FRANCO v.ATHENS DISPOSAL COMPANY, INC













Filed 3/10/09





CERTIFIED FOR PUBLICATION





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

EDIXON FRANCO, Plaintiff and Appellant, v. ATHENS DISPOSAL COMPANY, INC., Defendant and Respondent.

B203317 (Los Angeles County Super. Ct. No. BC369201)

STORY CONTINUE FROM PART I….


Athens contends that Discover Bank and Gentry are not applicable here because meal and rest periods are waivable statutory rights. Actually, in Discover Bank, the court expressed a lack of concern with waivability, noting that “plaintiff does not plead a [cause of action under the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.)] and so does not invoke its antiwaiver provision; nor does he seek recovery under any other California statute as to which a class action remedy is essential. . . . Rather, plaintiff contends that class action or arbitration waivers in consumer contracts, and in this particular contract, should be invalidated as unconscionable under California law.” (Discover Bank, supra, 36 Cal.4th at p. 160, citation and fn. omitted.)
Gentry, on the other hand, emphasized that overtime compensation is unwaivable. (See Gentry, supra, 42 Cal.4th at pp. 450, 455–457.) “‘Entitlement to overtime compensation . . . is mandated by statute and is based on an important public policy. . . . “The duty to pay overtime wages is a duty imposed by the state; it is not a matter left to the private discretion of the employer. . . . California courts have long recognized [that] wage and hours laws ‘concern not only the health and welfare of the workers themselves but also the public health and general welfare.’”’” (Id. at p. 456.) “[T]he statutory right to receive overtime pay embodied in section 1194 is unwaivable.” (Ibid.)
“We have not yet considered whether a class arbitration waiver would lead to a de facto waiver of statutory rights, or whether the ability to maintain a class action or arbitration is ‘necessary to enable an employee to vindicate . . . unwaivable rights in an arbitration forum.’ . . . We conclude that under some circumstances such a provision would lead to a de facto waiver and would impermissibly interfere with employees’ ability to vindicate unwaivable rights and to enforce the overtime laws.” (Gentry, supra, 42 Cal.4th at p. 457, citation omitted.)
Section 226.7, subdivision (a), requires employers to comply with the meal and rest period provisions of the Wage Order. That section appears in division 2 (“Employment Regulation and Supervision”, part 1 (“Compensation), chapter 1 (‘Payment of Wages”, article 1 (“General Occupations” of the Labor Code. Section 219, found in the same article as section 226.7, states: “[N]o provision of this article can in any way be contravened or set aside by a private agreement, whether written, oral, or implied.”
As the Ninth Circuit has explained: “[T]he [California] Labor Code provisions at issue, [primarily sections 226.7 and 512,] as well as the wage order, are designed to protect individual employees. Indeed, meal period provisions address some of ‘the most basic demands of an employee’s health and welfare.’ . . . Moreover, the text of the wage order and the statutory provisions . . . make clear that the right to meal periods is a generally applicable labor standard that is not subject to waiver by agreement. As stated plainly in § 219, the right cannot ‘in any way be contravened or set aside by a private agreement, whether written, oral or implied.’” (Valles v. Ivy Hill Corp. (9th Cir. 2005) 410 F.3d 1071, 1081, citation omitted, italics added.) Thus, to the extent Gentry may be limited to unwaivable statutory rights, it applies here because, under section 219, the meal and rest period laws cannot be waived.
2. The Gentry Factors
Gentry pointed out that “although ‘[c]lass action and arbitration waivers are not, in the abstract, exculpatory clauses,’ . . . such a waiver can be exculpatory in practical terms because it can make it very difficult for those injured by unlawful conduct to pursue a legal remedy. [The plaintiff] argues persuasively that class action waivers in wage and hour cases and overtime cases would have, at least frequently if not invariably, [an] exculpatory effect for several reasons, and would therefore undermine the enforcement of the statutory right to overtime pay.
“First, individual awards in wage and hour cases tend to be modest. In addition to the fact that litigation over minimum wage by definition involves the lowest-wage workers, overtime litigation also usually involves workers at the lower end of the pay scale, since professional, executive, and administrative employees are generally exempt from overtime statutes and regulations.” (Gentry, supra, 42 Cal.4th at pp. 457–458, citation omitted, italics added.)
Franco was a trash truck driver. When he left Athens in May 2006, he was earning $15.50 an hour. His total damages for the meal and rest period violations, as alleged, come to approximately $7,750, plus $2,500 in civil penalties — an amount too high for a small claims action (Code Civ. Proc., § 116.221) and too low, as a practical matter, to be pursued as an individual claim, either in court or through arbitration. And the possibility of an award of attorney fees would not provide a sufficient incentive for an attorney to take a case like Franco’s as an individual matter. (See, e.g., Lab. Code, § 1194, subd. (a) [authorizing award of attorney fees], 218.5 [same], 2699, subd. (g)(1) [same].) “Even assuming that such attorney fees were equally available in arbitration, employees and their attorneys must weigh the typically modest recovery, and the typically modest means of the employees bringing . . . lawsuits, with the risk of not prevailing and being saddled with the substantial costs of paying their own attorneys. Moreover, the award of ‘reasonable’ fees and costs is at the discretion of the trial court. Assuming that the arbitrator had similar discretion, there is still a risk that even a prevailing plaintiff/employee may be undercompensated for such expenses.” (Gentry, supra, 42 Cal.4th at pp. 458–459.) Consequently, with respect to the amount of a plaintiff’s potential recovery, overtime cases such as Gentry are legally indistinguishable from meal and rest period cases. If anything, overtime cases have a higher value. And here, even if Franco’s overtime claim is included in the analysis — raising his total potential recovery to $26,500 — the class arbitration waiver would fare no better. (See id. at p. 458 [individual recovery of $37,000 provides insufficient incentive to obviate need for class action].)
Second, “a current employee who individually sues his or her employer is at greater risk of retaliation. We have recognized that retaining one’s employment while bringing formal legal action against one’s employer is not ‘a viable option for many employees.’ . . . The difficulty of suing a current employer is likely greater for employees further down on the corporate hierarchy.” (Gentry, supra, 42 Cal.4th at pp. 459–460, italics added.)
Of course, Franco is no longer working at Athens. But that simply strengthens his status as the representative in a class action or class arbitration because “it is ‘reasonably presumed’ potential class members still employed by [the] employer ‘might be unwilling to sue individually or join a suit for fear of retaliation at their jobs.’” (Id. at p. 460, italics added.) “‘[S]ince here a number of putative members [of the class] are current employees, the concern for possible employer reprisal action exists . . . .” (Ibid., italics added.) “[I]f individual joinder were required, ‘most, if not all, of the current employees will be hesitant to join.’” (Ibid., italics added.) As one court has noted, “‘“Although there is only plaintiff’s suggestion of intimidation in this instance, the nature of the economic dependency involved in the employment relationship is inherently inhibiting.”’” (Ibid., italics added.) “Federal courts have widely recognized that fear of retaliation for individual suits against an employer is a justification for class certification in the arena of employment litigation . . . .” (Ibid.)
Athens’s focus on the mere existence of its nonretaliation policy misses the mark. The pertinent question is whether a nonretaliation policy achieves its goal. Franco’s declaration stated he “did not feel secure enough to complain about anything [he] may have felt was wrong . . . . [He] felt that if [he] complained about anything [he]would be fired.” According to Athens’s evidence, employees felt comfortable going to the payroll department to report a calculation error in a paycheck or a shortage in pay “for a certain day or week.” But the issue here is how the company would react to an internal grievance asserting the violations raised in Franco’s civil complaint, namely, the wholesale disregard of the meal and rest period laws as to numerous employees over an extended period of time. As recognized in an analogous context: “[S]tatistics are supportive of [the] position that retaliation against employees for asserting statutory rights under the Labor Code is widespread. Given that retaliation would cause immediate disruption of the employee’s life and economic injury, and given that the outcome of the [Labor Commissioner’s] complaint process is uncertain, we do not believe the existence of an antiretaliation statute and an administrative complaint process undermines [the plaintiff’s] point that fear of retaliation will often deter employees from individually suing their employers.” (Gentry, supra, 42 Cal.4th at p. 461.) The same fear and deterrence exist despite an employer’s voluntarily adopted nonretaliation policy.
Third, “some individual employees may not sue because they are unaware that their legal rights have been violated. . . . [I]t may often be the case that the illegal employer conduct escapes the attention of employees.” (Gentry, supra, 42 Cal.4th at p. 461.) Athens may have taken steps, including bilingual efforts, to implement the meal and rest period laws, but Franco — who appears to be more proficient in Spanish than English — did not know there was a remedy for a missed meal or rest period. “Some workers, particularly [those] with limited English language skills, may be unfamiliar with [labor] laws.” (Ibid.) In a class proceeding, current and former employees would receive written notice of their rights.
Last, “‘class actions may be needed to assure the effective enforcement of statutory policies even though some claims are large enough to provide an incentive for individual action. While employees may succeed under favorable circumstances in recovering [for] unpaid [missed breaks] through a lawsuit or a wage claim filed with the Labor Commissioner, a class action may still be justified if these alternatives offer no more than the prospect of “random and fragmentary enforcement” of the employer’s legal obligation[s] . . . .’ . . . ‘By preventing “a failure of justice in our judicial system” . . . , the class action not only benefits the individual litigant but serves the public interest in the enforcement of legal rights and statutory sanctions.’ . . . In other words, absent effective enforcement, the employer’s cost of paying occasional judgments and fines may be significantly outweighed by the cost savings of not paying [for missed meal and rest periods].’” (Gentry, supra, 42 Cal.4th at p. 462, bracketed material added.) As stated in one of Franco’s three attorney declarations, “preventing class proceedings from occurring will only allow this and other employers to pay the claims of a few employees, if any, and continue violating the Labor Code unabated.”
The Gentry court summarized: “[W]hen it is alleged that an employer has systematically denied proper overtime pay to a class of employees and a class action is requested notwithstanding an arbitration agreement that contains a class arbitration waiver, the trial court must consider the factors discussed above: the modest size of the potential individual recovery, the potential for retaliation against members of the class, the fact that absent members of the class may be ill informed about their rights, and other real world obstacles to the vindication of class members’ right to overtime pay through individual arbitration. If it concludes, based on these factors, that a class arbitration is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration, and finds that the disallowance of the class action will likely lead to a less comprehensive enforcement of overtime laws for the employees alleged to be affected by the employer’s violations, it must invalidate the class arbitration waiver to ensure that these employees can ‘vindicate [their] unwaivable rights in an arbitration forum.’ . . . The kind of inquiry a trial court must make is similar to the one it already makes to determine whether class actions are appropriate. ‘[T]rial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action. . . .’ . . . Class arbitration must still also meet the ‘community of interest’ requirement for all class actions, consisting of three factors: ‘(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.’” (Gentry, supra, 42 Cal.4th at pp. 463–464, citations and fn. omitted, italics added.) As one treatise has noted: “Attempts by employers to bar class actions of wage and hour claims through private arbitration agreements are less likely to be successful [after Gentry].” (1 Advising Cal. Employers and Employees (Cont.Ed.Bar 2008) § 5.93, p. 470.)
Here, the complaint alleges that Athens systematically denied meal and rest periods to a class of employees; all drivers were subjected to identical violations; and drivers were not paid an hour of additional compensation per workday for the meal and rest periods they missed. As in Gentry, the size of the potential individual recovery is small, the possibility of retaliation against an employee who files an individual suit exists, and absent members of the class may be ill informed about their rights.
In the trial court, Athens submitted evidence to the effect that it does not violate the law. For example, the company president commented, “Athens’ policy is to comply with the requirements of the [Wage Order] that are applicable to its drivers, and the company has undertaken a number of practices to ensure compliance with this policy.” But this type of evidence goes to the merits of Franco’s claims and is not to be considered on a petition to compel arbitration that involves a challenge to a class arbitration waiver. (See Gentry, supra, 42 Cal.4th at p. 463; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 439–441; Graphic Arts Internat. Union v. Oakland Nat. Engraving Co. (1986) 185 Cal.App.3d 775, 776, 780 & fn. 6.)[1]
We conclude the record does not support the trial court’s determination that the employees’ claims would be so individualized as to render class arbitration treatment significantly less effective than individual arbitrations. At this early stage in the litigation, we know that Athens uses a computer and an electronic timecard system to keep track of its employees’ work hours. By law, an employer must maintain time records showing an employee’s (1) “total daily hours worked” and (2) meal periods, unless “operations cease” during meals. (Wage Order, § 7(A)(3).) Further, Athens allegedly engaged in a systematic course of illegal payroll practices and policies in violation of the Labor Code and subjected all of its hourly employees to the same unlawful conduct. As a result, common questions of law and fact predominate over individualized issues.
Here, class treatment would be more practical than individual actions, regardless of whether the claims are adjudicated through arbitration or in the trial court. (See Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1201, 1204–1208 [reversing trial court’s denial of class certification in meal and rest period case, concluding that requirements of commonality, ascertainability, and superiority were all satisfied].) As stated in Bufil: “The trial court made a passing, perfunctory reference to superiority in its order denying class certification [of the meal and rest period claims], finding that plaintiffs did not establish that the class action is a superior method for resolving the litigation. Courts regularly certify class actions to resolve wage and hour claims. . . . In this arena the class action mechanism allows claims of many individuals to be resolved at the same time, eliminates the possibility of repetitious litigation and affords small claimants with a method of obtaining redress for claims which otherwise would be too insignificant to warrant individual litigation. . . . Moreover, the issues slated for contest are primarily common issues involving common evidence. It would not be efficient or fair to relegate these complaints to multiple trials.” (Id. at p. 1208, citations omitted.)
C. Franco’s Capacity as a Private Attorney General
If the sole problem with Athens’s arbitration agreement were the class arbitration waiver, we would direct the trial court to strike the waiver and order the case to arbitration. (See Gentry, supra, 42 Cal.4th at p. 466.) Shortly after appointment, the arbitrator, applying AAA rules, would decide whether the dispute should proceed as a class arbitration. But the class arbitration waiver is not the only significant problem with the parties’ agreement.
“If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced. . . . [¶] . . . [M]ultiple defects indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 124 [equating “multiple” defects with two unlawful provisions].)
The parties’ arbitration agreement not only contains a class arbitration waiver but also prohibits an employee from acting as a “private attorney general.” The PAGA authorizes an aggrieved employee — here, Franco — to recover civil penalties “on behalf of himself . . . and other current or former employees.” (§ 2699, subd. (a).) The agreement does state, however, that employees may recover remedies due them “individually.” We interpret this to mean that, under the PAGA, Franco could recover civil penalties for the violation of his rights. But the PAGA also authorizes Franco to collect civil penalties on behalf of other current and former employees. The arbitration agreement expressly prohibits this. Accordingly, if the class arbitration waiver were stricken, the case were sent to arbitration, and the arbitrator certified the case as a class, the arbitration agreement would preclude an award of civil penalties on behalf of employees other than Franco.
The Legislature has made clear that an action under the PAGA is in the nature of an enforcement action, with the aggrieved employee acting as a private attorney general to collect penalties from employers who violate labor laws. Such an action is fundamentally a law enforcement action designed to protect the public and penalize the employer for past illegal conduct. Restitution is not the primary object of a PAGA action, as it is in most class actions. Before the PAGA was enacted, an employee could recover damages, reinstatement, and other appropriate relief but could not collect civil penalties. The Labor and Workforce Development Agency (LWDA) collected them. The PAGA changed that. (See 1 Advising Cal. Employers and Employees, supra, §§ 5.97–5.100, pp. 472.2–474 [discussing PAGA].)
Our colleagues in Division Three have observed: “The PAG Act provides in relevant part at section 2699, subdivision (a): ‘Notwithstanding any other provision of law, any provision of [the Labor Code] that provides for a civil penalty to be assessed and collected by the [LWDA] or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees . . . .’ . . .
“. . . [T]he PAG Act empowers or deputizes an aggrieved employee to sue for civil penalties ‘on behalf of himself or herself and other current or former employees’ (§ 2699, subd. (a)), as an alternative to enforcement by the LWDA.
“The Legislature declared its intent as follows: ‘(c) Staffing levels for state labor law enforcement agencies have, in general, declined over the last decade and are likely to fail to keep up with the growth of the labor market in the future. [¶] (d) It is therefore in the public interest to provide that civil penalties for violations of the Labor Code may also be assessed and collected by aggrieved employees acting as private attorneys general, while also ensuring that state labor law enforcement agencies’ enforcement actions have primacy over any private enforcement efforts undertaken pursuant to this act.’ . . .
“The final bill analysis for the 2003 legislation states: ‘This bill allows employees to sue their employers for civil penalties for employment law violations. This bill is intended to augment the enforcement abilities of the Labor Commissioner by creating an alternative “private attorney general” system for labor law enforcement.’ . . .
“The final bill analysis explains: ‘Existing law authorizes the [LWDA] . . . to assess and collect civil penalties for violations of the Labor Code, where specified. [¶] Existing law authorizes the Attorney General and other public prosecutors to pursue misdemeanor charges against violators of specified provisions of the code. [¶] Existing law authorizes an individual employee to file a claim with the Labor Commissioner alleging that [the] employer has violated specified provisions of the code, and to sue the employer directly for damages, reinstatement, and other appropriate relief if the Commissioner declines to bring an action based on the employee’s complaint. [¶] Existing law further provides that any person acting for itself, its members, or the general public, may sue to enjoin any unlawful, unfair, or fraudulent business act or practice, and to recover restitution and disgorgement of any profits from the unlawful activity. [¶] This bill is entitled the “Labor Code Private Attorneys General Act of 2004,” and establishes an alternative “private attorney general” system for labor law enforcement that allows employees to pursue civil penalties for employment law violations.’” (Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 337–338, citations omitted, boldface added.) When a plaintiff employee recovers a civil penalty under the PAGA, 75 percent is distributed to the LWDA “and 25 percent to the aggrieved employees.” (§ 2699, subd. (i).) The PAGA defines “aggrieved employee” as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (§ 2699, subd. (c); see generally Chin et al., Cal. Practice Guide: Employment Litigation (2008) ¶¶ 17:760 to 17:835, pp. 17‑120 to17‑126 [discussing PAGA]; 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 324, pp. 416–418 [same].)
“The [PAGA] attempted to remedy the understaffing of California’s labor law enforcement agencies by granting employees the authority to bring civil actions against their employers for Labor Code violations. Fearing the state’s budget crisis [in 2003] would continue to prevent adequate Labor Code enforcement, the Act’s sponsors intended to guarantee ‘maximum compliance with state labor laws in the underground economy and to ensure an effective disincentive for employers to engage in unlawful and anticompetitive business practices.’ Thus, under the Act, employees supplement the LWDA as Labor Code enforcers by ‘deputizing’ employees in the role of private attorney generals.” (Review of Selected 2004 California Legislation, Chapter 221: A Necessary But Incomplete Revision of the Labor Code Private Attorneys General Act (2005) 36 McGeorge L.Rev. 877, 878–879, fns. omitted.) “In practice, an equilibrium between public and private enforcement actions will likely develop, leading to more thorough enforcement of the Labor Code and thereby the fulfillment of the Legislature’s purpose in enacting the [PAGA].” (Id. at p. 894.) “[The] PAGA [is] a powerful tool for aggrieved employees.” (Schloss & Cohorn, Assessing the Amended Labor Code Private Attorneys General Act (Feb. 2006) 28 L.A. Law. 13, 17.)[2]
In addressing the amount of the civil penalty for a Labor Code violation, the PAGA states: “For all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions, as follows: [¶] . . . [¶] . . . If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.” (§ 2699, subd. (f)(2), italics added.) “Person” means “any person, association, organization, partnership, business trust, limited liability company, or corporation.” (§ 18; see § 2699, subd. (b).)
Consequently, the question arises as to whether the additional hour of compensation for missed meal and rest periods is “a civil penalty . . . specifically provided” in section 226.7, which was enacted in 2000. (See 11 West’s Cal. Legis. Service (2000) ch. 867, § 7, p. 4945.) If so, the additional hour of pay may qualify as the civil penalty imposed under the PAGA. But our Supreme Court has held that the extra hour of compensation is a wage or premium pay, not a penalty. (See Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at pp. 1099, 1102–1111.) “[A]n employee is entitled to the additional hour of pay immediately upon being forced to miss a rest or meal period. In that way, a payment owed pursuant to section 226.7 is akin to an employee’s immediate entitlement to payment of wages or for overtime. . . . By contrast, Labor Code provisions imposing penalties state that employers are ‘subject to’ penalties and the employee or Labor Commissioner must first take some action to enforce them. The right to a penalty, unlike section 226.7 pay, does not vest until someone has taken action to enforce it.” (Murphy, at p. 1108.)
That brings us, finally, to the penalties set forth in the Wage Order: “(A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of:
“(1) Initial Violation — $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages.
“(2) Subsequent Violations — $100.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages.
“(3) The affected employee shall receive payment of all wages recovered.” (Wage Order, § 20(A)(1)–(3).)
Accordingly, the Wage Order specifically provides civil penalties for violations of section 226.7. In fact, those penalties became operative in 2001, three years before the PAGA went into effect. (See Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at pp. 1105–1106 & fn. 8; 13 West’s Cal. Legis. Service (2003) ch. 906, § 2, pp. 5178–5180; Cal. Const., art. IV, § 8, subd. (c)(1); History, Cal. Code Regs., tit. 8, § 11090, foll. subd. 22; compare Cal. Code Regs., tit. 8, § 11090, subd. 20, Register 97, No. 32 (Aug. 8, 1997) with id., tit. 8, § 11090, subd. 20, Register 2002, No. 19 (May 10, 2002.)
Here, under the arbitration agreement, Athens sought to nullify the PAGA and preclude Franco from seeking civil penalties on behalf of other current and former employees, that is, from performing the core function of a private attorney general. Yet, by prohibiting enforcement of the PAGA, the arbitration agreement impedes Gentry’s goal of “comprehensive[ly] enforc[ing]” a statutory scheme through the imposition of “statutory sanctions” and “fines.” (Gentry, supra, 42 Cal.4th at pp. 463, 462.) Thus, the prohibition of private attorneys general is unconscionable.
Because the arbitration agreement contains a class arbitration waiver and also precludes Franco from seeking civil penalties on behalf of other employees, contrary to the PAGA, we conclude that the agreement as a whole is tainted with illegality and is unenforceable. (See Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at pp. 1224–125.) Athens’s petition to compel arbitration should therefore be denied, and this case should proceed in a court of law.
III
DISPOSITION
The order granting the petition to compel arbitration is reversed, and the trial court is directed to place this case on the civil active list. Plaintiff is entitled to costs on appeal.
CERTIFIED FOR PUBLICATION.

MALLANO, P. J.
We concur:

ROTHSCHILD, J.

BAUER, J.*



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