Filed 5 / 3 / 22 Pacificare Life & He alth 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

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.
RICAR D O LARA, as Insurance Commissioner , etc.,

Defendant and Appellant. G05 6160 (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 App el lant ’s request for judicial notice denied.

Gibson, Dunn & Crutcher, Daniel M. Kolkey, Theodore J. Boutrous, Jr.,
Jose p h 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, Deput y Attorney s General ; Strumwasser & Woocher , Michael J. Strumwasser, Bryce A. Gee , and Caroline Chiapetti for Defendant and Appellan t.

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 Gausew itz 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 Plaintif f 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 be a st.”

It began when PacifiCare Life and Health Insurance Co mpany (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 penalt y wa s not a sing le assessment ; rather it was the sum of
pena lties assessed for 19 distinct categories of wrongdoing, each involving anywhere
from 2 to 462, 8 05 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 d ecision (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 categor ies included arguments that three regulations relied upon by the Commissioner throughout the Decision were facially invalid, the court and parties agreed to bifu r cate the case to first
address th ose issues in a “ phase 1 ” proceeding.

A fter t he trial court ruled that all three regulations were facially invalid , the
court and the parties cooperate d to creat e appellate jurisdiction for what was effectively an interim appeal of that ruling . While th at appeal was pending, both the trial court and
this court declined to stay further proceedings

.

Ph ase 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, t he 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
invalid at ed the regulations.

A fter 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 revers ed the tria l 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 p urposes of such a reassessment.

During oral argument, after expressing our concerns about the viability of the phas e 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 brief ing, we conclude the answer to that question is no.4 Al though both parties argue their current appeals are not moot as a
consequence of PacifiCare I , and that they raise disputed issues of independent significan ce, we decline to engage in a piecemeal analysis of complex issues that are
inter twined both factually and analytically. The folly of doing so is demonstra ted by
PacifiCare ’ s briefing in this case. Although we stayed briefing in this appeal until after PacifiCare I beca me final, PacifiCare ’ s opening brief fail ed to address the impact of that opinion on the phase 2 jud gment. Instead, PacifiCare tackled that critical issue for the first time in its response to the Commissioner ’ s cross

- appeal

. PacifiCare then u rge d 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.

W e 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 i solat ion

. Moreover, PacifiCare ’ s assertion that the Commissioner unfairly applied the regulations in this case i s not the only new, factually

- based argument proffered for t he first time in this appeal. T he parties disagree , for example, on whether
PacifiCare has waived any arguments it failed to make below. That is an issue that
should be ad dressed 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, w e decline to do so . Ultimately,
such a n approach to this case w ould promote neither judicial econom y n or analytical clarity. Indeed, that approach has caused many of the current problems.

W e 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 a rguments should be add ressed in the
first instance ; and to address those arguments and make other changes as necessary in5

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 h ealth m aintenance o rganizations 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.” Th e Commission er ’ s approval was subject to specific conditions, memorializ ed 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 t o Uni tedHealth or third

- party vendors. By April 2007, PacifiCare had reduced its workforce by 39%, eliminating 4,239 employees, including 2,202 California based positions

. B y June 2007

— 18 months after the merger

— UnitedHealth reported it had surpassed its thre e

- 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 I n October 2006, the California Department of Insurance (CDI) not e d an increase in complaints about PacifiCare ’ s claims handling involving PPOs , a nd 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
Pac ifiCare had violated the Insurance Code nearly one million times. As a result of the MCE, t he CDI recommended that PacifiCare be assessed $3 2 5 million in penalties.
PacifiCare admitted to approximately 130,00 0 violations but disputed other CDI findings.

Following a nearly four

- year long administrative hearing, an a dministrative
l aw j udge concluded PacifiCare violated the Insurance Code 883,735 times and proposed to penalize PacifiCare in the aggregate amount of $11,51 8 ,350. The Commissioner rejected the administrative law judge ’ s proposed decision, ordered additional briefing,
and issued his own d ecision (previously identified as the Decision)

.

The Decision concluded that during the course of the CDI invest igation , PacifiCare engaged in over 90 0 ,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 seri ous violations. ” The aggregate penalty imposed by the Commissioner was $173,603,750. In the Decision, the Commissioner acknowledged the aggregate amount was the largest
f ine ever issued by the Department of Insurance, but explained “ this is the first, a nd 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 ot her 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 i g n ored its statutor y obligations to the extent
shown herein. In short, this litigation is unprecedented because the depth and breadth of
Paci fi Care ’ 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 w ere its contention s 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 languag e 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

. T he Commissioner sought t o immediately appeal that decision

. With that goal apparently in mind, t he 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
imme diately appeal the substance of the court ’ s ruling.

The Commissioner then asked th e trial court to stay the phase 2 proceedings pending the outcome of the phase 1 appeal. F or 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 co urt’s determination that the three challenged regulations8

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.

A t the conclusion of the phase 2 proceeding s , the trial court issued a writ of mandate reversing all 19 categories of penalties

. T he 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. ”

T he court then reversed 12 of the 19 penalty categories finding that one or
more of the invali dated 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.

B oth 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 r evers ed the tri al court ’ s de termination
that the three r eg ulations 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 reg ulations 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 Commiss ioner’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 prom ote 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 t o address the impact of PacifiCare I on its writ of
mandate decision. At that conference, t he parties convinc ed the trial court it had lost jurisdiction to take any action in light of the pending appeals.

We subsequently issued an order direc ting 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

moot ed by PacifiCare I because they sought review of di stinct issues decided by the court in the phase 2 trial

. Thus, in March 2019, we issued an order which lift ed the stay
on the phase 2 appeals and inform ed the parties that “ [t]he effect of this court ’ s decision in [ PacifiCare I

] on the curre n t 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 t he phase 2 trial, we a gain a sked 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 pursua nt to Code of Civil Procedure section 916, subdivision (a), during the pendency of PacifiCare I

. However, in light of our de termination 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, i t 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 th at decision ), “ the [challenged] regulations

. . . permeate the analyses and r esults 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 beca use “ [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 argumen t 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 wit h its contention that “ “‘ [k]nowingly comitt[ing] ” ’ an act implies th e act was done deliberately. ” (See PacifiCare I, supra, 27 Cal.App.5th at p. 417 .) We disagree. Our opinion in PacifiCare I simply acknowledge d 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 we11

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 f actual argument s such as these can not 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 l itigant 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.)

I f P acifiCare wants to make those arguments , a remand will provide its only opportunity to do so

. Having said that, we are not mandat ing 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

r emand ; 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 Clause s.” While PacifiCare did rais e 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 t ackle 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 remin ds us, th is is a factually complicated case, with multiple intertwined issues. A nalyz ing some of th ose issues in
isolation , while remanding others to the trial court where they may be further devel oped or refined, could have unintended consequences and add layers of complexity to an already complicated case. We are convinced t he better course is to remand the case as a whole.
O n remand, w e leave it to the trial court to decide which, if any, aspects of the original writ of mandate judgment it wants to reassess

. We p lace no constraints on
the trial court ’ s abili ty , aided by the parties, to produce a n entirely new judgment. This is
a do over. 6
We will end with this.

C ode 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 m a y 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 [agen cy ’ 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 right s , . . . 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 describ es 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

correctne s s to the agency ’ s findings as it exer cises i ndependent judgment about whether those findings are supported by the weight of the evidence. ( Fukuda v. City of Angels ( 1999) 20 Cal.4th 805, 817.) I n 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 substantia l

— 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 review ing 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 Commi s sioner ’ s finding that PacifiCare
failed to maintain c ertificates of c redible c overage (COCC), 7 the court concluded the evidence was insufficient because a particular e xhib it cited by p age 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 s eemed to s uggest it was the Commissioner ’ s burden

to cite sufficient supporting evidence for each of his findings in his Decisi on , 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 t hat 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 insuffi cient

. [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 bur den 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 prov ide 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 denyin g a writ of15

mandate, in whole or in part. In the interest of justice, t he 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.