causes of its violations, or ignored its statutory obligations to the extent 

shown herein. In short, this litigation is unprecedented because the depth and breadth of 

PacifiCare’s unlawful actions are unprecedented.” (Fn. omitted) 

PacifiCare filed a petition for a writ of mandate, challenging the Decision 

on numerous grounds. Among PacifiCare’s many challenges to the various penalty 

categories were its contentions that three regulations relied upon by the Commissioner in 

assessing the penalties were facially invalid. Thus, PacifiCare’s pleading alleged a 

separate cause of action for declaratory relief, seeking a determination that each of the 

challenged regulations was invalid on its face because it was inconsistent with the 

language of a governing statute it was intended to interpret.

In an understandable effort to streamline the proceedings, the trial court and 

the parties agreed to bifurcate the issues and address the cause of action for declaratory 

relief in a “phase 1” trial, leaving all other issues pertinent to the writ of mandate to be 

addressed in a “phase 2” trial. 

At the conclusion of phase 1, the trial court agreed with PacifiCare that all 

three challenged regulations were facially invalid. The Commissioner sought to 

immediately appeal that decision. With that goal apparently in mind, the parties and the 

court agreed to the issuance of a preliminary injunction, enforcing the court’s 

determination that the regulations were invalid; this allowed the Commissioner to 

immediately appeal the substance of the court’s ruling.

The Commissioner then asked the trial court to stay the phase 2 

proceedings pending the outcome of the phase 1 appeal. For reasons that are not clearly 

explained in the record, PacifiCare opposed the stay. In any event, the trial court 

declined the Commissioner’s request for a stay, and the case proceeded to the phase 2 

writ of mandate trial with the parties seemingly operating under the assumption that this 

court would affirm the trial court’s determination that the three challenged regulations 
8

were invalid.

3

 The phase 1 ruling was treated as ‘“law of the case’ (although subject to 

appellate review)” for purposes of the phase 2 proceedings. 

At the conclusion of the phase 2 proceedings, the trial court issued a writ of 

mandate reversing all 19 categories of penalties. The trial court’s statement of decision 

concluded its determination that the three challenged regulations were invalid provided a 

sufficient basis, in and of itself, to justify the reversal of each of the 19 penalty categories

because the regulations “permeate the analyses and results in the Decision.”

The court then reversed 12 of the 19 penalty categories finding that one or 

more of the invalidated regulations had been improperly relied upon by the 

Commissioner in assessing it. The court reversed the other seven penalty categories 

based both on the regulations and on other perceived flaws in the Commissioner’s 

reasoning; of those seven, the trial court concluded no remand was necessary on six. The 

court then entered a judgment granting PacifiCare’s petition for writ of mandate. The 

judgment incorporated the court’s 43-page statement of decision in its entirety. 

Both parties promptly filed appeals challenging the phase 2 judgment. We 

stayed briefing on those appeals pending our decision in PacifiCare I. 

In September 2018, long after the conclusion of the phase 2 trial, we issued 

our opinion in PacifiCare I; in that opinion we reversed the trial court’s determination 

that the three regulations at issue were invalid. The trial court responded to our ruling by 

3 The Commissioner also asked this court to stay the trial court’s phase 2 

proceedings, in conjunction with its petition for a writ of supersedeas regarding the 

injunction itself. The Commissioner asserted, without further explanation, that “[t]he 

three regulations at issue were an integral part of the Commissioner’s legal analysis in his 

reaching his administrative decision. It is likely that the writ cause of action will be 

decided before the Court of Appeal reaches a decision on the merits of the 

Commissioner’s appeal. Should the Court of Appeal reverse, the parties will have to 

relitigate the entire administrative writ proceeding, causing the court and both parties to 

expend further significant resources and incur significant expense; this does not promote 

the principles of judicial economy.” Regrettably, in hindsight, we denied the request for 

a stay of the phase 2 trial court proceedings. 
9

scheduling a status conference to address the impact of PacifiCare I on its writ of 

mandate decision. At that conference, the parties convinced the trial court it had lost 

jurisdiction to take any action in light of the pending appeals.

We subsequently issued an order directing the parties to file informal letter 

briefs addressing whether our opinion in PacifiCare I mooted the appeal and cross-appeal 

from the phase 2 judgment. Both parties responded that the phase 2 appeals were not 

mooted by PacifiCare I because they sought review of distinct issues decided by the 

court in the phase 2 trial. Thus, in March 2019, we issued an order which lifted the stay 

on the phase 2 appeals and informed the parties that “[t]he effect of this court’s decision 

in [PacifiCare I] on the current appeal and cross-appeal will be considered in conjunction 

with the appeal and cross-appeal.”

After the parties completed their formal briefing of all issues related to the 

phase 2 trial, we again asked them to provide us with informal letter briefs to address 

several additional questions: (1) whether the trial court’s phase 1 ruling, which was 

reversed in PacifiCare I, affected the scope of arguments made by either party during the 

phase 2 trial; (2) whether the trial court’s phase 1 ruling caused either party to omit any 

argument it otherwise would have made during the phase 2 trial; and (3) whether the 

omission of any arguments by either party as a result of the trial court’s phase 1 ruling 

amounted to a waiver or forfeiture of that argument.4

DISCUSSION

The inescapable problem we face here is the fact, as discussed above, that 

the phase 2 trial which is the focus of this appeal proceeded before this court issued its 

4 We also directed the parties to address whether the trial court proceedings 

were automatically stayed pursuant to Code of Civil Procedure section 916,

subdivision (a), during the pendency of PacifiCare I. However, in light of our 

determination that the court’s phase 2 ruling must be reversed and remanded for 

reassessment based on PacifiCare I, we need not resolve that issue.
10

opinion in PacifiCare I. As a result, when the trial court issued its phase 2 judgment, it 

lacked the direction provided by PacifiCare I. This caused the trial court to rely on its 

own phase 1 rulings, which we later reversed, as it resolved the phase 2 issues. Try as we 

might, we find it impossible to salvage any portion of the phase 2 judgment which was 

the product of such a fundamentally flawed proceeding.

As the trial court acknowledged in its statement of decision (and hence in 

its judgment incorporating that decision), “the [challenged] regulations . . . permeate the 

analyses and results in the Decision.” We believe the Commissioner was prescient when 

he argued before the phase 2 trial commenced to our writ panel of this court that a 

discretionary stay of the phase 2 proceedings should be granted during the PacifiCare I

appeal because “[s]hould the Court of Appeal reverse, the parties will have to relitigate 

the entire administrative writ proceeding.”

In response to our September 29, 2021 order, PacifiCare acknowledged it 

intended to raise, for the first time on appeal, an argument that the Commissioner’s 

Decision must be reversed as to several penalty categories because the Commissioner 

“expressly failed to find deliberate violations during the administrative proceedings.” 

According to PacifiCare, this issue arises out of the fact that in PacifiCare I

we agreed with its contention that ““‘[k]nowingly comitt[ing]”’ an act implies the act was 

done deliberately.” (See PacifiCare I, supra, 27 Cal.App.5th at p. 417.) We disagree. 

Our opinion in PacifiCare I simply acknowledged a point made long ago by our Supreme 

Court in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d. 880, 891 (a litigant 

must ‘“demonstrate that the insurer acted deliberately”’), overruled on another ground in 

Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287. We plowed no

new ground there.

PacifiCare also seeks to argue, for the first time on appeal, that the 

challenged regulations were improperly applied in this case. This argument is distinct 

from the regulatory challenges addressed in PacifiCare I which were facial only. As we 
11

explained in PacifiCare I after PacifiCare had attempted to argue the same point, the 

claim that a regulation is facially invalid is a purely legal argument; it is entirely 

unrelated to how the regulation may have been applied. (PacifiCare I, supra, 

27 Cal.App.5th at p. 403, fn. 6.) An “as applied” argument must be based on the facts of 

an individual case.

5

 As we have repeatedly emphasized, PacifiCare I addressed only 

facial challenges to the contested regulations.

It is well established that factual arguments such as these cannot be raised 

in the appellate court in the first instance. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 

1316 [“It is a firmly entrenched principle of appellate practice that litigants must adhere 

to the theory on which a case was tried. Stated otherwise, a litigant may not change his 

or her position on appeal and assert a new theory. To permit this change in strategy 

would be unfair to the trial court and the opposing litigant”]; Mattco Forge, Inc. v. Arthur 

Young & Co. (1997) 52 Cal.App.4th 820, 847.)

If PacifiCare wants to make those arguments, a remand will provide its 

only opportunity to do so. Having said that, we are not mandating that the trial court 

entertain all of these new arguments. In response to our September 29, 2021 order, the 

Commissioner argued that PacifiCare was explicitly warned that it was required to make 

any and all arguments during the first writ of mandate trial, and thus that it has waived 

any arguments it failed to make. We leave it to the trial court to sort out that issue on 

remand; we express no opinion on the point. 

5

In a related argument, PacifiCare asks us to conclude the accumulated 

penalties assessed by the Commissioner in this case amounted to a violation of “Due 

Process and Excessive Fines Clauses.” While PacifiCare did raise this point in the trial 

court, the court concluded it was unnecessary to address the issue because its invalidation 

of the regulations meant “the Commissioner’s previous focus on ‘single acts’ will not be 

repeated on remand.” PacifiCare now asks us to tackle the issue in the first instance 

because the posture of the case has changed in light of PacifiCare I. We decline to do so 

since we cannot know the impact of PacifiCare I on its analysis until the trial court has 

the opportunity to reassess its writ of mandate decision in light of that opinion. 
12

Finally, the parties argue there are other legal issues we might address prior

to remanding the case. We decline to do so. As PacifiCare reminds us, this is a factually 

complicated case, with multiple intertwined issues. Analyzing some of those issues in 

isolation, while remanding others to the trial court where they may be further developed

or refined, could have unintended consequences and add layers of complexity to an

already complicated case. We are convinced the better course is to remand the case as a 

whole.

On remand, we leave it to the trial court to decide which, if any, aspects of 

the original writ of mandate judgment it wants to reassess. We place no constraints on 

the trial court’s ability, aided by the parties, to produce an entirely new judgment. This is 

a do over.6

We will end with this.

Code of Civil Procedure section 1094.5 governs judicial review of 

adjudicatory decisions by administrative agencies. (Young v. City of Coronado (2017) 

10 Cal.App.5th 408, 418.) The review may include questions about the agency’s 

“jurisdiction” to proceed, “whether there was a fair trial,” and “whether there was any 

prejudicial abuse of discretion.” (§ 1094.5, subd. (b).) An abuse of discretion is 

established if the administrative agency has failed to proceed “in the manner required by 

law, [if] the [agency’s] order or decision is not supported by the findings, or [if] the 

findings are not supported by the evidence.” (Ibid.)

In cases where the administrative decision affects “vested, fundamental 

rights, . . . and particularly the right to practice one’s trade or profession” (Bixby v. 

6

It is evident to us that the trial court’s task on remand will be difficult, even 

without adding a layer of appellate analysis into the mix. The 19 penalty categories are 

each affected, to a greater or lesser extent, by PacifiCare I, and thus each will have to be 

reevaluated. We observe that the Commissioner’s Decision provides a useful “summary 

of issues,” which lists the categories in the order they are addressed in the Decision and 

briefly describes each one. Adhering to both the order and language of that list may 

streamline the process.
13

Pierno (1971) 4 Cal.3d. 130, 143), the trial court must accord a presumption of 

correctness to the agency’s findings as it exercises independent judgment about whether 

those findings are supported by the weight of the evidence. (Fukuda v. City of Angels

(1999) 20 Cal.4th 805, 817.) In all other cases, including this one, the court conducts a 

substantial evidence review. (Code Civ. Proc., § 1094.5, subd. (c).)

“‘In substantial evidence review, the reviewing court defers to the factual 

findings made below. It does not weigh the evidence presented by both parties to 

determine whose position is favored by a preponderance. Instead, it determines whether 

the evidence the prevailing party presented was substantial—or, as it is often put, whether 

any rational finder of fact could have made the finding that was made below. If so, the 

decision must stand.’” (Coastal Environmental Rights Foundation v. California Regional 

Water Quality Control Bd. (2017) 12 Cal.App.5th 178, 187-188.)

Although the trial court here acknowledged in its statement of decision that 

it was bound by the substantial evidence test in reviewing the Commissioner’s Decision, 

the details of its analysis suggest it did not always adhere to that standard. For example,

in evaluating whether the evidence supports the Commissioner’s finding that PacifiCare 

failed to maintain certificates of credible coverage (COCC),7the court concluded the 

evidence was insufficient because a particular exhibit cited by page number in the 

Decision was insufficient, standing alone, to establish the number of violations found by 

the Commissioner. The court then noted “there is no reporter’s transcript reference to 

support the Commissioner’s finding that PacifiCare ‘admits to 1,799 instances where the 

insurer failed to maintain a COCC.’” 

In so ruling, the court seemed to suggest it was the Commissioner’s burden 

to cite sufficient supporting evidence for each of his findings in his Decision, and that his 

7 This is the first penalty category addressed in the Decision, and the seventh 

category addressed in the court’s statement of decision.
14

failure to do so was grounds to reverse his finding. Not so. The court is obliged to

presume the evidence in the administrative record supports the finding; the burden is on 

PacifiCare, the party challenging the finding, to demonstrate that the evidence in the 

record is insufficient to support it. “‘A party who challenges the sufficiency of the 

evidence to support a particular finding must summarize the evidence on that point, 

favorable and unfavorable, and show how and why it is insufficient. [Citation.]’

[Citation.] ‘[W]hen an appellant urges the insufficiency of the evidence to support the 

findings it is his duty to set forth a fair and adequate statement of the evidence which is 

claimed to be insufficient. He cannot shift this burden onto respondent, nor is a 

reviewing court required to undertake an independent examination of the record when 

appellant has shirked his responsibility in this respect.’” (Huong Que, Inc. v. Luu (2007) 

150 Cal.App.4th 400, 409; Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 

284-285.) 

In a case such as this, with such an enormous record, the appellant’s burden 

may be daunting. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 

278, 290 [the appellant’s burden to provide a fair summary of the evidence “grows with 

the complexity of the record”].) Nonetheless, that burden remains.

DISPOSITION

The judgment is reversed, and the case is remanded with instructions to 

(1) reconsider its writ of mandate decision in light of PacifiCare I; (2) determine which, 

if any, additional or alternative arguments should be addressed in the first instance; and 

(3) address those arguments and issue a new decision either granting or denying a writ of 
15

mandate, in whole or in part. In the interest of justice, the parties shall each bear their 

own costs on appeal. 

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

ZELON, J.*

 *Retired Justice of the Court of Appeal, Second Appellate District, assigned by the 

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