Jones v. County of LA Civil Serv. Com

Filed 8/2/07 Jones v. County of LA Civil Serv. Com. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Dzintra Janavs, Judge. Affirmed.

Posner & Rosen, Michael Posner and Jason C. Marsili for Plaintiff and Appellant.

No appearance on behalf of Defendant.

Raymond G. Fortner, Jr., County Counsel and Manuel A. Valenzuela, Jr., Deputy County Counsel for Real Party In Interest and Respondent.

Real party in interest and respondent Los Angeles County Department of Health Services (the Department) dismissed plaintiff and appellant Victor Jones (plaintiff) from his employment as a pulmonary physiology technician at a county health facility following a verbal altercation between plaintiff and a female co-worker. Defendant Los Angeles County Civil Service Commission (the Commission) sustained the Departments charges that petitioner had verbally and physically threatened the co-worker, in violation of the Departments guidelines for employee evaluation and discipline, as well as a written policy prohibiting workplace threats and acts of violence. The Commission initially rejected the hearing officers recommended penalty of discharge and issued a proposed decision imposing a 30-day suspension without pay; however, in its final decision, the Commission sustained plaintiffs discharge.

Plaintiff petitioned for administrative mandamus to compel the Department to reinstate his employment, claiming there was insufficient evidence to support the factual findings of the Commission; the Commissions decision sustaining his discharge was improper because it was issued after the hearing officer who conducted the administrative hearing in plaintiffs case became the Commissions Executive Officer; and the penalty of discharge was an abuse of discretion. We affirm the judgment. Substantial evidence supports the factual findings that were the basis for plaintiffs discipline, and the dismissal was not an abuse of discretion.

BACKGROUND

A. Factual Background

At the time of his discharge, plaintiff was employed by the Department as a lead pulmonary physiology technician III at the Los Angeles County University of Southern California Healthcare Network Medical Center (LAC + USC Medical Center). He had worked for the Department for approximately 17 years.

On November 19, 2003, plaintiff threatened a co-worker, Lupe De La Fuente, in the presence of two other co-workers. A supervisor named Maria Carmen Quezada responded to the incident. Plaintiff was suspended on November 20, 2003, pending an investigation of the incident. By letter dated May 27, 2004, the Department advised plaintiff that it had completed its investigation and that it intended to discharge him from employment. The letter stated that plaintiff would have the opportunity to meet with management in order to respond to the proposed discipline, and plaintiff subsequently exercised his right to do so.

In a letter dated July 23, 2004, the Department discharged plaintiff from his employment. The letter stated that the bases for plaintiffs discharge was violation of section 5060, subsection C, misconduct items number 2 and 18 of the Departments Employee Evaluation and Discipline Guidelines (the Discipline Guidelines) and violation of the Departments Threat Management Zero Tolerance Policy (Policy No. 792) regarding workplace threats and acts of violence.

Section 5060 of the Discipline Guidelines lists examples of causes for disciplinary action. Subsection C, misconduct item number two, of section 5060 of the Discipline Guidelines describes the following conduct as a cause for disciplinary action: Threatening bodily harm in person or by other means (e.g., telephone, fax, computer, electronic mail, written note or correspondence, etc.) to another, attempting to cause injury to another. Includes threats of violence directed at any employee, patient, member of the public, or a County facility. Suspension and discharge are listed as the range of discipline that may be imposed for such conduct.

Section 5060, subsection C, misconduct number 18, of the Discipline Guidelines cites [a]buse of supervisory or management authority, or conduct unbecoming a position of authority as a cause for disciplinary action, and lists suspension and discharge as the range of discipline that may be imposed for such conduct.

Policy No. 792 states in part:

Any threats, threatening behavior, or acts of violence against employees, patients, visitors or other individuals by anyone on County property are prohibited . . . . Examples of such behavior include but are not limited to:

verbal and/or written threats toward an employee, a supervisor or manager and/or members of that persons family . . . .

Violations of this policy may include any or all of the following:

arrest and prosecution for violations of pertinent laws

immediate removal of the threatening individual from the premises pending investigation

disciplinary action up to and including discharge from County employment

B. Administrative Proceedings

Following his discharge, plaintiff exercised his right to an administrative appeal. An administrative hearing was held on February 10, March 8, and March 11, 2005, before Nancy Beezy Micon, a hearing officer appointed by the Commission.

1. Maria Carmen Quezadas Testimony

Ms. Quezada testified at the hearing that she had been employed at the LAC + USC Medical Center for 35 years and had been a supervisor for 20 years. She said that she had known plaintiff since he first started working for the Department. Although Ms. Quezada had never worked directly with plaintiff before she became a supervisor, she had heard that another supervisor had had problems managing him. For this reason, when Ms. Quezada became supervisor of the pulmonary laboratory, she asked that plaintiff not be placed under her supervision. Carolyn Riley, the chief of the pulmonary physiology laboratory, who supervised six laboratory supervisors and oversaw their direction of the subordinate staff, was plaintiffs immediate supervisor.

On November 18, 2003, Ms. Quezada held a staff meeting attended by plaintiff, Ms. De La Fuente, and other laboratory technicians. Toward the end of the meeting, a conflict arose between plaintiff and Ms. De La Fuente, and Ms. De La Fuente accused plaintiff of being a liar.

The following morning, Ms. Quezada convened another meeting with Ms. De La Fuente and two other laboratory technicians, Mary Wong and Deborah Bennett-Jones, to clear the air of bad vibes she perceived existed among them. Ms. Bennett-Jones left the meeting early, but Ms. De La Fuente and Ms. Wong remained and ended the meeting by apologizing to one another.

Approximately 10 minutes later, Ms. Quezada received a telephone call from plaintiff, who was angry and upset. He told Ms. Quezada that he was angry and disappointed at Ms. De la Fuente for calling him a liar, that he was going to put her in her place and teach her to respect him as her supervisor. Ms. Quezada attempted to calm plaintiff down and told him that he had heard a dressed up version of the meeting that had just ended. She instructed plaintiff to take his break, calm down, and then come to her office so that she could explain what had happened in the meeting. Plaintiff continued to tell Ms. Quezada that he was going to put Ms. De La Fuente in her place, and Ms. Quezada had to tell him four times not to approach or talk to Ms. De La Fuente.

After speaking with plaintiff, Ms. Quezada observed Ms. De La Fuente eating her lunch in the staff lounge adjacent to Ms. Quezadas office. She told Ms. De La Fuente that plaintiff was angry and upset, and that he was coming to meet in Ms. Quezadas office. She advised Ms. De La Fuente to stay away from plaintiff in the interim.

Minutes later, Ms. Quezada heard plaintiff shouting in the staff lounge. She quickly entered the staff lounge and saw plaintiff facing Ms. De La Fuente, who was backed into a corner of the room. Plaintiff was shaking his hand at her and pointing at her with his little finger. Another employee, Rosalinda Rosal, was standing between plaintiff and Ms. De La Fuente and attempting to hold plaintiffs arms. Plaintiff was furious and was telling Ms. De La Fuente that he was disappointed with her, that he was going to teach her to respect him, and that he was going to whip . . . , and then he stopped short. Ms. De La Fuente was crying and appeared to be frightened. Ms. Quezada walked over to plaintiff and stood between him and Ms. Rosal. Ms. Quezada said that she was concerned about Ms. De La Fuentes safety.

2. Lupe De La Fuentes Testimony

Ms. De La Fuente testified that she had been employed as a pulmonary physiology technician I at the LAC + USC Medical Center for approximately five years. She was assigned to the pulmonary physiology laboratory in January 2003, where plaintiff worked as the lead technician. Ms. De La Fuente acknowledged calling plaintiff a liar during a laboratory staff meeting on November 18, 2003. According to Ms. De La Fuente, her statement was made in response to plaintiffs accusation that she had made disparaging remarks about two co-workers.

Ms. De La Fuente said that the meeting held in Ms. Quezadas office on November 19, 2003, was an attempt to ease tensions between Ms. De La Fuente and two co-workers, Ms. Wong and Ms. Bennett-Jones. After the meeting, Ms. De La Fuente was having lunch in the lounge area outside Ms. Quezadas office with co-workers Rosalinda Rosal and Leonor Bango, when Ms. Quezada called her over and advised her to stay away from plaintiff, who was angry with her. Approximately 10 minutes later, plaintiff entered the lunch room and walked directly to Ms. De La Fuente. Ms. De La Fuente backed away from plaintiff until she could go no further. Plaintiff stood over her, his face inches from hers, his arms raised, and his fingers pointing in her face. He was very angry, and told Ms. De La Fuente you better watch it and Im going to whip your . . . . Ms. De La Fuente was very afraid and thought that plaintiff was going to hit her.

Ms. Rosal stepped between plaintiff and Ms. De La Fuente and attempted to get plaintiff to put his arm down. Ms. Quezada also intervened and eventually persuaded plaintiff to leave the room. Ms. De la Fuente was so upset over the incident that she consulted a doctor, who advised her to stay home for 10 days.

3. Rosalinda Rosals Testimony

Ms. Rosal testified that she had been employed with the county for 30 years and had been a supervisor in the pulmonary laboratory since the 1980s. She had known plaintiff since he first began working with the county and treated him like her own son. Ms. Rosal was sitting in the lunch room on November 19, 2003, with Ms. De La Fuente and Ms. Bangor when she saw plaintiff enter the room and walk directly to Ms. De La Fuente. Plaintiff was red in the face and very angry and was telling Ms. De La Fuente to stop calling him a liar. Ms. Rosal stood between plaintiff and Ms. De La Fuente, and grabbed plaintiffs arm with both of her hands in an effort to stop him from pointing his finger at Ms. De La Fuentes eyes. Ms. Quezada entered the room and eventually persuaded plaintiff to leave. Immediately after the incident, Ms. Rosal felt sick and began throwing up. She subsequently consulted a doctor, who told her that she was suffering from stress and advised her to take 10 days off from work.

The following day, plaintiff approached Ms. Rosal and asked her if she believed he could have hurt Ms. De La Fuente or anyone else. Ms. Rosal told him that after the incident from the preceding day, she did not know.

4. Statement of Leonor Bango

Leonor Bango did not testify at the hearing, but provided a written statement about the incident on November 19, 2003. Ms. Bangos written statement describes plaintiffs confrontation with Ms. De La Fuente as follows: He approached her and began shouting at her and waving his finger in her face to watch what she says and what comes out of her mouth and quit telling lies and who she calls a liar. After Ms. Rosal and Ms. Quezada intervened, plaintiff continued shouting at [Ms. De La Fuente] over [Ms. Rosal and Ms. Quezada]. Ms. Bangos account further states that Ms. De La Fuente was crying and said: Hes threatening me, can you get him out of here. Im calling security. In an addendum to her written statement, Ms. Bango wrote that Ms. De La Fuente did not say anything threatening in response to plaintiff, and that Deborah Bennett-Jones was not present in the lunch room during the incident.

5. Deborah Bennett-Joness Testimony

Deborah Bennett-Jones testified that she is a pulmonary physiology technician who has known plaintiff since 1991. She said that she was present in the lunch room on November 19, 2003, during the confrontation between plaintiff and Ms. De La Fuente. Plaintiff walked in and told Ms. De La Fuente to stop calling him a liar. According to Ms. Bennett-Jones, Ms. De La Fuente walked toward plaintiff in combative posture, yapping the whole timeand the two proceeded to argue. She said that plaintiff did not threaten Ms. De La Fuente.

6. Carolyn Rileys Testimony

Carolyn Riley, a 29-year employee of the Department and chief of the pulmonary physiology laboratory, testified concerning her experience with plaintiff. Ms. Riley stated that she is responsible for supervising six laboratory supervisors and overseeing their direction of the subordinate staff. Ms. Riley was also plaintiffs immediate supervisor, although plaintiff was not a supervisor himself, Ms. Riley was involved because other supervisors to whom plaintiff would normally have reported were intimidated by him and unable to follow correct disciplinary procedures. Ms. Riley recounted incidents in which other supervisors had complained about plaintiffs behavior and their inability to manage him. During one incident, plaintiff had left a jail ward patient unattended and chained to a chair while plaintiff left the area to make a telephone call. The patient needed to use the restroom and was becoming increasingly agitated. A supervisor asked plaintiff to attend to the patient, and plaintiff responded that he would do so when he was finished with his telephone conversation. When the supervisor persisted, plaintiff responded that the supervisor was interfering with his area of responsibility, and that he knew what he was doing. Plaintiff continued his telephone conversation and did not attend to the patient until he was finished. A memorandum dated December 4, 2000, describing that incident was admitted into evidence.

Ms. Riley stated that Carmen Quezada had also complained to her about difficulties Ms. Quezada had experienced in managing plaintiff. Ms. Riley recalled an altercation between plaintiff and another laboratory technician in which she had to intervene, and said that she, too, had had altercations with plaintiff and instances in which plaintiff had defied her authority and refused to follow directions.

7. Plaintiffs Testimony

Plaintiff testified that Ms. De La Fuente had called him a liar at the meeting on November 18, 2003, after plaintiff said Ms. De La Fuente was complaining about other technicians. He was near Ms. Quezadas office on November 19, 2003, when he overhead Ms. De La Fuente again call him a liar, which upset him. Plaintiff telephoned Ms. Quezada to let her know that he did not appreciate being called a liar, and that he wanted to discuss some things with her. Ms. Quezada asked him to come to her office after lunch to talk, but did not admonish him not to speak with or confront Ms. De La Fuente.

When plaintiff was walking to Ms. Quezadas office, he saw Ms. De La Fuente in the lunch room with Ms. Rosal and Ms. Bangor. When plaintiff made eye contact with Ms. De La Fuente, he said You should stop calling me a liar, which made her angry. She began shouting at plaintiff, and a verbal altercation ensued. Plaintiff admitted pointing his finger at Ms. De La Fuente, but denied threatening her.

8. Other Witnesses and Evidence

Plaintiffs co-workers, Mary Wong, Melvin Chin, and Heshan Ibrahim all testified that they had good working relationships with plaintiff and described difficulties they had working with Ms. De La Fuente. Ms. Wong testified that plaintiff often told her about complaints Ms. De La Fuente had made about her and others in the laboratory. Mr. Chin testified that plaintiff once told him that Ms. De La Fuente had said that Chin did not know how to fix a laboratory machine. Mr. Ibrahim testified that plaintiff once showed him a note Ms. De La Fuente had written accusing Ibrahim of falsifying data.

Plaintiffs job performance evaluations state that his personal relations with the laboratory staff and other personnel were above standard and commendable. A December 2003 performance evaluation states, however, that plaintiff sometimes is not enthusiastic about receiving instruction from management. A December 2001 performance evaluation states that plaintiff complies with the various work instructions, but only after derogatory verbiage with his supervisor as indicated in his written warning dated 12/04/00.

9. Hearing Officers Findings and Recommendation

After the hearing concluded, the hearing officer issued written findings of fact and recommendations. The factual findings included the following: 13. [Plaintiff], disregarding the instructions of area supervisor Quezada to speak with her before speaking with De La Fuente, confronted De La Fuente when he saw her in the lunch room. [Plaintiff], who was furious, directed his rage at De La Fuente, yelling, among other things: you are a PPT I and I am a PPT III, and you should respect me as such. . . . [Plaintiff] then engaged in physical and verbal threatening behavior targeted at employee Lupe De La Fuente. . . . [] 14. [Plaintiff] took the following physical actions that violated the zero tolerance policy: [Plaintiff] advanced upon De La Fuente, who retreated but was eventually backed up between the wall of a counter and a refrigerator; [plaintiff] raised his arms and pointed at De La Fuente in a menacing manner; Even after Rosal stepped between them, [plaintiff] continued to gesture toward De La Fuente in a manner that caused De La Fuente to believe that [plaintiff] wanted to hit her. [] . . . [] 22. Riley received complaints about [plaintiffs] disregard for supervisors and failure to follow instructions. [] . . . [] 24. Testimony from De La Fuentes co-workers, PPTs under [plaintiffs] direction, revealed that their ill feelings about De La Fuente were caused by information they had been told by [plaintiff]. [Plaintiff] was responsible for creating a tense working environment for the technicians under his direction. Should [plaintiff] be reinstated, it is likely that further tension will arise in the workplace. The hearing officer recommended that the Commission sustain plaintiffs discharge.

10. Commissions Action

Plaintiff filed objections to the hearing officers recommendation concerning the proposed discharge. On June 8, 2005, the Commission voted, four-to-one, to reduce the proposed discipline to a 30-day suspension without back pay or benefits. The Department filed objections to the Commissions proposed decision to reject the hearing officers recommended penalty, and the matter came before the Commission for its consideration on August 10, 2005. At the outset of the hearing, the Commissions president noted that the hearing officer in plaintiffs case, Nancy Beezy Micon, had since become the Commissions Executive Officer, but that Ms. Micon had not advised the Commission or participated in any way in its deliberations. The Commission then voted unanimously to sustain the Departments objections and uphold the hearing officers recommendation of discharge. On August 17, 2005, the Commission sent notice of its final action upholding plaintiffs discharge from employment.

C. Mandamus Proceedings

Plaintiff petitioned for administrative mandamus to compel his reinstatement, arguing that the Commission abused its discretion by adopting the hearing officers findings and recommendations because the hearing officer selectively excluded relevant evidence from the record; the hearing officer admitted irrelevant evidence suggesting plaintiff had an ill demeanor and unduly relied on it; the evidence did not suggest a physical altercation between plaintiff and Ms. De La Fuente was imminent; plaintiffs actions were provoked by Ms. De La Fuente; no discipline was imposed on any other employee as a result of the incident; on balance, plaintiffs discharge was unjustified; and the Commission acted arbitrarily when it sustained the hearing officers recommendation after that hearing officer was hired by the Commission as its Executive Officer, and failed to consider new evidence in reversing its earlier decision to reduce the penalty to a 30-day suspension without back pay. After the August 21, 2006 hearing on plaintiffs petition, the trial court concluded that the hearing officer did not fail to consider relevant evidence or unduly rely on irrelevant evidence; the weight of the evidence supported the hearing officers findings; the Commission did not abuse its discretion by adopting the hearing officers findings; and the penalty of discharge was appropriate. The trial court denied plaintiffs petition for writ of mandate, and this appeal followed.

DISCUSSION

I. Standard of Review

The applicable standard of review in a mandamus proceeding depends on the right at issue. When a fundamental vested right is involved, such as the right of an employee to continued employment (McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129), the trial court exercises its independent judgment to determine whether due process requirements were met and whether the agencys findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51 (Kazensky).) An appellate court must sustain the trial courts factual findings if substantial evidence supports them, resolving all conflicts in favor of the prevailing party, and giving that party the benefit of every reasonable inference in support of the judgment. (Kazensky, at p. 52.)

Judicial review of an agencys assessment of a penalty is limited, and the agencys determination will not be disturbed in mandamus proceedings unless there is an arbitrary, capricious or patently abusive exercise of discretion by the agency. (Kazensky, supra, 65 Cal.App.4th at p. 54.) Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed. [Citations.] (California Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th 1575, 1580.) If reasonable minds may differ with regard to the propriety of the disciplinary action, no abuse of discretion has occurred. (County of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 634.) An appellate court conducts a de novo review of the trial courts determination of the penalty assessed, giving no deference to the trial courts determination. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46.)

II. Substantial Evidence Supports the Factual Findings

The trial court found that the weight of the evidence supported the hearing officers factual findings, subsequently sustained by the Commission. Substantial evidence supports that determination.

Plaintiff contends the evidence does not support the factual finding that plaintiff was responsible for creating a tense working environment for the technicians under his direction and that if he were reinstated, it is likely that further tension will arise in the workplace. He maintains that the hearing officer disregarded performance evaluations indicating that plaintiffs personal relations with others were above standards, as well as the testimony of plaintiffs co-workers regarding their good working relationship with him and their poor relationship with Ms. De La Fuente. The factual finding plaintiff challenges further states, however, that testimony from De La Fuentes co-workers, PPTs under [plaintiffs] direction, revealed that their ill feelings about De La Fuente were caused by information they had been told by [plaintiff]. Substantial evidence supports the finding as a whole. Plaintiffs co-workers testified that plaintiff was the source of information about Ms. De La Fuentes complaints about them, and that these complaints caused them to have ill feelings toward her. There is no indication that the hearing officer failed to consider testimony by plaintiffs co-workers that was favorable to him, or the positive aspects of his performance evaluations.

Plaintiff claims the evidence does not support the hearing officers factual finding that Riley received complaints about [plaintiffs] disregard for supervisors and failure to follow instructions. He contends the hearing officer improperly admitted into evidence and relied upon a December 4, 2000 memorandum from an area supervisor to Carolyn Riley describing an incident in which plaintiff had disregarded the supervisors directives. He argues that the memorandum should have been excluded because it dates back to 2000, it was never issued to him, and it was never the basis for any disciplinary action against him. The memorandum, which corroborates other evidence concerning plaintiffs behavior toward and interactions with co-workers and supervisors, was properly admitted. Ms. Riley and Ms. Quezada both testified about difficulties they had experienced while supervising plaintiff. Plaintiffs 2003 and 2001 performance evaluations also reflect difficulties his supervisors encountered in managing him. Substantial evidence thus supports the challenged factual finding.

Plaintiff argues that the evidence does not suggest that a physical altercation between him and Ms. De La Fuente was imminent. The factual findings sustained by the Commission do not state, however, that such an altercation was imminent. The findings concerning plaintiffs physical conduct during the altercation with Ms. De La Fuente, that plaintiff engaged in physical and verbal threatening behavior targeted at employee Lupe De La Fuente; that plaintiff took the following physical actions that violated the zero tolerance policy: [plaintiff] advanced upon De La Fuente, who retreated but was eventually backed up between the wall of a counter and refrigerator; [plaintiff] raised his arms and pointed at De La Fuente in a menacing manner; [e]ven after Rosal stepped between them, [plaintiff] continued to gesture toward De La Fuente in a manner that caused De La Fuente to believe that [plaintiff] wanted to hit her are all supported by substantial evidence.

The record does not support plaintiffs claim that the Commission failed to consider Ms. De La Fuentes conduct as a factor that provoked plaintiff into confronting her. Ms. De La Fuente admitted calling plaintiff a liar, and several witnesses testified that plaintiff was infuriated by that remark. Plaintiffs argument that others, including Ms. De La Fuente, were not subjected to disciplinary action as a result of the November 19, 2003 incident is not relevant to the issue of whether the discipline imposed in his case was proper.

III. No Impropriety in Commissions Actions

Plaintiff suggests that the Commissions final decision upholding the recommended penalty of discharge was improper because the Commission had issued an earlier proposed decision reducing the penalty to a 30-day suspension without pay and the final decision was issued after the hearing officer who conducted plaintiffs administrative hearing, Nancy Beezy Micon, became the Commissions Executive Officer. Plaintiff has presented no evidence of impropriety, and the record indicates that Ms. Micon neither advised the Commission nor participated in any way in its deliberations on the matter. Plaintiff thus failed to establish that the Commissions action was improper.

IV. No Abuse of Discretion in Penalty Assessed

Substantial evidence supports the factual findings sustained by the Commission that were the basis for plaintiffs discharge. The penalty imposed by an administrative agency will not be disturbed in a mandamus proceeding absent a manifest abuse of discretion. (Kazensky, supra, 65 Cal.App.4th at p. 54.) It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown. [Citations.] (Deegan v. City of Mountain View, supra, 72 Cal.App.4th at p. 47.) No such showing has been made here. Sustaining plaintiffs discharge was not an abuse of discretion, and the trial court did not err by denying plaintiffs petition for writ of mandate.

DISPOSITION

The judgment is affirmed. The Department is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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